EXHIBIT 5
to SCHEDULE 13D
SHARE PURCHASE AGREEMENT
By and between
1. General Atlantic Partners (Bermuda), L.P.
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx
Xxxxxxxx XX 11
Bermuda
as "GAP LP"
2. GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXX
as "GAP COINVESTMENT"
3. GapStar, LLC
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXX
as "GAPSTAR"
4. GAPCO GmbH & Co. KG
c/o General Atlantic Partners GmbH
Xxxxxxxxxxx 00
00000 Xxxxxxxxxx
as "GAPCO KG"
GAP LP, GAP Coinvestment, GapStar and GAPCO KG,
collectively, as the "PURCHASERS"
[GRAPHIC OMITTED - LOGO] FRESHFIELDS BRUCKHAUS XXXXXXXX
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5. Xxxxxxxx Xxxxxx
Xxxxxxxxxx(xxxx)x 0x
00000 Xxxxxxx
6. Xxxxx Xxxxxx
Xxxxxxxxxx(xxxx)x 0x
00000 Xxxxxxx
the Parties to 5. through 6., collectively, as the "SELLING STOCKHOLDERS"
dated August 12, 2002
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PREAMBLE
A. IXOS SOFTWARE AG is a German stock corporation with its corporate seat
in Grasbrunn and registered in the commercial register at the lower
court Munich under HRB 116846 (the "Company"). The share capital of the
Company amounts to Euro 19,724,659.00 and is split into 19,724,659
non-par value bearer shares (NENNWERTLOSE, AUF DEN INHABER LAUTENDE
STUCKAKTIEN) with a nominal participation in the share capital of Euro
1.00 per share. The shares are listed on the Regulated Market with
trading at the Neuer Markt Segment of the Frankfurt Stock Exchange
(listing number 506150) and have a quotation on the Nasdaq National
Market (listing number 916742) through an ADR program in the United
States.
The Company's shares are evidenced in three global share certificates
(GLOBALURKUNDEN) and in three global dividend certificates related
hereto (SAMMELGEWINNANTEILSSCHEINE) (collectively "CERTIFICATES"). The
Certificates are held in trust by Clearstream Banking AG, Frankfurt.
B. The Selling Stockholders hold the following shares in the Company:
-----------------------------------------------------------------------
SELLING STOCKHOLDER NUMBER OF SHARES
-----------------------------------------------------------------------
Xxxxxxxx Xxxxxx 1,569,050
-----------------------------------------------------------------------
Xxxxx Xxxxxx 1,176,500
-----------------------------------------------------------------------
All shares held by the Selling Stockholders are collectively referred
to hereinafter as "SELLING STOCKHOLDERS' SHARES".
C. Purchasers are interested to acquire up to approx. 29.9% of the shares
of the Company by (i) subscribing for up to 1,800,000 new shares to be
issued to Purchasers in a capital increase from authorized capital
(GENEHMIGTES KAPITAL) with exclusion of the pre-emption rights in
accordance with Section 5.5 of the Company's articles of association
(the "CAPITAL INCREASE") and (ii) acquiring shares directly from the
Selling Stockholders and from Hans and Xxxxxxx Xxxxxx-Xxxxxxxxxx (the
"OTHER STOCKHOLDERS") by entering into a share purchase agreement with
the Other Stockholders (the "OTHER AGREEMENT"). For purposes of
subscribing for the new shares in the context of the Capital Increase
Purchasers and the Company envisage to enter into a participation
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agreement outlining their respective obligations in the course of the
Capital Increase (the "PARTICIPATION AGREEMENT").
The Parties are aware and know that the Purchasers and the Selling
Stockholders may possess certain non-public information concerning the
Company and its subsidiaries. The Parties hereby explicitly confirm
that they have entered into this Agreement irrespective of any
non-public information and that the purchase price to be paid by the
Purchasers to the Selling Stockholders under this Agreement has been
determined on a valuation of the Company which is independent from the
stock exchange price for the Company's shares.
D. The Selling Stockholders wish to sell an aggregate of 1,800,000 Selling
Stockholders' Shares (the "PURCHASED SHARES") to Purchasers, and
Purchasers wish to purchase the Purchased Shares at a price equal to
EUR 6.50 per share.
The Selling Stockholder' Shares which remain with the Selling
Stockholders and are not sold to the Purchasers are set forth in ANNEX
I and are collectively referred to hereinafter as the "REMAINING
SHARES".
Now, therefore, the Parties agree as follows:
SECTION 1
SALE AND ASSIGNMENT OF PURCHASED SHARES
1.1 Selling Stockholders hereby sell and assign their respective Purchased
Shares (see Preamble D. above and Annex I) to Purchasers with all
rights and obligations pertaining thereto. Moreover, Selling
Stockholders hereby assign to Purchasers their respective claims for
delivery (HERAUSGABEANSPRUCH) of the Certificates vis-a-vis Clearstream
Banking AG. The Purchased Shares shall be allocated among GAP LP, GAP
Coinvestment, GapStar and GAPCO KG as set forth in the ANNEX II hereto.
Purchasers hereby accept these sales and assignments.
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1.2 The sale and assignment of the respective Purchased Shares and the
assignment of the claims for delivery of the Certificates is subject to
all Conditions Precedent (as defined in Section 3.2 below) and to the
conditions precedent set forth in Section 7c. The assignment of the
respective Purchased Shares is also subject to (additional condition
precedent; AUFSCHIEBENDE BEDINGUNG) the payment of the respective
Individual Purchase Price (as defined in Section 2.2 below) in
accordance with Section 2 below.
1.3 Purchasers shall inform Selling Stockholders in writing without undue
delay that the Conditions Precedent (as defined in Section 3.2 below)
and the conditions precedent set forth in Section 7c have been
fulfilled. For purposes of this notification, Xxxxxx, Schonberger &
Partner, attn: Xx. Xxxxx X. Xxxxxx (see Section 8.7 below) shall act as
a representative of the Selling Stockholders
(EMPFANGSBEVOLLMACHTIGTER). Without undue delay after receipt of this
notification, the Selling Stockholders shall give irrevocable
instructions to their respective deposit bank (with a copy to
Freshfields Bruckhaus Xxxxxxxx, attn. Dr. Xxxxx Xxxxxxxx (see below
Section 8.7)) to transfer the Purchased Shares to a single depository
account of Purchasers to be notified to Selling Stockholders by
Purchasers prior to Closing against simultaneous (ZUG-UM-ZUG) payment
of the Individual Purchase Price (as defined in Section 2.2).
1.4 Purchasers are exclusively entitled to the profits of the current
business year as well as the profits of preceding business years not
yet distributed to the Selling Stockholders (i.e. profits carried
forward and profits of preceding business years with respect to which
no resolution to distribute the profits has been passed).
SECTION 2
PURCHASE PRICE
2.1 As purchase price for the sale and assignment of the Purchased Shares
pursuant to Section 1.1 above Purchasers shall pay to Selling
Stockholders a cash consideration of EUR 6.50 (in words: Euro six and
fifty cents) per Purchased Share. The purchase prices paid to the
Selling Stockholders shall be allocated among GAP LP, GAP Coinvestment,
GapStar and GAPCO KG as set forth in the ANNEX II hereto.
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2.2 The purchase price paid to each Selling Stockholder according to the
preceding Section 2.1 and Annex II (the "INDIVIDUAL PURCHASE PRICE")
shall be made by wire transfer against simultaneous (ZUG-UM-ZUG)
transfer of the Purchased Shares to the depository accounts of
Purchasers (see Section 1.3 above) to the following Selling
Stockholder's bank accounts:
Xxxxxxxx Xxxxxx
Bank: Dresdner Bank, Munchen
Bank Sorting Code : 700 800 00
Account No.: 368964500
Xxxxx Xxxxxx
Bank: Dresdner Bank, Munchen
Bank Sorting Code : 700 800 00
Account No.: 322889700
2.3 Each Individual Purchase Price is payable on the date of Closing (as
defined in Section 3.1).
2.4. In the event that an Individual Purchase Price is not paid in
accordance with this Section 2, Purchasers shall pay to the affected
Selling Stockholders 4 % p.a. interest above the prevailing three
months Frankfurt EURIBOR rate as published on Closing for the prior
Banking Day in the BORSEN-ZEITUNG on any outstanding portion thereof.
SECTION 3
SIGNING, CLOSING, CONDITIONS PRECEDENT
3.1 Signing and Closing shall each have the following meaning:
3.1.1 "SIGNING" shall be the day on which this Agreement has been
duly executed.
3.1.2 "CLOSING" shall be not later than five Banking Days (as
defined in Section 8.3) after the Conditions Precedent (as
defined in the Section
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3.2) and the conditions precedent set forth in Section 7c have
been fulfilled.
3.2 The sale and assignment of the Purchased Shares to Purchasers is - in
addition to the payment of the Individual Purchase Price (see Section
2.2 above) - subject to the following conditions precedent
(AUFSCHIEBENDE BEDINGUNGEN) (the "CONDITIONS PRECEDENT"), unless one or
all of them have been duly waived by the Purchasers:
3.2.1 The Purchasers have subscribed for up to 1,800,000 new shares
of the Company to be issued in the Capital Increase as
contemplated in the Participation Agreement and the Company
has filed for the registration of the consummation of the
Capital Increase in the commercial register.
3.2.2 In so far as the proposed concentration is subject to the
German Act against Restraints on Competition (GWB), one of the
following must take place:
(i) Notification from the Federal Cartel Office (FCO)
that the prohibition requirements according to Sec.
36 GWB are not fulfilled; or
(ii) Expiry of the one month time limit from submission of
a complete notification to the FCO as laid down in
Sec. 40 para 1 GWB, without the parties having been
notified by the FCO that it has entered into the
examination of the proposed concentration; or
(iii) Expiry of the four month time limit, or an extended
time limit, from submission of a complete
notification to the FCO as laid down in Sec. 40 para
2 GWB, without the FCO having issued a prohibition
order.
3.2.3 Insofar as the planned concentration has to be notified in
other countries in accordance with the anti-trust laws
applicable in those countries and execution of the proposed
concentration is prohibited until the proposed concentration
has been approved by the appropriate
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national cartel authorities, the national cartel authorities
in these countries must have give all the necessary approvals.
3.2.4 The conditions precedent set forth in Section 7c shall have
been satisfied.
SECTION 4
SELLING STOCKHOLDERS' GUARANTEES
4.1 Each of the Selling Stockholders guarantees (GARANTIERT) to Purchasers
by way of an independent guarantee pursuant to ss. 311 (1) German Civil
Code (BGB) and subject to the limitations seT forth in Section 5 that
the following statements are true and correct as of Signing and of
Closing (collectively "SELLING STOCKHOLDERS' GUARANTEES"):
4.1.1 Such Selling Stockholder has the legal capacity to execute,
deliver and perform his or its obligations under this
Agreement.
4.1.2 The execution, delivery and performance by such Selling
Stockholder of this Agreement and the transactions of such
Selling Stockholder contemplated hereby, (i) if applicable,
have been duly authorized by all necessary action of the
Selling Stockholder, (ii) do not violate, conflict with or
result in any breach or contravention of, or the creation of
any security interest under, any contractual obligation of
such Selling Stockholder, or any legal requirement or order
applicable to such Selling Stockholder, and (iii) do not
violate any judgment, injunction, award, decree or order of
any nature or any agreement against, or binding upon, such
Selling Stockholder. Such Selling Stockholder is not party to,
or bound by, any agreement that is currently in effect,
granting rights to any third party which are inconsistent with
the rights to be granted by such Selling Stockholder in this
Agreement.
4.1.3 The Company is duly incorporated and validly existing under
the laws of Germany. The Purchased Shares as described in
Annex II and all rights pertaining thereto (i) exist in the
amounts set out herein and (ii) are fully paid-up and have not
been repaid.
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4.1.4 Such Selling Stockholder owns beneficially its Purchased
Shares being sold to the Purchasers and has good and valid
title to such Purchased Shares which are free and clear of any
third party rights, and are not pledged, assigned, charged or
used as a security. Such Selling Stockholder has the
unrestricted power and authority to transfer its Purchased
Shares to the Purchasers.
4.1.5 Except for any filings mandatory under statutory law (e.g.,
without limitations, filings in accordance with the German
Securities Trading Act (WPHG)) or any waiting periods under
the current xxxxxxx xxxxxxx policy of the Company to which the
Selling Stockholders are subject (if applicable), no approval,
compliance, exemption, or other action by, or notice to, or
filing with, any Regulatory Authority or any other third
party, and no lapse of a waiting period under any legal
requirement, order or contractual obligation is necessary or
required in connection with the execution, delivery or
performance, by or enforcement against such Selling
Stockholder of this Agreement or the transactions of such
Selling Stockholder contemplated hereby.
4.1.6 This Agreement has been duly executed and delivered by such
Selling Stockholder and constitutes the legal, valid and
binding obligation of such Selling Stockholder, enforceable
against such Selling Stockholder under German law in
accordance with its terms, except as enforceability may be
limited by applicable insolvency or other similar laws
relating to or affecting the rights of creditors.
4.1.7 There are no actions, suits, proceedings, claims, arbitrations
or investigations pending or, to the knowledge of such Selling
Stockholder, threatened, against such Selling Stockholder
which could impact the validity of the transfer of title to
the Purchased Shares and/or the clearance of the Purchased
Shares of any third party rights.
4.1.8 This Agreement does not contain any untrue statements by the
Selling Stockholders.
4.1.9 Such Selling Stockholder (i) knows that the Purchasers may
possess certain non-public information concerning the Company
and/or its subsidiaries that may or may not be independently
known to such
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Selling Stockholder (all of such non-public information
referred to in this paragraph is hereinafter referred to as
the "NON-PUBLIC Information"), (ii) has entered into this
Agreement and agrees to consummate the transactions
contemplated by this Agreement notwithstanding that it is
aware that the Non-Public Information may exist and that the
Non-Public Information has not been disclosed to such Selling
Stockholder, (iii) confirms and acknowledges that neither the
existence of Non-Public Information, the substance of any
Non-Public Information nor the fact that Non-Public
Information has not been disclosed to such Selling Stockholder
is material to it or to its determination to enter into this
Agreement and consummate the transactions contemplated hereby,
(iv) acknowledges that it is a sophisticated seller with
respect to the Purchased Shares and has independently and
without reliance upon the Purchasers or the Company and based
on such information as such Selling Stockholder has deemed
appropriate in its independent judgment made its own analysis
and decision to enter into this Agreement and (v) acknowledges
that the Purchasers have not made and do not make any
representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this
Agreement and the Purchasers have no obligations to such
Selling Stockholder, whether express or implied, including,
without limitation, fiduciary obligations, except for those
express obligations set forth herein.
4.2 "REGULATORY AUTHORITY" shall be defined as the government of any
nation, state, city, locality or other political subdivision thereof,
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including,
without limitations, the Deutsche Borse AG.
4.3 Except for the Selling Stockholder's Guarantees as set forth in Section
4.1 the Selling Stockholders do not give any additional guarantees in
respect to the Purchased Shares and/or the Company.
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SECTION 4A
PURCHASERS' GUARANTEES
4a.1 Each of the Purchasers guarantees (GARANTIERT) to Selling Stockholders
by way of an independent guarantee pursuant to ss. 311 (1) German Civil
Code (BGB) and subject to the limitations seT forth in Section 5a that
the following statements are true and correct as of Signing and of
Closing (collectively "PURCHASERS' GUARANTEES"):
4a.1.1 Such Purchaser has the power and authority to execute, deliver
and perform its obligations under this Agreement.
4a.1.2 The execution, delivery and performance by such Purchaser of
this Agreement and the transactions of such Purchaser
contemplated hereby, (i) have been duly authorized by all
necessary action of the Purchaser, (ii) do not contravene the
terms of the organizational documents, or any amendment
thereof, of such Purchaser, (iii) do not violate, conflict
with or result in any breach or contravention of, or the
creation of any security interest under, any contractual
obligation of such Purchaser, or any legal requirement or
order applicable to such Purchaser, and (iv) do not violate
any judgment, injunction, award, decree or order of any nature
or agreement against, or binding upon, such Purchaser. Such
Purchaser is not party to, or bound by, any agreement that is
currently in effect, granting rights to any third party which
are inconsistent with the rights to be granted by such
Purchaser in this Agreement.
4a.1.3 Except for any mandatory statutory law measures (e.g., without
limitations, antitrust approval (see Section 3.2.1) or filings
in accordance with the German Securities Trading Act (WPHG)),
no approval, compliance, exemption, authorization, or other
action by, or notice to, or filing with, any Regulatory
Authority or any other third party, and no lapse of a waiting
period under any legal requirement, order or contractual
obligation is necessary or required in connection with the
execution, delivery or performance, by or enforcement against
such Purchaser of this Agreement or the transactions of such
Purchaser contemplated hereby.
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4a.1.4 This Agreement has been duly executed and delivered by such
Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
relating to or affecting the rights of creditors.
4a.1.5 There are no actions, suits, proceedings, claims, arbitrations
or investigations pending or, to the knowledge of such
Purchaser, threatened, against such Purchaser purporting to
enjoin or restrain the execution, delivery or performance by
such Purchaser of this Agreement.
4a.1.6 This Agreement does not contain any untrue statements of a
material fact by the Purchasers.
4a.2 Except for the Purchasers' Guarantees as set forth in Section 4a.1,
Purchasers do not give any additional guarantees in respect to this
Agreement.
SECTION 5
REMEDIES FOR PURCHASERS
5.1 In the event of any breach or non-fulfillment by Selling Stockholders
of any of the Selling Stockholders' Guarantees listed in Section 4.1,
Selling Stockholders shall be liable for putting Purchasers into the
same position that they would have been in if the Selling Stockholders'
Guarantees had been correct or had not been breached
(NATURALRESTITUTION), or, at the election of Purchasers, by payment of
the amount necessary to restore the damage suffered by the respective
Purchaser to the warranted position (SCHADENSERSATZ).
5.2 All claims of Purchasers arising under this Agreement shall be
time-barred on the second anniversary of Closing, except for all claims
of Purchasers in respect of liabilities for defects of title arising
from a breach in respect of Section 4.1.1 through 4.1.4 and 4.1.6 which
shall be time barred on the seventh anniversary of Closing.
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5.3 Purchasers have the right to claim damages because of breach of Selling
Stockholders' Guarantees only, if the aggregate amount of all claims
exceeds EUR 500,000.00 but then for the full amount of such claims
(FREIGRENZE). The aggregate liability of the Selling Stockholders under
Section 5.1 is in any event limited to 50 % of the respective
Individual Purchase Price, provided that any claims of Purchasers
arising from a breach of the Selling Stockholders' Guarantees contained
in Sections 4.1.3 and 4.1.4 shall be limited to the respective
Individual Purchase Price.
5.4 The Parties are in agreement that the remedies that Purchasers may have
against Selling Stockholders for breach of obligations set forth in
this Agreement are solely governed by this Agreement, and the remedies
provided for by this Agreement shall be the exclusive remedies
available to Purchasers. The Parties are further in agreement that
under no circumstances shall Selling Stockholders' Guarantees be
construed as representations of Selling Stockholders with respect to
the quality of the Purchased Shares within the meaning of Section 443
German Civil Code (GARANTIE FUR DIE BESCHAFFENHEIT DER SACHE) and
therefore, Purchasers explicitly waive the application of Section 444
German Civil Code.
SECTION 5A
REMEDIES FOR SELLING STOCKHOLDERS
5a.1 In the event of any breach or non-fulfillment by Purchasers of any of
the Purchasers' Guarantees listed in Section 4a.1 Purchasers shall be
liable for putting Selling Stockholders into the same position that
they would have been in if the Purchasers' Guarantees had been correct
or had not been breached (NATURALRESTITUTION), or, at the election of
Selling Stockholders, by payment of the amount necessary to restore the
damage suffered by the respective Selling Stockholders to the warranted
position (SCHADENSERSATZ).
5a.2 All claims of Selling Stockholders arising under this Agreement shall
be time-barred on the second anniversary of Closing.
5a.3 Selling Stockholders have the right to claim damages because of breach
of Purchasers' Guarantees only, if the aggregate amount of all claims
exceeds EUR 500,000.00, but then for the full amount of such claims
(FREIGRENZE).
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The aggregate liability of the Purchasers under Section 5a.1 is in any
event limited to EUR 1,000,000.00. Selling Stockholders shall have no
right to claim damages because of breach of Purchasers' Guarantees if
and as long as the respective Individual Purchase Price has been paid
to the respective Selling Stockholder and the Selling Stockholder has
not repaid the Individual Purchase Price to Purchasers.
5a.4 The Parties are in agreement that the remedies that Selling
Stockholders may have against Purchasers for breach of obligations set
forth in this Agreement are solely governed by this Agreement, and the
remedies provided for by this Agreement shall be the exclusive remedies
available to Selling Stockholders.
SECTION 6
NON-COMPETE
6.1 Xx. Xxxxxxxx Xxxxxx agrees that he will not for a period of two years
after Signing directly or indirectly compete with the Company or its
subsidiaries. For purposes of this Section 6.1 "compete" means to
undertake, to be engaged (whether as an employee, director or advisor)
in, or to hold an interest or a profit participation in (other than
through the Company), the software business for archiving
(ARCHIVIERUNG) or document management (DOKUMENTENMANAGEMENT) within
Germany or any other jurisdiction the Company itself or through its
subsidiaries is currently active.
6.2 The restrictions contained in Section 6.1 do not affect or prohibit the
right to acquire or hold shares of any class, for passive investment
purposes only, amounting to less than five percent of the capital of a
competing company. In addition, the restrictions contained in Section
6.1 do not apply to CoWare AG, Munchen, and Gauss Interprise AG,
Hamburg.
6.3 Xx. Xxxxxxxx Xxxxxx agrees that he will not for a period of two years
after Signing directly or indirectly solicit or actively seek to entice
away any employee of the Company or its subsidiaries.
6.4 For each case of violation of the stipulations set forth in Sections
6.1 and Section 6.3, notwithstanding whether committed intentionally or
negligently,
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the violating Party shall pay a contractual penalty in the amount of
EUR 100,000.00 to Purchasers. This Section 6.4 does, however, not
preclude Purchasers to claim actual damages.
SECTION 7
TRANSFER OF REMAINING SHARES
7.1 If a Selling Stockholder (a "TRANSFERRING STOCKHOLDER") wishes to sell
any of the Remaining Shares in whole or in part, then such Transferring
Stockholder must give written notice (the "TRANSFER NOTICE") to
Purchasers of his intention, the number of Remaining Shares proposed to
be sold (the "OFFERED SHARES") and the proposed purchase price (the
"OFFER PRICE"). For purposes of receiving Transfer Notices, GAP LP
shall act as a representative (EMPFANGSBEVOLLMACHTIGTER) for all
Purchasers, i.e. the Transferring Stockholders shall only give Transfer
Notice to GAP LP. On receipt of the Transfer Notice, Purchasers shall
have the right to elect to buy all or some of the Offered Shares and to
accept the offer made by the Transferring Stockholder at the Offer
Price specified in the Transfer Notice by giving written notice to the
Transferring Stockholder as soon as possible but in any event not later
than fourteen (14) calendar days of receiving the Transfer Notice
indicating the number of Offered Shares to be purchased and how such
Offered Shares shall be allocated among GAP LP, GAP Coinvestment,
GapStar and GAPCO KG (the "ACCEPTANCE NOTICE"). For purposes of giving
the Acceptance Notice, GAP LP shall act as a representative for
Purchasers, i.e. GAP LP shall give the notice as set forth in the
preceding sentence on behalf of all Purchasers. With the acceptance of
the offer the Transferring Stockholder and Purchasers enter into the
share purchase agreement regarding such Offered Shares pursuant to
which the Transferring Stockholder will guarantee that he owns
beneficially the Offered Shares being sold to the Purchasers and has
good and valid title to such Offered Shares which are free and clear of
any third party rights, and are not pledged, assigned, charged or used
as a security. Purchasers may assign its rights under this Section 7.1
to any of its affiliated investment partnerships.
7.2 If Purchasers do not wish to purchase the Offered Shares pursuant to
Section 7.1, they shall inform the Transferring Stockholder about this
decision as soon as possible, but not later than fourteen (14) calendar
days of receiving Transfer
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Notice (the "NON-ACCEPTANCE NOTICE"). Without undue delay, but not
later than fourteen (14) calendar days after receipt of the
Non-Acceptance Notice, Purchasers shall inform the Transferring
Stockholder as to the method of disposition of the Offered Shares, e.g.
by sale in a block trade, conducting of a road-show, etc. For a period
of six (6) weeks after receipt of the Non-Acceptance Notice (the "SALES
PERIOD"), (i) the Transferring Stockholder may sell the Offered Shares
at a price equal to or higher than the Offer Price in a block trade
(i.e. not through the stock exchange) and (ii) Purchasers and the
Transferring Stockholder shall consult with each other in an effort to
achieve an orderly disposition of the Offered Shares.
7.3 If the Offered Shares are not sold during the Sales Period, then after
the lapse of the Sales Period and provided that the Transferring
Stockholder has acted in accordance with Sections 7.1 and 7.2, the
Transferring Stockholder shall be free to sell the Offered Shares (i)
at a price equal to or higher than the Offer Price or (ii) at another
price (the "NEW PRICE") if the Transferring Stockholder has offered in
writing the Offered Shares for sale to Purchasers at the New Price (the
"NEW TRANSFER NOTICE") and Purchasers have not given notice to buy the
Offered Shares at the New Price within seven (7) calendar days of
receiving the New Transfer Notice or (iii), if the New Price is not
exceeding market price at the close of business (SCHLU(BETA)KURS) at
the date of the New Transfer Notice, at this market price; Section 7.1
sHall apply MUTATIS MUTANDIS.
7.4 For each case of violation of the stipulations set forth in Sections
7.1 and 7.2, notwithstanding whether committed intentionally,
negligently or without negligence, the violating Selling Stockholder
shall pay to Purchasers a contractual penalty in the amount of 10 % of
the proceeds from the sale of the Offered Shares. This Section 7.4
does, however, not preclude Purchasers to claim actual damages.
7.5 The restrictions set forth in this Section 7 shall not apply to the
transfer of Remaining Shares to a GmbH (GESELLSCHAFT MIT BESCHRANKTER
HAFTUNG) or AG (AKTIENGESELLSCHAFT) incorporated under German law (the
"HOLDING COMPANY") if (i) the Holding Company is wholly owned by the
Selling Stockholders, their respective spouses or their direct
descendants and (ii) if the Holding Company has acceded to this
Agreement. If the Holding Company ceases to be wholly owned by the
Selling Stockholders or their direct descendants, the Holding Company
shall retransfer the respective Remaining
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Shares to such Selling Stockholder that initially transferred the
Remaining Shares to the Holding Company.
7.6 The provision of this Section 7 shall terminate twelve (12) months
after Closing.
SECTION 7A
PRESS RELEASES
7a.1 Neither Party shall, without the prior written consent of the other
Parties, disclose the contents of this Agreement to third parties or
make any information relating thereto available to third parties. This
shall not, however, apply to the extent a Party or any affiliate of a
Party may be obliged to make any announcement or disclosure under
applicable laws or regulations (including, but not limited to the rules
of relevant stock exchanges). In addition after the first public
announcement regarding this Agreement, Purchasers may disclose this
Agreement and the transactions contemplated hereby to their investors
in order to satisfy their periodic reporting obligations and internally
consistent with past practice. For clarification purposes, this
provision shall not apply to disclosures on a no-name basis.
7a.2 Except for disclosures or statements required under applicable laws or
regulations, any press releases or public statements by one Party in
connection with this Agreement shall be mutually agreed upon between
the Parties prior to the release hereof.
SECTION 7B
RESCISSION RIGHTS (RUCKTRITTSRECHTE)
7b.1 If the Other Stockholders rescind or contest the validity (ANFECHTEN)
of the Other Agreement with Purchasers, for reasons whatsoever,
Purchasers shall have the right to rescind (ZURUCKTRETEN) this
Agreement without any liability to the Selling Stockholders within 10
Banking Days following receipt of the notice by the Other Stockholders
that the Other Stockholders rescind or contest the validity of the
Other Agreement.
18/23
7b.2 Each Party shall have the right to rescind (ZURUCKTRETEN) this
Agreement without any liability to any of the Parties if (i) antitrust
clearance (see Sections 3.2.2 and 3.2.3 above) has not been obtained on
or prior to five (5) Banking Days after expiration of the 4-month
period set forth in Section 3.2.2 (iii) or (ii) the Company has not
filed for the registration of the consummation of the Capital Increase
in the commercial register as contemplated in the Participation
Agreement on or prior to ten (10) Banking Days after expiration of the
4-month period set forth in Section 3.2.2 (iii).
7b.3 The Selling Stockholders shall have the right to rescind (ZURUCKTRETEN)
this Agreement without any liability to any of the Parties if
Purchasers have not paid the respective Individual Purchase Price in
accordance with Sections 2.2 and 2.3 within ten (10) Banking Days after
Closing.
SECTION 7C
ADDITIONAL CONDITIONS PRECEDENT
7c.1 The entire Agreement shall be subject to the condition precedent
(AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the
Participation Agreement with the Company on or prior to August 19,
2002. For clarification purposes, if the condition precedent set forth
in this Section 7c.1 has not been fulfilled, this Agreement has never
become effective (WIRKSAM).
7c.2 The entire Agreement shall also be subject to the condition precedent
(AUFSCHIEBENDE BEDINGUNG) that the Purchasers have entered into the
Other Agreement with the Other Stockholders on or prior to August 19,
2002. For clarification purposes, if the condition precedent set forth
in this Section 7c.2 has not been fulfilled, this Agreement has never
become effective (WIRKSAM).
SECTION 8
MISCELLANEOUS
8.1 All expenses, costs, fees and charges in connection with the
transactions contemplated under this Agreement including, without
limitations, legal
19/23
services, shall be borne by the Party commissioning the respective
costs, fees and charges.
8.2 In this Agreement the headings are inserted for convenience only and
shall not affect the interpretation of this Agreement; where a German
term has been inserted in italics it alone (and not the English term to
which it relates) shall be authoritative for the purpose of the
interpretation of the relevant English term in this Agreement. All
Annexes to this Agreement constitute an integral part of this
Agreement.
8.3 "BANKING DAYS" shall mean days banks are open for business in
Frankfurt/Main.
8.4 The Selling Stockholders shall not be jointly and severally liable
under this Agreement, i.e. they shall only be responsible for their
respective obligations and liabilities incurred under this Agreement
(TEILSCHULDNER).
8.5 Amendments to this Agreement, including this provision, must be made in
writing (including telecopy) by the Parties or in any other legally
required form, if so required.
8.6 The Selling Stockholders shall not be entitled to assign any rights or
claims under this Agreement without the written consent of Purchasers.
8.7 All notices and other communications hereunder shall - unless expressly
provided otherwise - be made in writing and shall be delivered or sent
by registered mail or courier to the addresses below or to such other
addresses which may be specified by any Party to the other Party in the
future in writing:
for Purchasers:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXX
Attn: Xxxxxxx Xxxxxx
Telecopy: x00-000-000-0000
20/23
with copy to:
Freshfields Bruckhaus Xxxxxxxx
Xxxxxxxxxxxxxx 00
00000 Xxxxxxx
Xxxxxxx
Attn: Dr. Xxxxx Xxxxxxxx
Telecopy: x00-00-00000-000
for Xxxxxxxx Xxxxxx
Xxxxxxxxx(xxxx)x 00
00000 Xxxxxxx
with copy to:
Xxxxxx, Xxxxxxxxxxx & Partner
Xxxxxxxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
Attn: Xx. Xxxxx X. Xxxxxx
Telecopy: x00-00-00000-000
for Xxxxx Xxxxxx
Xxxxxxxxxx(xxxx)x 0x
00000 Xxxxxxx
with copy to:
Xxxxxx, Schonberger & Partner
Xxxxxxxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
Attn: Xx. Xxxxx X. Xxxxxx
Telecopy: x00-00-00000-000
8.8 Should any provision of this Agreement be held wholly or in part
invalid or unenforceable, the validity or enforceability of the other
parts shall not be affected thereby. In place of the invalid or
unenforceable provision the Parties shall agree on an appropriate valid
and enforceable provision which serves best the economic interest of
the contract Parties originally pursued by the invalid or unenforceable
provision.
21/23
8.9 This Agreement shall be governed by and construed in accordance with
the laws of Germany. The exclusive jurisdiction for legal actions from
or in connection with this Agreement is Munich, Germany (Regional Court
Munich I).
August 12 2002 August 12 2002
------------, ------------ ------------, ------------
General Atlantic Partners (Bermuda), L.P.: GAP Coinvestment Partners II, L.P.:
By: GAP (Bermuda) Limited
its general partner
By: /s/ Xxxxx Hemkelmann By: /s/ Xxxxx Hemkelmann
----------------------------- ----------------------------
Name: Xxxxx Hemkelmann Name: Xxxxx Hemkelmann
--------------------------- --------------------------
August 12 2002 August 12 2002
------------, ------------ ------------, ------------
GapStar, LLC GAPCO GmbH & Co. KG:
By: General Atlantic Partners, LLC, By: GAPCO Management GmbH,
its managing member its general partner
By: /s/ Xxxxx Hemkelmann By: /s/ Xxxxx Hemkelmann
----------------------------- ----------------------------
Name: Xxxxx Hemkelmann Name: Xxxxx Hemkelmann
--------------------------- --------------------------
August 12 2002 August 12 2002
------------, ------------ ------------, ------------
Xxxxxxxx Xxxxxx Xxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxxx Xxxxxx Name: Xxxxx Xxxxxx
--------------------------- --------------------------
22/23
ANNEX I
REMAINING SHARES
----------------
--------------------------------------------------------------------------------
SELLING STOCKHOLDERS REMAINING SHARES
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 569,050
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 376,500
--------------------------------------------------------------------------------
23/23
ANNEX II
----------------------------------------------------------------------------------------------------------------------------
SELLING STOCKHOLDERS PURCHASED PURCHASE PRICE FOR PURCHASED PURCHASE PRICE FOR PURCHASED SHARES
SHARES SOLD TO PURCHASED SHARES SHARES SOLD TO PURCHASED SHARES SOLD TO GAPSTAR
GAP LP SOLD TO GAP LP GAP SOLD TO GAP
COINVESTMENT COINVESTMENT
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 868,374 EUR 5,644,431 65,338 EUR 424,697 64,888
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 694,700 EUR 4,515,550 52,270 EUR 339,755 51,910
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
TOTAL 1,563,074 EUR 10,159,981 117,608 EUR 764,452 116,798
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
SELLING STOCKHOLDERS PURCHASE PRICE FOR PURCHASED SHARES PURCHASE PRICE FOR
PURCHASED SHARES SOLD TO GAP CO KG PURCHASED SHARES
SOLD TO GAPSTAR SOLD TO GAPCO
KG
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx EUR 421,772 1,400 EUR 9,100
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Xxxxx Xxxxxx EUR 337,415 1,120 EUR 7,280
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
========================================================================================
TOTAL EUR 759,187 2,520 EUR 16,380
----------------------------------------------------------------------------------------
