Exhibit 4.7
Final 23. Jan. 02
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SHARE PURCHASE AGREEMENT
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regarding the acquisition of the shares of
OBTREE TECHNOLOGIES INC., BASEL
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By and between
1. IXOS SOFTWARE AG
Bretonischer Ring 12
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
- "PURCHASER" -
2. VARUMA AG
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
- "VARUMA" -
3. THE SHAREHOLDERS LISTED ON EXHIBIT 01 HERETO
represented as provided by
the powers of attorney attached hereto as Exhibit 02
- "OTHER SHAREHOLDERS" -
- the parties to (1), (2) and (3) also collectively the "PARTIES", each of the
Parties also a "PARTY"; the parties to (2) and (3) collectively also the
"SELLERS", each of the Sellers also a "SELLER" -
PREAMBLE
A. Obtree Technologies Inc. is a Swiss stock corporation with its
corporate seat in Basel, Switzerland, and registered with the
commercial register at Basel under docket no. CH-270.3.002.243-8 (the
"COMPANY"). The share capital of the Company amounts to CHF
7,434,744.50 and is split into 14,869,489 shares with a nominal
participation in the share capital of CHF 0.50 per share. The shares
are not listed on a stock exchange. 14,790,347 of these shares are
issued to the shareholders of the Company, (collectively the "SHARES",
individually the "SHARE"), the remaining 79,142 shares are treasury
stock held by the Company itself. No share certificates have been
issued.
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B. Varuma holds 9,477,735 shares in the Company and the Other Shareholders
hold 4,783,218 shares in the Company (collectively the "SELLERS'
SHARES").
C. Purchaser is interested to acquire 100 % of the shares of the Company
by acquiring the Sellers' Shares by executing this Agreement and the
remaining shares (the "REMAINING SHARES") in the Company from the
shareholders listed in EXHIBIT C (the "REMAINING SHAREHOLDERS") by
entering into share purchase agreements at conditions equal to the ones
contemplated by this Agreement with the Remaining Shareholders (the
"REMAINING AGREEMENTS").
D. The Sellers wish to sell the Sellers' Shares to Purchaser, and
Purchaser wishes to purchase the Sellers' Shares.
E. Where mentioned in this Agreement, Varuma shall act as agent (the
"AGENT") for the Sellers.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. SALE OF SELLER'S SHARES
1.1 Sellers hereby sell the Sellers' Shares to Purchaser with all rights
and obligations pertaining thereto. Purchaser hereby accepts the sale.
1.2 The sale of the Sellers' Shares is subject to the payment of the Share
Price to the Escrow Accounts in accordance with Section 2 below.
1.3 The sale of the Sellers' Shares shall include all ancillary rights
appertaining thereto (Nebenrechte), including the rights to any
undistributed profits from any periods prior to the day of signing of
this Agreement ("SIGNING DATE") and the rights to dividends for the
full fiscal year 2002.
1.4 Beneficial title to the Sellers' Shares shall pass (wirtschaftlicher
Ubergang) to Purchaser as of February 1, 2003, 0:00 hours (the
"EFFECTIVE DATE").
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2. SHARE PRICE/ESCROW ACCOUNT
2.1 As purchase price for the sale and transfer of the Sellers' Shares
pursuant to Section 1.1 above Purchaser shall pay to Sellers a cash
consideration of CHF 0.52 (in words: Swiss Francs zero and fifty two
cents) per Sellers' Share (hereinafter the "SHARE PRICE") subject to
the Share Price Adjustment as set out in Section 2.3.
2.2 The Share Price is based on an enterprise value of (Share Price
multiplied by the number of 14,790,347 Shares) CHF 7,690,980.44 (in
words: Swiss Francs seven million six hundred ninety thousand nine
hundred eighty and forty four cents) assessed on the assumption that
the Actual Net Equity (as defined hereinafter) amounts per December 31,
2002 to CHF -6,000,000.00 (in words: Swiss Francs minus six million)
(the "GUARANTEED NET EQUITY"). "Actual Net Equity" means the
consolidated net equity of the Company and its subsidiaries (the
"COMPANIES") according to US GAAP as per December 31, 2002. The Company
will in its Financial Statements as defined in Section 4.4 provide for
a general provision of at least CHF 800,000.00 (in words: Swiss Francs
eight hundred thousand) covering (among other claims and risks) claims
from Mepomuk Software GmbH against the Company and tax claims and risks
(without subdividing or allocating the provision to specific claims and
risks).
2.3 Not later than 15 (fifteen) Banking Days after the Signing Date, the
Company shall submit to the Parties the audited Financial Statements as
defined in Section 4.4. The Financial Statements shall be prepared
under the direction of ▇▇▇▇▇ ▇▇▇▇▇ as provided in Section 4.4.
Purchaser shall direct the Company to give ▇▇▇▇▇ Jenni and his team
fullest support to prepare the statements. In case that the Actual Net
Equity falls short of the Guaranteed Net Equity, the Share Price as
stated in Section 2.1. above shall be reduced as follows (the "SHARE
PRICE ADJUSTMENT"):
For each CHF that the Actual Net Equity falls short of the Guaranteed
Net Equity, the enterprise value as determined in Section 2.2 above
shall be reduced accordingly and a new price per Share shall be
calculated on the basis of the reduced enterprise value; provided that
such reduction shall only take place if the difference between the
Actual Net Equity and the Guaranteed Net Equity is more than CHF
500,000.00 (Freigrenze).
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The maximum Share Price Adjustment shall be CHF 0.19 (in words Swiss
Francs zero and nineteen cents) per Share.
2.4 On the Signing Date, the Share Price shall be paid as follows:
- an amount of CHF 6,702,647.91 equal to CHF 0.47 (in words:
Swiss Francs zero and forty seven cents) per Sellers' Share,
shall be paid to the Escrow Account I (as defined in Section
2.5, the "ESCROW AMOUNT I") and
- an amount of CHF 713,047.65 equal to CHF 0.05 (in words: Swiss
Francs zero and five cents) per Sellers' Share shall be paid
to the Escrow Account II (as defined in Section 2.6, the
"ESCROW AMOUNT II").
2.5 Prior to the Signing Date, Purchaser and Agent shall open with a
reputable Swiss bank to be designated by Purchaser and Agent (the
"ESCROW AGENT") a bank account to be jointly held by Agent and
Purchaser ("UND"-Konto, the "ESCROW ACCOUNT I") to receive payment by
Purchaser of the Escrow Amount I.
Unless provided otherwise in this Agreement, the Escrow Account I shall
be subject to the terms and conditions agreed upon between the Agent
and Purchaser on the one side and the Escrow Agent I on the other side.
Purchaser shall open the Escrow Account I in agreement with the Agent.
Interest accrued on the Escrow Account I shall be added to and
considered to be part of the Escrow Amount I. The fees and expenses of
the Escrow Agent shall be paid by the Purchaser.
The Escrow Agent shall be instructed to release any funds on the Escrow
Account I only
2.5.1 in accordance with corresponding (ubereinstimmenden) written
instructions by Agent and Purchaser, or
2.5.2 to Varuma on behalf of Sellers within twelve Banking Days
after presentation by the Company of the audited Financial
Statements to the Purchaser as defined in Section 4.4 the
Escrow Amount I except for the amount of the Escrow Account I
for which the Purchaser can provide proof of a pending court
action between Sellers and Purchaser regarding the Share Price
Adjustment in accordance with Section 2.3 hereof or regarding
a rescission in accordance with Section 3 hereof, in each case
including a
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specific request relating to the attribution of the remaining
Escrow Amount I.
2.6 Prior to the Signing Date, Agent and Purchaser shall open with the
Escrow Agent a second bank account to be jointly held by Agent and
Purchaser ("UND"-Konto, the "ESCROW ACCOUNT II") to receive payment by
Purchaser of the Escrow Amount II. The funds on the Escrow Account II
shall serve as collateral for Purchaser with respect to any claims of
Purchaser against Sellers under or in connection with this Agreement.
Unless provided otherwise in this Agreement, the Escrow Account II
shall be subject to the terms and conditions agreed upon between the
Agent and Purchaser on the one side and the Escrow Agent II on the
other side. Purchaser shall open the Escrow Account II in agreement
with the Agent. Interest accrued on the Escrow Account II shall be
added to and considered to be part of the Escrow Amount II. The fees
and expenses of the Escrow Agent shall be paid by the Purchaser.
The Escrow Agent shall be instructed to release any funds on the Escrow
Account II only
2.6.1 in accordance with corresponding (ubereinstimmenden) written
instructions by Agent and Purchaser, or
2.6.2 to Purchaser in such amounts in which payment claims of
Purchaser against Sellers have been adjudicated by court
judgment (gerichtliches Urteil), arbitral award
(Schiedsspruch) or other enforceable instrument (sonstiger
Vollstreckungstitel) in all cases upon presentation by
Purchaser of an original (Ausfertigung) of the respective
instrument, or
2.6.3 pursuant to the following paragraph:
On June 30, 2004, unless Agent and Purchaser have instructed
the Escrow Agent otherwise or unless Purchaser can provide
proof of a pending court action between Sellers and Purchaser
in connection with this Agreement that includes a specific
request relating to the attribution of the remaining Escrow
Amount II, the Escrow Agent shall release to Agent (on behalf
of Sellers) the funds then remaining on the Escrow Account II.
3. RESCISSION RIGHTS (RUCKTRITTSRECHTE)
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3.1 Purchaser shall have the right to withdraw from this Agreement without
any liability to the Sellers if
3.1.1 according to a review of the audited Financial Statements
(with an unqualified auditors' opinion as defined in Section
4.4) by Ernst & Young, Frankfurt, the difference between
Guaranteed Net Equity and Actual Net Equity exceeds CHF
3,000,000.00 (Swiss Francs three million); or
3.1.2 if Other Shareholders withdraw from this Agreement, for
reasons whatsoever and if because of such withdrawal the
Purchaser's shareholding in the Company falls below 90% of the
Shares of the Company; provided that the Purchaser may only
rescind if (i) the acceptance period for the offer to the
Remaining Shareholders according to Section 7.3 has expired
and (ii) the Company and the Purchaser are unable to reach 90%
shareholding by way of capital reduction and increase of the
share capital by CHF 5'000'000.--.
3.2 Purchaser shall have the right to withdraw according to Section 3.1.1
above not later than 10 (ten) Banking Days after presentation by the
Company of the audited Financial Statements to the Purchaser as defined
in Section 4.4; the right to withdraw under Section 3.1.2 shall be
exercisable within 60 (sixty) Banking Days following the Signing Date.
4. SELLERS' GUARANTEES
Sellers hereby represent (sichern zu) and warrant (garantieren) to
Purchaser that the following statements are complete and correct in all
respects and are not misleading, in each case as of the Signing Date
(the "SELLERS GUARANTEES"):
4.1 Organization and Qualification. The Companies are duly organized and
validly existing under the laws under which they have been incorporated
and have full right and authority to own and to operate their
properties and to engage in the business in which they are now engaged.
4.2. Capital Structure. All Shares have been validly issued and fully paid
in. No further capital, non-voting stock, convertible securities or
similar rights in the Companies have been created or issued or agreed
to be issued by the Signing Date.
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4.3 Ownership. Sellers are the sole owners of and have good and valid title
to the Sellers' Shares, which are free and clear of all liens,
encumbrances, options, charges, equities and claims arising from any
privilege, pledge or security arrangement. The Sellers have full right
and capacity to transfer and sell complete title to the Sellers'
Shares. The Company owns all the issued and outstanding shares of the
Subsidiaries.
4.4 Financial Statements. The complete consolidated financial statements of
the Company and the financial statements of its subsidiaries as audited
(including in each case, where applicable, the balance sheet (Bilanz),
the profit and loss statement (Gewinn- und Verlustrechnung), the notes
(Anhang), the business report (Geschaftsbericht), and to the extent
required by the applicable GAAPs the cash flow statement and the equity
consolidation, collectively the "FINANCIAL STATEMENTS") for the fiscal
years ending December 31, 2001 and 2002 have been (a) prepared in
accordance with US-GAAP (the consolidated group), UK-GAAP (Obtree
Technologies UK Ltd.) and Swiss GAAP (the Company and Obtree
Technologies Switzerland AG) and accounting practices commonly adopted
by companies carrying on business similar to those carried out by the
Companies utilizing and continuing the same capitalization and election
rights as well as valuation principles used by the Companies (in all
cases in accordance with applicable GAAP) in preparation of its monthly
account for September 2002. If there remain valuation, election and
other discretion rights, such discretion shall be exercised in the best
interest of the Sellers. (b) The Financial Statements present a true
and fair view of the net worth as well as of the assets and liabilities
(Vermogenslage), the financial position (Finanzlage) and the earnings
position (Ertragslage) of the Companies. (c) The Financial Statements
have been properly audited and an unqualified auditors' opinion
(Bericht der Revisionsstelle) has been affixed, whereby a note in the
opinion saying that the equity is less than half of the share capital
but that there is no need to call a general meeting of the shareholders
in accordance with Art. 725 para. (1) of the Swiss Code of Obligations
because there is subordinated debt exceeding the difference between
equity and half of the share capital shall not be considered to be a
qualification.
In particular, on December 31, 2002 the Companies had good and clear
title free of all liens and/or other encumbrances whatsoever to all
assets listed on the respective balance sheets except as declared
otherwise in the Financial Statements.
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4.5 Claims of Mepomuk Software GmbH. Except and to the extent as provided
for in the Financial Statements, the setting-off of claims between the
Company and Mepomuk Software GmbH will not be contested by an
insolvency receiver appointed for Mepomuk Software GmbH and no claims
of Mepomuk Software GmbH can be raised against the Company based on
German corporate or insolvency law.
4.6. Insolvency of Companies. Except for Mepomuk Software GmbH, no
insolvency proceedings have been, or have been threatened to be,
applied for regarding the assets of the Companies and there are no
circumstances which would require the initiation of such proceedings.
None of the Companies have stopped or suspended payment of their debt
or otherwise become insolvent or over-indebted. No circumstances exist
pursuant to any applicable bankruptcy laws which would justify the
voidance of this Agreement. No debt settlement arrangement between any
of the Companies and its creditors has been proposed or agreed.
4.7 Claims and Litigation. Except and to the extent as provided for in the
Financial Statements, there are no actions, suits or proceedings
pending against the Companies either in court or before any
administrative board, agency or commission.
4.8 Taxes. Except and to the extent as provided for in the Financial
Statements, the Companies have paid all taxes which have become due by
December 31, 2002, especially the Companies do not have any obligations
to pay VAT for any time period before ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ von Mehrwertsteuer fur Zeitraume vor dem
Signing Date), and there is no further liability for any such taxes to
be paid for any time period before December 31, 2002 and no interests
or penalties accrued or accruing with respect thereto.
4.9 Intellectual Property/Know-how. The Companies own or have adequate
license to use all the know-how and all patents, trademarks, trade
names, copyrights and other intellectual property rights which are
necessary for the conduct of their business as it is conducted at the
Signing Date. In particular, all the patents, tradenames, copyrights
and trademarks set forth in EXHIBIT 4.9 are valid and owned by the
Companies. To the best knowledge of the Sellers these patents,
tradenames, copyrights and trademarks do not violate the rights of any
third party and third parties do not have any rights to such patents,
tradenames, copyrights and trademarks and the Companies have no
obligations to disclose such patents, tradenames, copyrights and
trademarks to any third parties.
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4.10 Fees of Vischer Anwalte. The lawyers of the Company, Vischer Anwalte,
have not invoiced fees in connection with this transaction exceeding
CHF 50,000.00 for the time between November 1, 2002 and the Signing
Date.
5. REMEDIES FOR PURCHASER
5.1 In the event of a breach of the Sellers' Guarantees under Section 4,
amounts equal to Sellers' pro rata share (as defined in Section 5.7) of
the damages shall be released to Purchaser from the Escrow Account II
pursuant to the following provisions.
5.2 In the event of a breach of the Guarantee in Section 4.5 (Mepomuk), the
damage shall be equal to the claims of Mepomuk Software GmbH or its
insolvency estate against the Company.
5.3 In the event of a breach of the Guarantee in Section 4.8 (Taxes), the
damage shall be equal to the additional taxes, interest and penalties.
5.4 In the event of a breach of the Seller's Guarantee in Section 4.4, the
Parties shall recalculate the Actual Net Equity as per December 31,
2002 as if there had been no breach and as if additional amounts due to
remedy the damage had been duly reflected. The Parties then shall
redetermine whether such revised Actual Net Equity would have had lead
to a Share Price Adjustment under Section 2.3 paragraphs 1 and 2 (i.e.,
reflecting the "Freigrenze", but disregarding the maximum amount). If
this would have been the case, the damage shall be equal to such
recalculated Share Price Adjustment multiplied with Sellers' Shares.
5.5 In the event of a breach of any other Seller's Guarantees the damage
shall be equal to the amount necessary to restore the damage suffered
by the Purchaser to the warranted position (Schadensersatz).
5.6 All claims of Purchaser arising under this Agreement shall be
time-barred on or after June 30, 2004. except for all claims of
Purchaser in respect of liabilities for defects of title arising from a
breach in respect of Section 4.3 which shall be time barred on or after
the 7th anniversary of the Signing Date, but which will continue to
exist only against the individual Seller in breach of Section 4.3.
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5.7 The liability of each Seller for each damage shall be prorated in
relation to each Seller's shareholding. The aggregate liability of the
Sellers under Section 5.1 is in any event limited to CHF 0.05 (in
words: Swiss Francs zero and five cents) per Sellers' Share.
5.8 The Purchaser shall solely recover damages from the Escrow Account.
There shall be no personal liability of the Sellers under Sections 4
and 5 of this Agreement. The maximal amount of damages payable to the
Purchaser under Sections 4 and 5 of this Agreement shall be limited to
the Escrow Account.
5.9 The Parties are in agreement that the remedies that the Purchaser may
have against each Seller individually 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 Purchaser.
5.10 No information not expressly contained in this Agreement or any of the
Exhibits thereto shall be held against the Purchaser in respect of any
Sellers' Guarantees as set out in Section 4 in this Agreement.
5.11 When circumstances become evident that will lead to a breach of
Guarantee, the Purchaser shall without undue delay inform the Agent,
and the Purchaser and the Company shall use their best efforts to
prevent and reduce the damage as much as possible.
6. PRESS RELEASES
6.1 Neither Party shall, without the prior written consent of Purchaser and
Agent, disclose the contents of this Agreement to third parties or make
any information relating thereto available to third parties until the
first public announcement. 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).
6.2 Except for disclosures or statements required under applicable laws or
regulations, the press releases or public statements by one Party in
connection with this Agreement shall be mutually agreed upon between
Purchaser and Agent prior to the release hereof.
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7. MISCELLANEOUS
7.1 The Purchaser shall elect new members of the board of directors of the
Company (Mitglieder des Verwaltungsrats) and shall resolve to release
fully all of the members of the board of directors of the Company
having resigned as of the Signing Date at the shareholders' meeting
scheduled for February 7, 2002. Promptly thereafter, the resignations
of the members having resigned from their position effective as of the
Signing Date, shall be filed with the registry of commerce.
7.2 Varuma hereby waives in favour of the Company its right to partly
convert the loan granted to the Company in the amount of CHF 5,000,000
("Loan Amount") into equity of the Company and agrees to accept
repayment at any time. The Purchaser agrees (i) to direct the Company
to repay the loan and accrued interest on or before March 31, 2003, and
(ii), if the Company fails to make the payment, to repay the Loan
Amount and accrued interest itself to Varuma on behalf of the Company.
7.3 Promptly after the Financial Statements have been submitted pursuant to
Section 2.3, the Purchaser shall make an offer to all Remaining
Shareholders to buy the Remaining Shares at a price equal to the Share
Price and with an equal deduction payable to the Escrow Account I
(unless settled before) and the Escrow Account II and at the same
conditions as contemplated by this Agreement.
7.4 Subject to Section 4.10 hereof, all expenses, costs, fees and charges
in connection with the transactions contemplated under this Agreement
including, without limitations, legal services, shall be borne by the
Party commissioning the respective costs, fees and charges.
7.5 In this Agreement the headings are inserted for convenience only and
shall not affect the interpretation of this Agreement; where a German
term has been inserted in italics it alone (and not the English term to
which it relates) shall be authoritative for the purpose of the
interpretation of the relevant English term in this Agreement. All
Exhibits to this Agreement constitute an integral part of this
Agreement.
7.6 "BANKING DAYS" shall mean days banks are open for Banking in Basel,
Switzerland.
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7.7 Amendments to this Agreement, including this provision, must be made in
writing (including telecopy) by the Parties or in any other legally
required form, if so required.
7.8 The Sellers shall not be entitled to assign any rights or claims under
this Agreement without the written consent of the Purchaser.
7.9 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 Purchaser: with copy to:
IXOS Software AG Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bretonischer Ring ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Theatinerstrasse 23
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
for Sellers: with copy to:
Varuma AG ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Neuhofweg 11 Vischer Anwalte und ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Aeschenvorstadt 4 Postfach 526
Attn.: ▇▇▇▇▇▇ ▇▇▇▇ 4010 Basel, Switzerland
7.10 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.
7.11 This Agreement shall be governed by and construed in accordance with
the laws of Switzerland. The exclusive jurisdiction for legal actions
from or in connection with this Agreement is Basel, Switzerland.
[SIGNATURE PAGE FOLLOWS]
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This 23rd day of January 2003
/s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------ ------------------------------ -------------------------------
IXOS Software AG Varuma AG
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, as representative
of the Other Shareholders
