<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Amendment No. 1
iXOS Software Aktiengesellschaft
- -------------------------------------------------------------------------------
(Name of Issuer)
Bearer Ordinary Shares
- -------------------------------------------------------------------------------
(Title of Class of Securities)
46600V108
--------------------------------------------
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 14, 1999
- -------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box: [ ]
Page 1 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
Goldman, Sachs & Co.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF-WC-OO
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[X]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
New York
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
506,645
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
506,645
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
506,645
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
13.3%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
BD-PN-IA
- ------------------------------------------------------------------------------
Page 2 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
The Goldman Sachs Group, Inc.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF-OO
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
506,645
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
506,645
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
506,645
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
13.3%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
HC-CO
- ------------------------------------------------------------------------------
Page 3 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
GS Capital Partners II, L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
WC
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
265,825
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
265,825
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
265,825
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
7.0%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 4 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
GS Advisors, L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
265,825
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
265,825
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
265,825
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
7.0%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 5 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
GS Capital Partners II Offshore, L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
WC
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Cayman Islands
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
105,677
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
105,677
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
105,677
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
2.8%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 6 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
GS Advisors II (Cayman), L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Cayman Islands
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
105,677
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
105,677
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
105,677
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
2.8%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 7 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
GS Capital Partners II (Germany) Civil Law Partnership
(with limitation of liability)
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
WC
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Germany
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
9,805
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
9,805
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
9,805
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
0.3%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 8 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
Goldman, Sachs & Co. oHG
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Germany
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
9,805
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
9,805
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
9,805
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
0.3%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 9 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
Stone Street Fund 1997, L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
WC
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
28,520
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
28,520
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
28,520
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
0.7%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 10 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
Bridge Street Fund 1997, L.P.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
WC
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
13,847
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
13,847
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
13,847
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
0.4%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ------------------------------------------------------------------------------
Page 11 of 44 pages
<PAGE>
- -----------------------
CUSIP No. 46600V108
- -----------------------
- ------------------------------------------------------------------------------
1. Name of Reporting Person
I.R.S. Identification No. of above Person
Stone Street Asset Corp.
- ------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [_]
- ------------------------------------------------------------------------------
3. SEC Use Only
- ------------------------------------------------------------------------------
4. Source of Funds
AF
- ------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
[ ]
- ------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Delaware
- ------------------------------------------------------------------------------
7. Sole Voting Power
Number of 0
Shares ----------------------------------------------------------
8. Shared Voting Power
Beneficially
42,367
Owned by
----------------------------------------------------------
Each 9. Sole Dispositive Power
Reporting 0
Person ----------------------------------------------------------
10. Shared Dispositive Power
With:
42,367
- ------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
42,367
- ------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[_]
- ------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
1.1%
- ------------------------------------------------------------------------------
14. Type of Reporting Person
CO
- ------------------------------------------------------------------------------
Page 12 of 44 pages
<PAGE>
AMENDMENT NO. 1 TO
SCHEDULE 13D
RELATING TO THE BEARER ORDINARY SHARES OF
IXOS SOFTWARE AKTIENGESELLSCHAFT
GS Capital Partners II, L.P. ("GS Capital II"), GS Capital Partners II
Offshore, L.P. ("GS Offshore"), GS Capital Partners II (Germany) Civil Law
Partnership ("GS Germany"), Stone Street Fund 1997, L.P. ("1997 Stone") and
Bridge Street Fund 1997, L.P. ("1997 Bridge" and together with GS Capital II, GS
Offshore, GS Germany and 1997 Stone, the "Limited Partnerships"), Stone Street
Asset Corp. ("Stone Asset"), Goldman, Sachs & Co. ("Goldman Sachs"), GS
Advisors, L.P. ("GS Advisors"), GS Advisors II (Cayman), L.P. ("GS Advisors
Cayman"), Goldman, Sachs & Co. oHG ("GS oHG") and The Goldman Sachs Group, Inc.
("GS Group" and, together with Goldman Sachs, GS Advisors, GS Advisors Cayman,
GS oHG, Stone Asset and the Limited Partnerships, the "Filing Persons")/(1)
hereby amend this statement on Schedule 13D filed November 12, 1998, with
respect to the Bearer Ordinary Shares, no par value (the "Bearer Ordinary
Shares") and the American Depositary Shares, each representing one-fifth of one
Bearer Ordinary Share (the "ADSs", and together with the Bearer Ordinary Shares,
the "Shares"), of iXOS Software Aktiengesellschaft, a German stock corporation
(the "Company"). Goldman Sachs and GS Group may be deemed, for purposes of this
Statement, to beneficially own Bearer Ordinary Shares through the Limited
Partnerships. Goldman Sachs and GS Group each disclaims beneficial ownership of
Bearer Ordinary Shares beneficially owned by the Limited Partnerships to the
extent of partnership interests in the Limited Partnerships held by persons
other than Goldman Sachs, GS Group or their affiliates. In addition, Goldman
Sachs and GS Group may be deemed to beneficially own Shares held in client
accounts with respect to which Goldman Sachs or employees of Goldman Sachs have
voting or investment discretion, or both ("Managed Accounts"). Goldman Sachs and
GS Group disclaim beneficial ownership of Shares held in Managed Accounts.
Goldman Sachs and GS Group may also be deemed to beneficially own from time to
time Shares acquired in ordinary course trading activities by Goldman Sachs.
Unless otherwise indicated, all capitalized terms used but not defined herein
shall have the same meaning ascribed to them in the Schedule 13D.
This Amendment No. 1 is being filed to report a decrease in the percentage
of the outstanding Bearer Ordinary Shares which may be deemed to be beneficially
owned by the Filing Persons, which decrease was as a result of the sale of
Bearer Ordinary Shares by the Limited Partnerships pursuant to their
participation in the Offering (as defined in Item 4).
- ------------------
/1/ Neither the present filing nor anything contained herein shall be
construed as an admission that any Filing Person constitutes a "person" for any
purposes other than Section 13(d) of the Securities Exchange Act of 1934.
Page 13 of 44 pages
<PAGE>
Item 2 is hereby amended and restated as follows:
Item 2. Identity and Background.
------------------------
As of May 24, 1999, Goldman Sachs and GS Group may be deemed to
beneficially own, through the Limited Partnerships, 423,674 Shares in the form
of Bearer Ordinary Shares. In addition, as of May 24, 1999, Goldman Sachs and GS
Group may be deemed to beneficially own 1,801 Shares, 213 of which are in the
form of 1,063 ADSs, as a result of ordinary course trading activities. In
addition, as of May 24, 1999, Goldman Sachs and GS Group may be deemed to
beneficially own 81,170 Shares, 26,420 of which are in the form of 132,100 ADSs,
held in Managed Accounts.
Each of GS Capital II, a Delaware limited partnership, GS Offshore, a
Cayman Islands exempted limited partnership, and GS Germany, a German civil law
partnership, was formed for the purpose of investing in equity and
equity-related securities primarily acquired or issued in leveraged
acquisitions, reorganizations and other private equity transactions. GS
Advisors, a Delaware limited partnership, is the sole general partner of GS
Capital II. GS Advisors Cayman, a Cayman Islands exempted limited partnership,
is the sole general partner of GS Offshore. GS oHG is the sole managing partner
of GS Germany. 1997 Stone and 1997 Bridge, each a Delaware limited partnership,
were formed for the purpose of investing in equity and equity-related securities
primarily acquired or issued in leveraged acquisitions, reorganizations and
other private equity transactions and in other financial instruments. Stone
Asset, a Delaware corporation, is the sole general partner of 1997 Stone and the
sole managing general partner of 1997 Bridge. Goldman Sachs, a New York limited
partnership, is an investment banking firm and a member of the New York Stock
Exchange, Inc. and other national exchanges. Goldman Sachs also serves as the
investment manager for GS Capital II, GS Offshore and GS Germany. GS Group, one
of the general partners of Goldman Sachs, owns a 99% interest in Goldman Sachs.
GS Group is a Delaware corporation and a holding company that (directly or
indirectly through subsidiaries or affiliated companies or both) is a leading
investment banking organization and is a successor in interest to The Goldman
Sachs Group, L.P., which was merged with and into GS Group on May 7, 1999. The
other general partner of Goldman Sachs is The Goldman, Sachs & Co. L.L.C., a
Delaware limited liability company ("GS L.L.C."), which is a wholly owned
subsidiary of GS Group. The principal business address of each Filing Person
(other than GS Offshore, GS Advisors Cayman, GS Germany and GS oHG), and GS
L.L.C. is 85 Broad Street, New York, NY 10004. The principal business address
for each of GS Offshore and GS Advisors Cayman is c/o Maples and Calder, P.O.
Box 309, Grand Cayman, Cayman Islands. The principal business address for each
of GS Germany and GS oHG is MesseTurm, 60308 Frankfurt am Main, Germany.
The name, business address and present principal occupation or employment
of each director of GS Group are set forth in the amended Schedule I hereto, to
read in its entirety as attached hereto, and are incorporated herein by
reference. The name, business address, present principal occupation or
employment and citizenship of each director and executive officer of GS
Advisors, Inc. and GS Advisors II, Inc., each a Delaware corporation and the
sole general partner of GS Advisors, L.P. and GS Advisors II (Cayman), L.P.,
respectively, are set forth in the amended Schedules II-A-i and II-A-ii hereto,
respectively, to read in their entirety as attached hereto, and are incorporated
herein by reference. The name, business address, present principal occupation or
employment and citizenship of each director and executive officer of Stone
Street Asset Corp., the sole general partner of Stone Street Fund 1997, L.P. and
the managing general partner of Bridge Street Fund 1997, L.P., are set forth in
the amended Schedule II-B hereto, to read in its entirety as attached hereto,
and are incorporated herein by reference. The name, business address, present
principal occupation or employment and citizenship of each executive officer and
director of Goldman, Sachs & Co. Finanz GmbH, which is the sole managing general
partner of Goldman, Sachs & Co. oHG, are set forth in the amended Schedule II-C
hereto, to read in its entirety as attached hereto, and are incorporated herein
by reference.
Page 14 of 44 pages
<PAGE>
During the last five years, none of the Filing Persons, or, to the
knowledge of each of the Filing Persons, any of the persons listed on Schedules
I, II-A-i, II-A-ii, II-B or II-C hereto, (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) except
as set forth in Schedule III to this Schedule 13D, has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws, or finding any violation with
respect to such laws.
Item 3 is hereby amended as follows:
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
Except with respect to transactions effected by Goldman Sachs and GS oHG
in their capacity as underwriters in the Offering (as defined below), Schedules
IV-A and IV-B set forth the transactions in the ADSs and Bearer Ordinary Shares,
respectively, which have been effected during the period from March 15, 1999
through May 24, 1999. Except for the sale of Shares by the Limited Partnerships
pursuant to the Offering, all of the transactions set forth on Schedules IV-A
and IV-B were effected in the ordinary course of business of Goldman Sachs or
another Goldman Sachs operating entity. The transactions in the ADSs and Bearer
Ordinary Shares, described in Schedules IV-A and IV-B, respectively, were
effected on the NASDAQ National Market and on the Neuer Markt trading segment of
the Frankfurt Stock Exchange. The aggregate consideration (exclusive of
commissions) for the ADSs and Bearer Ordinary Shares purchased during the period
from March 15, 1999 through May 24, 1999 was $8,951,639.35 and EUR37,871,068.75,
respectively.
Item 4 is hereby amended as follows:
Item 4. Purpose of the Transaction.
---------------------------
In connection with the offering of Shares by certain selling shareholders
(the "Offering"), which was consummated on May 14, 1999, pursuant to a Global
Underwriting Agreement (the "Underwriting Agreement"), dated May 11, 1999, GS
Capital II, GS Offshore, GS Germany, 1997 Stone and 1997 Bridge, on May 11,
1999, sold to the underwriters named therein 108,337, 43,068, 3,996, 11,623 and
5,644 Shares, respectively, of which 87,338, 34,720, 3,222, 9,370 and 4,550,
respectively, were in the form of 139,200 Bearer Ordinary Shares at a net price
of EUR172.02 per share, and 104,995, 41,740, 3,870, 11,265 and 5,470,
respectively, in the form of 167,340 ADSs at a net price of $37.85 per share.
Goldman Sachs and GS oHG were two of several underwriters under the Underwriting
Agreement. Additionally, GS oHG was the Global Coordinator of the Offering.
The Shares beneficially owned, or which may be deemed to be beneficially
owned, by Goldman Sachs, other than the Shares which may be deemed to be
beneficially owned through the Limited Partnerships, were acquired in the
ordinary course of business of Goldman Sachs.
The foregoing summary of the Underwriting Agreement is qualified in its
its entirety by the Underwriting Agreement, which is filed as an exhibit hereto
and incorporated by reference into this Item 4.
In connection with the Offering, each of the Limited Partnerships entered
into a Custody Agreement and Power of Attorney, dated May 11, 1999
(collectively, the "Custody Agreement"), with iXOS Software, as Custodian (the
"Custodian"), pursuant to which the Custodian was given custody of the Bearer
Ordinary Shares owned by the Limited Partnerships and the Attorneys-in-Fact
appointed thereunder were authorized and instructed to effect certain transfers
of and transactions relating to such shares and in order to facilitate the
Offering.
Page 15 of 44 pages
<PAGE>
The foregoing description of the Custody Agreement is subject to, and
qualified in its entirety by reference to, the form of Custody Agreement, which
is filed as an exhibit hereto and incorporated by reference into this Item 4.
Except as disclosed herein, none of the Filing Persons or, to the knowledge
of the Filing Persons, any of the persons listed on amended Schedules I, II-A-i,
II-A-ii, II-B or II-C hereto has any present plans or intentions which would
result in or relate to any of the transactions described in subparagraphs (a)
through (j) of Item 4 of Schedule 13D. In connection with the Offering, the
Limited Partnerships agreed not to sell or otherwise dispose of any Bearer
Ordinary Shares or ADSs (or securities substantially similar to, convertible
into, or exchangeable for, Bearer Ordinary Shares or ADSs) during the period
beginning on the date of and continuing to and including the date ninety days
after the pricing of the Offering on May 11, 1999 (the "Lock-up").
The foregoing description of the Lock-up is subject to, and qualified in
its entirety by reference to, the form of Lock-up Agreement, which is filed as
an exhibit hereto and incorporated by reference into this Item 4.
Each of the Filing Persons expects to evaluate on an ongoing basis the
Company's financial condition, business, operations and prospects, the market
price of the Common Stock, conditions in the securities markets generally,
general economic and industry conditions and other factors. Accordingly, each
Filing Person reserves the right to change its plans and intentions at any time,
as it deems appropriate. In particular, the Filing Persons may purchase
additional Shares or may sell Shares from time to time in public or private
transactions and/or may enter into privately negotiated derivative transactions
with institutional counterparties to hedge the market risk of some or all of its
positions in the Shares or other securities. Any such transactions may be
effected at anytime or from time to time (subject to any applicable limitations
imposed on the sale of any of their Shares by the Securities Act of 1933, as
amended (the "Securities Act"), and, in the case of sales by the Limited
Partnerships, subject to the other restrictions described in the Lock-up. To the
knowledge of each Filing Person, each of the persons listed on amended Schedules
I, II-A-i, II-A-ii, II-B or II-C hereto may make the same evaluation.
Item 5 is hereby amended as follows:
Item 5. Interest in Securities of the Issuer.
-------------------------------------
(a) As of May 24, 1999, GS Capital II beneficially owned, and GS Advisors
may be deemed to have beneficially owned, an aggregate of 265,825 Bearer
Ordinary Shares, representing in the aggregate approximately 7.0% of the Shares
reported to be outstanding as of March 31, 1999 as disclosed in the prospectus,
dated May 11, 1999, relating to the Offering (the "Prospectus").
As of May 24, 1999, GS Offshore beneficially owned, and GS Advisors Cayman
may be deemed to have beneficially owned, an aggregate of 105,677 Bearer
Ordinary Shares, representing in the aggregate approximately 2.8% of the Shares
reported to be outstanding in the Prospectus.
As of May 24, 1999, GS Germany beneficially owned, and GS oHG may be deemed
to have beneficially owned, an aggregate of 9,805 Bearer Ordinary Shares,
representing in the aggregate approximately 0.3% of the Shares reported to be
outstanding in the Prospectus.
As of May 24, 1999, 1997 Stone beneficially owned an aggregate of 28,520
Bearer Ordinary Shares, representing in the aggregate approximately 0.7% of the
Shares reported to be outstanding in the Prospectus.
As of May 24, 1999, 1997 Bridge beneficially owned an aggregate of 13,847
Bearer Ordinary Shares, representing in the aggregate approximately 0.4% of the
Shares reported to be outstanding in the Prospectus.
Page 16 of 44 pages
<PAGE>
As of May 24, 1999, Stone Asset may be deemed to have beneficially owned an
aggregate of 42,367 Bearer Ordinary Shares, which are owned by 1997 Stone and
1997 Bridge as described above, representing in the aggregate approximately 1.1%
of the Shares reported to be outstanding in the Prospectus.
As of May 24, 1999, each of Goldman Sachs and GS Group may be deemed to
beneficially own an aggregate of 506,645 Shares, including (i) 423,674 Bearer
Ordinary Shares beneficially owned by the Limited Partnerships as described
above, (ii) 1,801 Shares, 213 of which are in the form of 1,063 ADSs, acquired
by Goldman Sachs in ordinary course trading activities, and (iii) 81,170 Shares,
26,420 of which are in the form of 132,100 ADSs, held in Managed Accounts,
representing in the aggregate approximately 13.3% of the Shares reported to be
outstanding in the Prospectus. Goldman Sachs and GS Group disclaim beneficial
ownership of (i) the Bearer Ordinary Shares beneficially owned by the Limited
Partnerships to the extent of partnership interests in the Limited Partnerships
held by persons other than Goldman Sachs, GS Group or their affiliates and (ii)
the Shares held in Managed Accounts.
None of the Filing Persons or, to the knowledge of the Filing Persons, any
of the persons listed on Schedules I, II-A-i, II-A-ii, II-B or II-C hereto,
beneficially owns any Shares other than as set forth herein.
(b) Each Filing Person shares the power to vote or direct the vote and
to dispose or to direct the disposition of Shares beneficially owned by such
Filing Person as indicated in pages 2 through 12 above.
(c) Except with respect to transactions effected by Goldman Sachs and
GS oHG in their capacity as underwriters in the Offering, Schedules IV-A and
IV-B set forth the transactions in the ADSs and Bearer Ordinary Shares,
respectively, which have been effected during the period from March 15, 1999
through May 24, 1999. Except for the sale of Shares by the Limited Partnerships
pursuant to the Offering, all of the transactions set forth on Schedules IV-A
and IV-B were effected in the ordinary course of business of Goldman Sachs or
another Goldman Sachs operating entity. The transactions in the ADSs and Bearer
Ordinary Shares, described in Schedules IV-A and IV-B, respectively, were
effected on the NASDAQ National Market and on the Neuer Markt trading segment of
the Frankfurt Stock Exchange. The aggregate consideration (exclusive of
commissions) for the ADSs and Bearer Ordinary Shares purchased during the period
from March 15, 1999 through May 24, 1999 was $8,951,639.35 and EUR37,871,068.75,
respectively.
Except with respect to transactions effected by Goldman Sachs and GS oHG
in their capacity as underwriters in the Offering, and except as set forth in
Schedules IV-A and IV-B, no transactions in the Shares were effected by the
Filing Persons, or, to the knowledge of any of the Filing Persons, any of the
persons listed on Schedules I, II-A-i, II-A-ii, II-B or II-C hereto, during the
period from March 15, 1999 through May 24, 1999.
Item 6 is hereby amended as follows:
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to the Securities of the Issuer.
--------------------------------------------------------
The Underwriting Agreement, the form of Custody Agreement and Power of
Attorney and the form of Lock-up Agreement are filed as exhibits hereto and
incorporated into this Item 6 by reference.
Except as described in this statement, none of the Filing Persons or, to
the knowledge of the Filing Persons, any of the persons listed on Schedules I,
II-A-i, II-A-ii, II-B or II-C hereto is a party to any contract, arrangement,
understanding or relationship with respect to any securities of the Company.
Page 17 of 44 pages
<PAGE>
Item 7 is hereby amended as follows:
Item 7. Material to be Filed as Exhibits.
---------------------------------
Exhibit No. Exhibit
- ----------- -------
99.1 Underwriting Agreement, by and among the Company, Goldman
Sachs, GS oHG, Deutsche Bank Securities Inc., Deutsche Bank
AG, BT Alex. Brown Inc., BT Alex. Brown Inernational, and
BHF-BANK AG
99.2 Form of Custody Agreement and Power of Attorney
99.3 Form of Lock-Up Agreement
99.4 Power of Attorney, dated December 21, 1998, relating to
Goldman, Sachs & Co.
99.5 Power of Attorney, dated May 7, 1999, relating to The
Goldman Sachs Group, Inc.
99.6 Power of Attorney, dated December 31, 1998, relating to GS
Capital Partners II, L.P.
99.7 Power of Attorney, dated December 28, 1998, relating to GS
Capital Partners II Offshore, L.P.
99.8 Power of Attorney, dated December 21, 1998, relating to GS
Capital Partners II (Germany) Civil Law Partnership.
99.9 Power of Attorney, dated December 28, 1998, relating to GS
Advisors, L.P.
99.10 Power of Attorney, dated December 28, 1998, relating to GS
Advisors II (Cayman), L.P.
99.11 Power of Attorney, dated May 26, 1999, relating to Goldman,
Sachs & Co. oHG
99.12 Power of Attorney, dated December 28, 1998, relating to
Stone Street Fund 1997, L.P.
99.13 Power of Attorney, dated December 28, 1998, relating to
Bridge Street Fund 1997, L.P.
99.14 Power of Attorney, dated December 21, 1998, relating to
Stone Street Asset Corp.
Page 18 of 44 pages
<PAGE>
<TABLE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in
this statement is true, complete and correct.
Date: May 27, 1999
<S> <C>
GOLDMAN, SACHS & CO. THE GOLDMAN SACHS GROUP, INC.
By:/s/ Hans L. Reich By:/s/ Hans L. Reich
- --------------------------------- ---------------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
GS CAPITAL PARTNERS II, L.P. GS ADVISORS, L.P.
By:/s/ Hans L. Reich By:/s/ Hans L. Reich
- --------------------------------- ---------------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
GS CAPITAL PARTNERS II OFFSHORE, L.P. GS ADVISORS II (CAYMAN), L.P.
By:/s/ Hans L. Reich By:/s/ Hans L. Reich
- --------------------------------- ---------------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
GOLDMAN, SACHS & CO. OHG GS CAPITAL PARTNERS II (GERMANY) CIVIL LAW PARTNERSHIP
(with limitation of liability)
By:/s/ Hans L. Reich By:/s/ Hans L. Reich
- --------------------------------- ---------------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
STONE STREET FUND 1997, L.P. BRIDGE STREET FUND 1997, L.P.
By:/s/ Hans L. Reich By:/s/ Hans L. Reich
- --------------------------------- ---------------------------------
Name: Hans L. Reich Name: Hans L. Reich
Title: Attorney-in-fact Title: Attorney-in-fact
STONE STREET ASSET CORP.
By:/s/ Hans L. Reich
- ---------------------------------
Name: Hans L. Reich
Title: Attorney-in-fact
</TABLE>
Page 19 of 44 pages
<PAGE>
SCHEDULE I
----------
<TABLE>
The name of each director of The Goldman Sachs Group, Inc. is set forth below.
The business address of each person listed below except John L. Thornton, Sir John Browne
and James A. Johnson is 85 Broad Street, New York, NY 10004. The business address of John L.
Thornton is 133 Fleet Street, London EC4A 2BB, England. The business address of Sir John Browne
is BP Amoco plc, Brittanic House, 1 Finsbury Circus, London EC2M, England. The business address
of James A. Johnson is Fannie Mae, 3900 Wisconsin Avenue NW, Washington, D.C. 20016. Each person
is a citizen of the United States of America except for Sir John Browne, who is a citizen of the
United Kingdom. The present principal occupation or employment of each of the listed persons is
set forth below.
<CAPTION>
Name Present Principal Occupation
-------------------------------------------------------------------------------------------------
<S> <C>
Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc.
Robert J. Hurst Vice Chairman of The Goldman Sachs Group, Inc.
John A. Thain President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
John L. Thornton President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.
Sir John Browne Group Chief Executive of BP Amoco plc
James A. Johnson Chairman of the Executive Committee of the Board of Fannie Mae
John L. Weinberg Senior Chairman of The Goldman Sachs Group, Inc.
</TABLE>
Page 20 of 44 pages
<PAGE>
SCHEDULE II-A-i
---------------
<TABLE>
The name, position and present principal occupation of each director and executive officer of GS
Advisors, Inc., the sole general partner of GS Advisors, L.P., which is the sole general partner of GS Capital
Partners II, L.P., are set forth below.
The business address for all the executive officers and directors listed below except Henry Cornell and
Barry S. Volpert is 85 Broad Street, New York, New York 10004. The business address of Henry Cornell is 3 Garden
Road, Hong Kong. The business address of Barry S. Volpert is 133 Fleet Street, London EC4A 2BB, England.
All executive officers and directors listed below are United States citizens.
<CAPTION>
Name Position Present Principal Occupation
-----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth S. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman Sachs (Asia) L.L.C.
Barry S. Volpert Director/Vice President Managing Director of Goldman Sachs International
Eve M. Gerriets Vice President/Secretary Vice President of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Katherine B. Enquist Vice President Vice President of Goldman, Sachs & Co.
</TABLE>
Page 21 of 44 pages
<PAGE>
SCHEDULE II-A-ii
----------------
<TABLE>
The name, position and present principal occupation of each director and executive officer of GS
Advisors II, Inc., the sole general partner of GS Advisors II (Cayman), L.P., which is the sole general partner
of GS Capital Partners II Offshore, L.P., are set forth below.
The business address for all the executive officers and directors listed below except Henry Cornell and
Barry S. Volpert is 85 Broad Street, New York, New York 10004. The business address of Henry Cornell is 3 Garden
Road, Hong Kong. The business address of Barry S. Volpert is 133 Fleet Street, London EC4A 2BB, England.
All executive officers and directors listed below are United States citizens.
<CAPTION>
Name Position Present Principal Occupation
-----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth S. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman Sachs (Asia) L.L.C.
Barry S. Volpert Director/Vice President Managing Director of Goldman Sachs International
Eve M. Gerriets Vice President/Secretary Vice President of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Katherine B. Enquist Vice President Vice President of Goldman, Sachs & Co.
</TABLE>
Page 22 of 44 pages
<PAGE>
SCHEDULE II-B
-------------
<TABLE>
The name, position and present principal occupation of each director and executive officer of Stone Street
Asset Corp., the sole general partner of Stone Street Fund 1997, L.P. and the managing general partner of Bridge
Street Fund 1997, L.P., are set forth below.
The business address for each of the executive officers and directors listed below is 85 Broad Street,
New York, New York 10004.
All executive officers and directors listed below are United States citizens.
<CAPTION>
Name Position Present Principal Occupation
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Richard A. Friedman Director/Vice President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Director/Vice President Managing Director of Goldman, Sachs & Co.
Sanjeev K. Mehra Director/Vice President/Treasurer Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Director/Vice President Senior Director of The Goldman Sachs Group, Inc.
Peter M. Sacerdote Director/Chairman/C.E.O./President Advisory Director of Goldman, Sachs & Co.
David J. Greenwald Vice President Managing Director of Goldman, Sachs & Co.
Esta E. Stecher Vice President Managing Director of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Eve M. Gerriets Vice President/Secretary Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President Vice President of Goldman, Sachs & Co.
Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co.
</TABLE>
Page 23 of 44 pages
<PAGE>
SCHEDULE II-C
-------------
<TABLE>
The name, position and present occupation of each executive officer and director of Goldman, Sachs & Co.
Finanz GmbH which is the sole managing general partner of Goldman, Sachs & Co. oHG are set forth below.
The business address for each of the executive officers and directors listed below is MesseTurm, 60308
Frankfurt am Main, Germany. Each of Robert H. Jolliffe and Scott B. Kapnick has an additional business address
of 133 Fleet Street, London EC4A 2BB, England.
Of the directors and executive officers listed below, Scott B. Kapnick is a United States citizen, Robert
H. Jolliffe is a citizen of Great Britain, Paul M. Achleitner and Rudolf W. Ferscha are citizens of Austria,
and Ernst E. Tschoeke and Stefan J. Jentzsch are citizens of Germany.
<CAPTION>
Name Position Present Principal Occupation
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Paul M. Achleitner Managing Director Managing Director of Goldman, Sachs & Co. oHG
Ernst E. Tschoeke Managing Director Executive Director of Goldman, Sachs & Co. oHG
Stefan J. Jentzsch Managing Director Managing Director of Goldman, Sachs & Co. oHG
Robert H. Jolliffe Managing Director Managing Director of Goldman, Sachs & Co. oHG
Scott B. Kapnick Managing Director Managing Director of Goldman, Sachs & Co. oHG
Rudolf W. Ferscha Managing Director Executive Director of Goldman, Sachs & Co. oHG
</TABLE>
Page 24 of 44 pages
<PAGE>
SCHEDULE III
------------
<TABLE>
<S> <C>
In Securities and Exchange Commission Administrative Proceeding File No. 3-8282 In the Matter of
Goldman, Sachs & Co., Goldman, Sachs & Co., (the "Firm"), without admitting or denying any of the SEC's
allegations, settled administrative proceedings involving alleged books and records and supervisory violations
relating to eleven trades of U.S. Treasury securities in the secondary markets in 1985 and 1986. The SEC alleged
that the Firm had failed to maintain certain records required pursuant to Section 17(a) of the Exchange Act and had
also failed to supervise activities relating to the aforementioned trades in violation of Section 15(b)(4)(E) of
the Exchange Act.
The Firm was ordered to cease and desist from committing or causing any violation of the aforementioned
sections of the Exchange Act, pay a civil money penalty to the SEC in the amount of $250,000 and establish
policies and procedures reasonably designed to assure compliance with Section 17(a) of the Exchange Act and Rules
17a-3 and 17a-4 thereunder.
</TABLE>
Page 25 of 44 pages
<PAGE>
<TABLE>
SCHEDULE IV-A
-------------
iXOS Software AG
American Depositary Shares
Cusip No. 46600V108
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,500 39.0210 11-May-99 14-May-99
4,000 39.0210 11-May-99 14-May-99
3,000 38.1250 14-May-99 19-May-99
1,000 38.3750 14-May-99 19-May-99
2,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
5,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
2,000 37.2500 18-May-99 21-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
3,000 39.0210 11-May-99 14-May-99
800 48.3000 17-Mar-99 22-Mar-99
200 48.5000 24-Mar-99 29-Mar-99
200 49.5000 26-Mar-99 31-Mar-99
200 49.2500 26-Mar-99 31-Mar-99
500 48.5000 5-Apr-99 8-Apr-99
600 48.5000 5-Apr-99 8-Apr-99
200 48.5000 5-Apr-99 8-Apr-99
500 48.7000 6-Apr-99 9-Apr-99
500 48.7000 6-Apr-99 9-Apr-99
1,200 49.0000 6-Apr-99 9-Apr-99
3,800 50.2500 7-Apr-99 12-Apr-99
500 50.2500 7-Apr-99 12-Apr-99
3,100 49.6000 9-Apr-99 14-Apr-99
64 49.0000 9-Apr-99 14-Apr-99
101 49.0000 9-Apr-99 14-Apr-99
101 49.0000 9-Apr-99 14-Apr-99
1,500 49.0000 9-Apr-99 14-Apr-99
18 47.5000 13-Apr-99 16-Apr-99
90 47.5000 15-Apr-99 20-Apr-99
355 47.3750 16-Apr-99 21-Apr-99
500 46.1250 19-Apr-99 22-Apr-99
1,000 38.2500 12-May-99 17-May-99
1,000 37.9375 12-May-99 17-May-99
700 38.2500 12-May-99 17-May-99
1,000 38.1875 12-May-99 17-May-99
Page 26 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 37.9375 12-May-99 17-May-99
500 38.5000 12-May-99 17-May-99
1,000 38.2500 12-May-99 17-May-99
3,000 37.5625 12-May-99 17-May-99
500 37.9375 12-May-99 17-May-99
500 38.4400 12-May-99 17-May-99
1,000 38.1875 12-May-99 17-May-99
1,000 37.5625 12-May-99 17-May-99
1,000 38.5000 12-May-99 17-May-99
1,000 37.9375 12-May-99 17-May-99
1,000 38.5000 12-May-99 17-May-99
700 38.0000 12-May-99 17-May-99
500 37.9375 12-May-99 17-May-99
1,000 37.9375 12-May-99 17-May-99
500 38.0000 12-May-99 17-May-99
100 38.1875 12-May-99 17-May-99
500 38.2500 12-May-99 17-May-99
500 38.3150 12-May-99 17-May-99
500 37.9375 12-May-99 17-May-99
1,000 37.5625 12-May-99 17-May-99
200 38.5000 12-May-99 17-May-99
1,000 38.1875 12-May-99 17-May-99
1,000 37.5625 12-May-99 17-May-99
1,000 38.2500 12-May-99 17-May-99
1,000 37.9375 12-May-99 17-May-99
100 38.5000 12-May-99 17-May-99
500 37.5625 12-May-99 17-May-99
1,660 37.5625 12-May-99 17-May-99
1,590 37.9375 12-May-99 17-May-99
3,000 38.1875 12-May-99 17-May-99
500 38.4400 12-May-99 17-May-99
1,000 38.5000 12-May-99 17-May-99
500 38.3150 12-May-99 17-May-99
2,000 37.9375 12-May-99 17-May-99
1,000 38.2500 12-May-99 17-May-99
1,000 38.2500 12-May-99 17-May-99
1,000 37.5625 12-May-99 17-May-99
1,000 37.6250 13-May-99 18-May-99
500 37.6250 13-May-99 18-May-99
500 37.6250 13-May-99 18-May-99
2,000 37.6250 13-May-99 18-May-99
1,000 38.3750 14-May-99 19-May-99
3,000 38.1250 14-May-99 19-May-99
1,000 38.5000 14-May-99 19-May-99
3,000 38.1250 14-May-99 19-May-99
1,000 38.0650 14-May-99 19-May-99
500 38.1250 14-May-99 19-May-99
500 38.1250 14-May-99 19-May-99
2,000 37.0750 17-May-99 20-May-99
1,000 37.2500 17-May-99 20-May-99
Page 27 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
500 37.0000 17-May-99 20-May-99
500 37.6250 17-May-99 20-May-99
2,000 37.0750 17-May-99 20-May-99
500 37.5000 17-May-99 20-May-99
2,500 36.9700 17-May-99 20-May-99
2,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.2500 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 37.0750 17-May-99 20-May-99
100 37.5000 17-May-99 20-May-99
1,000 37.0000 17-May-99 20-May-99
1,000 37.2500 17-May-99 20-May-99
2,000 37.2500 17-May-99 20-May-99
2,000 37.2500 18-May-99 21-May-99
500 36.7500 18-May-99 21-May-99
2,500 37.2500 18-May-99 21-May-99
2,500 37.2500 19-May-99 24-May-99
100 38.2500 19-May-99 24-May-99
317 38.2500 19-May-99 24-May-99
1,000 38.3750 20-May-99 25-May-99
1,000 38.2500 20-May-99 25-May-99
1,000 38.3125 20-May-99 25-May-99
500 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
3,750 39.0210 11-May-99 14-May-99
1,250 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
300 39.0210 11-May-99 14-May-99
300 39.0210 11-May-99 14-May-99
300 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
2,000 37.0750 17-May-99 20-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 37.0750 17-May-99 20-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 37.0750 17-May-99 20-May-99
2,000 39.0210 11-May-99 14-May-99
2,000 37.0750 17-May-99 20-May-99
2,000 39.0210 11-May-99 14-May-99
2,000 37.0750 17-May-99 20-May-99
1,000 39.0210 11-May-99 14-May-99
Page 28 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 37.0750 17-May-99 20-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 37.0750 17-May-99 20-May-99
500 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,500 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
10,000 39.0210 11-May-99 14-May-99
10,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
900 39.0210 11-May-99 14-May-99
1,250 39.0210 11-May-99 14-May-99
1,600 39.0210 11-May-99 14-May-99
1,600 39.0210 11-May-99 14-May-99
1,600 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
1,500 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
Page 29 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
5,000 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
500 39.0210 11-May-99 14-May-99
1,250 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
104,995 37.8500 11-May-99 14-May-99
41,740 37.8500 11-May-99 14-May-99
3,870 37.8500 11-May-99 14-May-99
11,265 37.8500 11-May-99 14-May-99
5,470 37.8500 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
2,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
1,000 39.0210 11-May-99 14-May-99
</TABLE>
Page 30 of 44 pages
<PAGE>
SCHEDULE IV-B
-------------
iXOS Software AG
Bearer Ordinary Shares
<TABLE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
39 222.0000 15-Mar-99 17-Mar-99
40 229.1000 16-Mar-99 18-Mar-99
30 229.5000 16-Mar-99 18-Mar-99
260 229.1000 16-Mar-99 18-Mar-99
100 221.0000 17-Mar-99 19-Mar-99
300 225.0000 17-Mar-99 19-Mar-99
100 221.0000 17-Mar-99 19-Mar-99
529 221.5000 17-Mar-99 19-Mar-99
40 225.0000 25-Mar-99 29-Mar-99
79 226.0000 29-Mar-99 31-Mar-99
200 240.0000 6-Apr-99 8-Apr-99
400 240.0000 6-Apr-99 8-Apr-99
25 239.0000 6-Apr-99 8-Apr-99
200 240.0000 6-Apr-99 8-Apr-99
100 238.0000 6-Apr-99 8-Apr-99
1,453 240.0000 6-Apr-99 8-Apr-99
100 234.0000 6-Apr-99 8-Apr-99
36 240.0000 6-Apr-99 8-Apr-99
100 239.0000 6-Apr-99 8-Apr-99
10 235.0000 6-Apr-99 8-Apr-99
100 239.0000 6-Apr-99 8-Apr-99
100 235.0000 6-Apr-99 8-Apr-99
100 239.0000 6-Apr-99 8-Apr-99
10 240.0000 6-Apr-99 8-Apr-99
65 239.0000 6-Apr-99 8-Apr-99
90 237.5000 7-Apr-99 9-Apr-99
100 239.0000 7-Apr-99 9-Apr-99
130 239.0000 7-Apr-99 9-Apr-99
100 230.0000 8-Apr-99 12-Apr-99
200 235.0000 8-Apr-99 12-Apr-99
200 230.0000 8-Apr-99 12-Apr-99
100 234.0000 8-Apr-99 12-Apr-99
60 232.0000 8-Apr-99 12-Apr-99
620 230.9700 9-Apr-99 13-Apr-99
200 228.2000 13-Apr-99 15-Apr-99
100 228.2000 13-Apr-99 15-Apr-99
100 228.0000 13-Apr-99 15-Apr-99
100 228.0000 13-Apr-99 15-Apr-99
7 227.0000 15-Apr-99 19-Apr-99
100 228.0000 15-Apr-99 19-Apr-99
Page 31 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
50 228.0000 15-Apr-99 19-Apr-99
100 228.0000 15-Apr-99 19-Apr-99
100 226.0000 15-Apr-99 19-Apr-99
100 227.8000 15-Apr-99 19-Apr-99
18 226.5000 16-Apr-99 20-Apr-99
71 225.0000 19-Apr-99 21-Apr-99
100 225.1200 19-Apr-99 21-Apr-99
100 191.3600 28-Apr-99 30-Apr-99
54 199.0000 28-Apr-99 30-Apr-99
54 193.3300 28-Apr-99 30-Apr-99
100 195.0000 28-Apr-99 30-Apr-99
100 195.5800 4-May-99 6-May-99
100 200.0000 4-May-99 6-May-99
70 196.2700 5-May-99 7-May-99
70 197.8000 5-May-99 7-May-99
5 198.0000 6-May-99 10-May-99
270 198.0000 6-May-99 10-May-99
500 199.0000 6-May-99 6-May-99
210 198.0000 6-May-99 10-May-99
200 198.1000 6-May-99 10-May-99
500 199.0000 6-May-99 10-May-99
200 198.0000 6-May-99 10-May-99
5 198.0000 6-May-99 10-May-99
900 198.5000 6-May-99 10-May-99
80 198.0000 6-May-99 10-May-99
1,000 195.0000 7-May-99 11-May-99
500 195.5000 7-May-99 11-May-99
300 198.0000 7-May-99 11-May-99
205 195.5000 7-May-99 11-May-99
300 197.5000 7-May-99 11-May-99
4,100 196.9095 7-May-99 11-May-99
500 196.0000 7-May-99 11-May-99
200 198.0000 7-May-99 11-May-99
25 197.5000 7-May-99 11-May-99
300 197.5000 7-May-99 11-May-99
300 194.0000 7-May-99 11-May-99
500 197.0000 7-May-99 11-May-99
200 197.5000 7-May-99 11-May-99
200 182.0000 10-May-99 12-May-99
10 181.3200 10-May-99 12-May-99
10 180.0000 10-May-99 12-May-99
100 182.0000 10-May-99 12-May-99
700 181.5000 12-May-99 17-May-99
200 181.0000 12-May-99 17-May-99
450 180.6500 12-May-99 17-May-99
250 182.3640 12-May-99 18-May-99
200 182.0000 12-May-99 17-May-99
50 182.0000 12-May-99 17-May-99
30,150 181.9500 12-May-99 17-May-99
2,500 182.0000 12-May-99 17-May-99
Page 32 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 182.0000 12-May-99 17-May-99
100 182.0000 12-May-99 17-May-99
4,000 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
200 181.0000 12-May-99 17-May-99
100 181.5000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
50 180.6500 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
50 183.0000 12-May-99 17-May-99
500 181.5000 12-May-99 17-May-99
500 182.4368 12-May-99 18-May-99
200 181.5000 12-May-99 17-May-99
1,000 180.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
200 180.5000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
300 182.5000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
20 182.0000 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
2,000 182.0000 12-May-99 17-May-99
2,000 182.0000 12-May-99 17-May-99
300 182.4368 12-May-99 18-May-99
200 182.0000 12-May-99 17-May-99
2,000 180.5000 12-May-99 17-May-99
3,100 182.2000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
158 182.0000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
400 180.5000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
700 182.0000 12-May-99 17-May-99
50 182.5000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
150 182.0000 12-May-99 17-May-99
250 182.4000 12-May-99 17-May-99
5,000 182.0000 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 14-May-99 18-May-99
985 181.5000 14-May-99 18-May-99
Page 33 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
4 182.0000 14-May-99 18-May-99
100 182.0000 14-May-99 18-May-99
26 182.0000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
1,000 180.0000 14-May-99 18-May-99
4 182.9000 14-May-99 18-May-99
4,000 182.0000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
5 181.5000 14-May-99 18-May-99
274 182.0000 14-May-99 18-May-99
500 178.0000 14-May-99 18-May-99
1,500 180.0000 14-May-99 18-May-99
10,300 181.6500 14-May-99 14-May-99
10 181.5000 14-May-99 18-May-99
3,238 182.0000 14-May-99 18-May-99
500 181.0000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
1,000 179.0000 17-May-99 19-May-99
500 180.5000 17-May-99 19-May-99
500 180.0000 17-May-99 19-May-99
200 180.0000 17-May-99 19-May-99
400 180.0000 17-May-99 19-May-99
4 180.0000 17-May-99 19-May-99
5 180.0000 17-May-99 19-May-99
500 180.0000 17-May-99 19-May-99
500 178.0000 17-May-99 19-May-99
50 180.0000 17-May-99 19-May-99
1,600 181.7200 17-May-99 17-May-99
250 182.0000 17-May-99 19-May-99
1,000 178.0000 17-May-99 19-May-99
50 182.0000 17-May-99 19-May-99
3,000 179.5000 17-May-99 19-May-99
44 181.0000 17-May-99 19-May-99
50 179.0000 17-May-99 19-May-99
350 176.5000 18-May-99 20-May-99
2,700 181.5000 18-May-99 20-May-99
7,500 181.4500 18-May-99 18-May-99
2,633 181.5000 18-May-99 20-May-99
200 182.0000 18-May-99 20-May-99
200 179.9000 18-May-99 20-May-99
200 181.8000 18-May-99 20-May-99
2,500 178.0000 18-May-99 20-May-99
200 181.8000 18-May-99 20-May-99
200 180.0000 18-May-99 20-May-99
300 175.0000 18-May-99 20-May-99
150 182.0000 18-May-99 20-May-99
300 176.0000 18-May-99 20-May-99
1,200 179.3160 18-May-99 21-May-99
300 176.0000 18-May-99 20-May-99
100 181.0000 19-May-99 21-May-99
Page 34 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
200 178.5000 19-May-99 21-May-99
35 178.0000 19-May-99 21-May-99
120 181.0000 19-May-99 21-May-99
650 181.0000 19-May-99 21-May-99
5 181.9000 19-May-99 21-May-99
200 181.0000 19-May-99 21-May-99
112 182.0000 20-May-99 25-May-99
200 182.0000 20-May-99 25-May-99
1,116 179.0000 20-May-99 25-May-99
500 179.0000 20-May-99 25-May-99
100 175.0000 21-May-99 26-May-99
2,000 174.3447 21-May-99 27-May-99
150 178.0000 21-May-99 26-May-99
2 176.0000 21-May-99 26-May-99
200 175.0000 21-May-99 26-May-99
200 177.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
200 177.0000 21-May-99 26-May-99
644 179.0000 21-May-99 26-May-99
200 175.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
20 178.0000 21-May-99 26-May-99
500 179.0000 21-May-99 26-May-99
200 178.0000 21-May-99 26-May-99
200 179.0000 21-May-99 26-May-99
200 179.0000 21-May-99 26-May-99
225 176.5000 21-May-99 26-May-99
200 179.0000 21-May-99 26-May-99
2,000 174.1459 21-May-99 27-May-99
200 178.0000 21-May-99 26-May-99
100 180.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
500 179.0000 21-May-99 26-May-99
100 177.0000 21-May-99 26-May-99
1,000 240.2000 6-Apr-99 8-Apr-99
1,000 240.2000 6-Apr-99 8-Apr-99
20 230.0000 9-Apr-99 14-Apr-99
20 230.0000 9-Apr-99 14-Apr-99
900 198.5000 6-May-99 10-May-99
900 198.5000 6-May-99 10-May-99
4,100 196.9095 7-May-99 11-May-99
4,100 196.9105 7-May-99 11-May-99
1,060 182.3700 11-May-99 14-May-99
1,060 182.3700 11-May-99 14-May-99
250 182.3640 12-May-99 18-May-99
250 182.3640 12-May-99 18-May-99
3,000 179.5000 17-May-99 19-May-99
3,000 179.5000 17-May-99 19-May-99
1,200 179.3160 18-May-99 21-May-99
1,200 179.3160 18-May-99 21-May-99
Page 35 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
500 230.0000 18-Mar-99 22-Mar-99
100 230.0000 18-Mar-99 22-Mar-99
1,090 230.5520 18-Mar-99 23-Mar-99
100 230.0000 18-Mar-99 22-Mar-99
300 230.0000 18-Mar-99 22-Mar-99
90 230.0000 18-Mar-99 22-Mar-99
1,210 239.5736 19-Mar-99 24-Mar-99
400 239.0000 19-Mar-99 23-Mar-99
10 239.0000 19-Mar-99 23-Mar-99
500 239.0000 19-Mar-99 23-Mar-99
100 239.0000 19-Mar-99 23-Mar-99
200 239.0000 19-Mar-99 23-Mar-99
1,500 230.5520 23-Mar-99 26-Mar-99
500 230.0000 23-Mar-99 25-Mar-99
1,000 230.0000 23-Mar-99 25-Mar-99
24 219.0000 24-Mar-99 26-Mar-99
600 225.0000 24-Mar-99 26-Mar-99
2,120 222.7934 24-Mar-99 29-Mar-99
146 225.0000 24-Mar-99 26-Mar-99
300 220.0000 24-Mar-99 26-Mar-99
100 225.0000 24-Mar-99 26-Mar-99
54 225.0000 24-Mar-99 26-Mar-99
400 220.0000 24-Mar-99 26-Mar-99
300 220.0000 24-Mar-99 26-Mar-99
55 225.0000 24-Mar-99 26-Mar-99
7 220.0000 24-Mar-99 26-Mar-99
100 220.0000 24-Mar-99 26-Mar-99
34 219.0000 24-Mar-99 26-Mar-99
62 225.0000 25-Mar-99 29-Mar-99
40 225.0000 25-Mar-99 29-Mar-99
102 225.5400 25-Mar-99 30-Mar-99
216 225.5400 26-Mar-99 31-Mar-99
60 225.0000 26-Mar-99 30-Mar-99
50 225.0000 26-Mar-99 30-Mar-99
50 225.0000 26-Mar-99 30-Mar-99
56 225.0000 26-Mar-99 30-Mar-99
300 235.0000 30-Mar-99 1-Apr-99
58 235.0000 30-Mar-99 1-Apr-99
50 235.0000 30-Mar-99 1-Apr-99
100 235.0000 30-Mar-99 1-Apr-99
42 235.0000 30-Mar-99 1-Apr-99
610 235.5640 30-Mar-99 6-Apr-99
60 235.0000 30-Mar-99 1-Apr-99
100 235.0000 31-Mar-99 6-Apr-99
200 235.0000 31-Mar-99 6-Apr-99
9 232.0000 31-Mar-99 6-Apr-99
100 233.0000 31-Mar-99 6-Apr-99
100 235.0000 31-Mar-99 6-Apr-99
100 234.0000 31-Mar-99 6-Apr-99
100 235.0000 31-Mar-99 6-Apr-99
Page 36 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
40 234.0000 31-Mar-99 6-Apr-99
31 234.0000 31-Mar-99 6-Apr-99
100 234.0000 31-Mar-99 6-Apr-99
147 235.0000 31-Mar-99 6-Apr-99
20 233.0000 31-Mar-99 6-Apr-99
69 234.0000 31-Mar-99 6-Apr-99
10 234.0000 31-Mar-99 6-Apr-99
50 235.0000 31-Mar-99 6-Apr-99
1,196 235.0127 31-Mar-99 7-Apr-99
20 232.0000 31-Mar-99 6-Apr-99
562 225.5400 1-Apr-99 8-Apr-99
10 225.0000 1-Apr-99 7-Apr-99
2 225.0000 1-Apr-99 7-Apr-99
550 225.0000 1-Apr-99 7-Apr-99
400 240.0000 6-Apr-99 8-Apr-99
100 240.0000 6-Apr-99 8-Apr-99
200 240.0000 6-Apr-99 8-Apr-99
1,453 240.0000 6-Apr-99 8-Apr-99
10 240.0000 6-Apr-99 8-Apr-99
200 240.0000 6-Apr-99 8-Apr-99
41 240.0000 6-Apr-99 8-Apr-99
400 240.0000 6-Apr-99 8-Apr-99
400 240.0000 6-Apr-99 8-Apr-99
200 240.0000 6-Apr-99 8-Apr-99
10 240.0000 6-Apr-99 8-Apr-99
200 240.0000 6-Apr-99 8-Apr-99
100 245.0000 6-Apr-99 8-Apr-99
1,000 240.2000 6-Apr-99 8-Apr-99
36 240.0000 6-Apr-99 8-Apr-99
100 245.0000 6-Apr-99 8-Apr-99
1,394 240.2953 6-Apr-99 9-Apr-99
36 236.0000 6-Apr-99 8-Apr-99
20 230.0000 9-Apr-99 13-Apr-99
20 230.0000 9-Apr-99 14-Apr-99
620 230.9700 9-Apr-99 13-Apr-99
620 230.9700 9-Apr-99 13-Apr-99
100 228.0000 14-Apr-99 16-Apr-99
100 228.0000 14-Apr-99 19-Apr-99
800 195.9703 20-Apr-99 23-Apr-99
100 209.6000 20-Apr-99 22-Apr-99
200 202.5000 20-Apr-99 22-Apr-99
800 196.5600 20-Apr-99 22-Apr-99
100 213.2700 20-Apr-99 22-Apr-99
100 198.5000 21-Apr-99 23-Apr-99
30 200.0000 21-Apr-99 23-Apr-99
12 203.0000 21-Apr-99 23-Apr-99
100 200.0000 21-Apr-99 23-Apr-99
30 200.3900 21-Apr-99 23-Apr-99
12 202.4300 21-Apr-99 23-Apr-99
500 204.0000 22-Apr-99 26-Apr-99
Page 37 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
400 203.0000 22-Apr-99 26-Apr-99
900 207.0557 22-Apr-99 27-Apr-99
300 206.0000 23-Apr-99 27-Apr-99
131 205.0000 23-Apr-99 27-Apr-99
20 205.0000 23-Apr-99 27-Apr-99
200 205.0000 23-Apr-99 27-Apr-99
100 206.0000 23-Apr-99 27-Apr-99
200 206.0000 23-Apr-99 27-Apr-99
951 206.1235 23-Apr-99 28-Apr-99
100 211.0000 26-Apr-99 28-Apr-99
100 215.0000 26-Apr-99 28-Apr-99
1,297 214.3632 26-Apr-99 29-Apr-99
100 216.0000 26-Apr-99 28-Apr-99
30 215.0000 26-Apr-99 28-Apr-99
15 215.0000 26-Apr-99 28-Apr-99
300 212.5000 26-Apr-99 28-Apr-99
55 215.0000 26-Apr-99 28-Apr-99
100 214.5000 26-Apr-99 28-Apr-99
47 212.0000 26-Apr-99 28-Apr-99
100 216.0000 26-Apr-99 28-Apr-99
100 211.0000 26-Apr-99 28-Apr-99
100 214.0000 26-Apr-99 28-Apr-99
150 216.0000 26-Apr-99 28-Apr-99
100 220.0000 27-Apr-99 29-Apr-99
100 216.1600 27-Apr-99 29-Apr-99
100 195.5800 30-Apr-99 4-May-99
100 195.0000 30-Apr-99 4-May-99
500 199.4975 6-May-99 11-May-99
500 199.0000 6-May-99 6-May-99
1,060 182.3700 11-May-99 14-May-99
44 180.0000 11-May-99 14-May-99
500 182.0000 11-May-99 14-May-99
16 182.0000 11-May-99 14-May-99
500 182.0000 11-May-99 14-May-99
100 180.0000 21-May-99 26-May-99
100 180.0000 21-May-99 26-May-99
100 228.0000 14-Apr-99 19-Apr-99
100 226.0000 15-Apr-99 19-Apr-99
1,090 230.5520 18-Mar-99 23-Mar-99
1,090 230.5520 18-Mar-99 23-Mar-99
1,210 239.5736 19-Mar-99 24-Mar-99
1,210 239.5736 19-Mar-99 24-Mar-99
1,500 230.5520 23-Mar-99 26-Mar-99
1,500 230.5520 23-Mar-99 26-Mar-99
2,120 222.7934 24-Mar-99 29-Mar-99
2,120 222.7934 24-Mar-99 29-Mar-99
102 225.5400 25-Mar-99 30-Mar-99
102 225.5400 25-Mar-99 30-Mar-99
216 225.5400 26-Mar-99 31-Mar-99
216 225.5400 26-Mar-99 31-Mar-99
Page 38 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
610 235.5640 30-Mar-99 6-Apr-99
610 235.5640 30-Mar-99 6-Apr-99
1,196 235.0127 31-Mar-99 7-Apr-99
1,196 235.0127 31-Mar-99 7-Apr-99
562 225.5400 1-Apr-99 8-Apr-99
562 225.5400 1-Apr-99 8-Apr-99
1,394 240.2953 6-Apr-99 9-Apr-99
1,394 240.2953 6-Apr-99 9-Apr-99
100 228.0000 14-Apr-99 19-Apr-99
100 228.0000 14-Apr-99 19-Apr-99
800 195.9703 20-Apr-99 23-Apr-99
800 195.9703 20-Apr-99 23-Apr-99
900 207.0557 22-Apr-99 27-Apr-99
900 207.0557 22-Apr-99 27-Apr-99
951 206.1235 23-Apr-99 28-Apr-99
951 206.1235 23-Apr-99 28-Apr-99
1,297 214.3632 26-Apr-99 29-Apr-99
1,297 214.3632 26-Apr-99 29-Apr-99
500 199.4975 6-May-99 11-May-99
500 199.4975 6-May-99 11-May-99
500 182.4368 12-May-99 18-May-99
300 182.4368 12-May-99 18-May-99
300 182.4368 12-May-99 18-May-99
500 182.4368 12-May-99 18-May-99
2,000 174.3447 21-May-99 27-May-99
2,000 174.3447 21-May-99 27-May-99
2,000 174.1459 21-May-99 27-May-99
2,000 174.1459 21-May-99 27-May-99
39 222.0000 15-Mar-99 17-Mar-99
30 229.5000 16-Mar-99 18-Mar-99
40 229.1000 16-Mar-99 18-Mar-99
260 229.1000 16-Mar-99 18-Mar-99
100 221.0000 17-Mar-99 19-Mar-99
529 221.5000 17-Mar-99 19-Mar-99
300 225.0000 17-Mar-99 19-Mar-99
100 221.0000 17-Mar-99 19-Mar-99
79 226.0000 29-Mar-99 31-Mar-99
100 239.0000 6-Apr-99 8-Apr-99
100 235.0000 6-Apr-99 8-Apr-99
100 239.0000 6-Apr-99 8-Apr-99
100 239.0000 6-Apr-99 8-Apr-99
100 234.0000 6-Apr-99 8-Apr-99
65 239.0000 6-Apr-99 8-Apr-99
25 239.0000 6-Apr-99 8-Apr-99
100 238.0000 6-Apr-99 8-Apr-99
10 235.0000 6-Apr-99 8-Apr-99
130 239.0000 7-Apr-99 9-Apr-99
90 237.5000 7-Apr-99 9-Apr-99
100 239.0000 7-Apr-99 9-Apr-99
200 230.0000 8-Apr-99 12-Apr-99
Page 39 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
60 232.0000 8-Apr-99 12-Apr-99
200 235.0000 8-Apr-99 12-Apr-99
100 230.0000 8-Apr-99 12-Apr-99
100 234.0000 8-Apr-99 12-Apr-99
100 228.2000 13-Apr-99 15-Apr-99
100 228.0000 13-Apr-99 15-Apr-99
200 228.2000 13-Apr-99 15-Apr-99
100 228.0000 13-Apr-99 15-Apr-99
50 228.0000 15-Apr-99 19-Apr-99
100 227.8000 15-Apr-99 19-Apr-99
100 228.0000 15-Apr-99 19-Apr-99
7 227.0000 15-Apr-99 19-Apr-99
100 228.0000 15-Apr-99 19-Apr-99
18 226.5000 16-Apr-99 20-Apr-99
71 225.0000 19-Apr-99 21-Apr-99
100 225.1200 19-Apr-99 21-Apr-99
100 195.0000 28-Apr-99 30-Apr-99
54 199.0000 28-Apr-99 30-Apr-99
100 191.3600 28-Apr-99 30-Apr-99
54 193.3300 28-Apr-99 30-Apr-99
100 195.5800 4-May-99 6-May-99
100 200.0000 4-May-99 6-May-99
70 196.2700 5-May-99 7-May-99
70 197.8000 5-May-99 7-May-99
5 198.0000 6-May-99 10-May-99
270 198.0000 6-May-99 10-May-99
200 198.1000 6-May-99 10-May-99
200 198.0000 6-May-99 10-May-99
210 198.0000 6-May-99 10-May-99
5 198.0000 6-May-99 10-May-99
500 199.0000 6-May-99 10-May-99
80 198.0000 6-May-99 10-May-99
300 197.5000 7-May-99 11-May-99
300 198.0000 7-May-99 11-May-99
300 197.5000 7-May-99 11-May-99
25 197.5000 7-May-99 11-May-99
205 195.5000 7-May-99 11-May-99
200 198.0000 7-May-99 11-May-99
500 197.0000 7-May-99 11-May-99
500 196.0000 7-May-99 11-May-99
200 197.5000 7-May-99 11-May-99
300 194.0000 7-May-99 11-May-99
500 195.5000 7-May-99 11-May-99
1,000 195.0000 7-May-99 11-May-99
100 182.0000 10-May-99 12-May-99
10 180.0000 10-May-99 12-May-99
200 182.0000 10-May-99 12-May-99
Page 40 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
10 181.3200 10-May-99 12-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
200 181.0000 12-May-99 17-May-99
50 182.0000 12-May-99 17-May-99
100 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
200 181.0000 12-May-99 17-May-99
4,000 182.0000 12-May-99 17-May-99
20 182.0000 12-May-99 17-May-99
5,000 182.0000 12-May-99 17-May-99
3,100 182.2000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
700 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
700 181.5000 12-May-99 17-May-99
150 182.0000 12-May-99 17-May-99
100 181.5000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
300 182.5000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
500 181.5000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
400 180.5000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
158 182.0000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
200 180.5000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
1,000 182.0000 12-May-99 17-May-99
450 180.6500 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
50 182.5000 12-May-99 17-May-99
1,000 180.0000 12-May-99 17-May-99
2,000 182.0000 12-May-99 17-May-99
200 182.0000 12-May-99 17-May-99
2,500 182.0000 12-May-99 17-May-99
200 181.5000 12-May-99 17-May-99
2,000 180.5000 12-May-99 17-May-99
2,000 182.0000 12-May-99 17-May-99
250 182.4000 12-May-99 17-May-99
50 183.0000 12-May-99 17-May-99
50 180.6500 12-May-99 17-May-99
Page 41 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 182.0000 12-May-99 17-May-99
500 181.0000 12-May-99 17-May-99
300 182.0000 12-May-99 17-May-99
1,000 182.0000 14-May-99 18-May-99
1,500 180.0000 14-May-99 18-May-99
10 181.5000 14-May-99 18-May-99
985 181.5000 14-May-99 18-May-99
100 182.0000 14-May-99 18-May-99
1,000 180.0000 14-May-99 18-May-99
4,000 182.0000 14-May-99 18-May-99
4 182.0000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
500 181.0000 14-May-99 18-May-99
4 182.9000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
26 182.0000 14-May-99 18-May-99
3,238 182.0000 14-May-99 18-May-99
274 182.0000 14-May-99 18-May-99
500 178.0000 14-May-99 18-May-99
5 181.5000 14-May-99 18-May-99
200 182.0000 14-May-99 18-May-99
500 180.0000 17-May-99 19-May-99
400 180.0000 17-May-99 19-May-99
1,000 178.0000 17-May-99 19-May-99
1,000 179.0000 17-May-99 19-May-99
5 180.0000 17-May-99 19-May-99
250 182.0000 17-May-99 19-May-99
200 180.0000 17-May-99 19-May-99
500 180.0000 17-May-99 19-May-99
4 180.0000 17-May-99 19-May-99
50 180.0000 17-May-99 19-May-99
50 179.0000 17-May-99 19-May-99
44 181.0000 17-May-99 19-May-99
50 182.0000 17-May-99 19-May-99
500 180.5000 17-May-99 19-May-99
500 178.0000 17-May-99 19-May-99
200 181.8000 18-May-99 20-May-99
2,633 181.5000 18-May-99 20-May-99
200 180.0000 18-May-99 20-May-99
300 176.0000 18-May-99 20-May-99
200 182.0000 18-May-99 20-May-99
200 181.8000 18-May-99 20-May-99
300 176.0000 18-May-99 20-May-99
2,700 181.5000 18-May-99 20-May-99
150 182.0000 18-May-99 20-May-99
2,500 178.0000 18-May-99 20-May-99
350 176.5000 18-May-99 20-May-99
300 175.0000 18-May-99 20-May-99
200 179.9000 18-May-99 20-May-99
100 181.0000 19-May-99 21-May-99
Page 42 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
650 181.0000 19-May-99 21-May-99
200 181.0000 19-May-99 21-May-99
120 181.0000 19-May-99 21-May-99
5 181.9000 19-May-99 21-May-99
200 178.5000 19-May-99 21-May-99
35 178.0000 19-May-99 21-May-99
500 179.0000 20-May-99 25-May-99
200 182.0000 20-May-99 25-May-99
1,116 179.0000 20-May-99 25-May-99
112 182.0000 20-May-99 25-May-99
200 179.0000 21-May-99 26-May-99
100 180.0000 21-May-99 26-May-99
200 178.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
200 179.0000 21-May-99 26-May-99
225 176.5000 21-May-99 26-May-99
2 176.0000 21-May-99 26-May-99
200 177.0000 21-May-99 26-May-99
20 178.0000 21-May-99 26-May-99
100 175.0000 21-May-99 26-May-99
200 177.0000 21-May-99 26-May-99
200 175.0000 21-May-99 26-May-99
200 179.0000 21-May-99 26-May-99
150 178.0000 21-May-99 26-May-99
500 179.0000 21-May-99 26-May-99
644 179.0000 21-May-99 26-May-99
200 175.0000 21-May-99 26-May-99
100 177.0000 21-May-99 26-May-99
200 178.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
500 179.0000 21-May-99 26-May-99
25 176.5000 21-May-99 26-May-99
1,000 182.0000 11-May-99 14-May-99
1,000 182.0000 11-May-99 14-May-99
250 182.0000 11-May-99 14-May-99
250 182.0000 11-May-99 14-May-99
1,500 182.0000 11-May-99 14-May-99
87,338 172.0200 11-May-99 14-May-99
34,720 172.0200 11-May-99 14-May-99
3,222 172.0200 11-May-99 14-May-99
9,370 172.0200 11-May-99 14-May-99
4,550 172.0200 11-May-99 14-May-99
6,000 182.0000 11-May-99 14-May-99
3,000 182.0000 11-May-99 14-May-99
6,000 182.0000 11-May-99 14-May-99
5,000 182.0000 11-May-99 14-May-99
2,000 174.1459 21-May-99 27-May-99
4,000 182.0000 11-May-99 14-May-99
4,000 182.0000 11-May-99 14-May-99
3,000 182.0000 11-May-99 14-May-99
Page 43 of 44 pages
<PAGE>
<CAPTION>
Purchases Sales Price Trade Date Settlement Date
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1,000 182.0000 11-May-99 14-May-99
1,000 182.0000 11-May-99 14-May-99
500 182.0000 11-May-99 14-May-99
500 182.0000 11-May-99 14-May-99
1,500 182.0000 11-May-99 14-May-99
500 182.0000 11-May-99 14-May-99
3,500 182.0000 11-May-99 14-May-99
300 182.0000 11-May-99 14-May-99
330 182.0000 11-May-99 14-May-99
730 182.0000 11-May-99 14-May-99
460 182.0000 11-May-99 14-May-99
890 182.0000 11-May-99 14-May-99
110 182.0000 11-May-99 14-May-99
110 182.0000 11-May-99 14-May-99
740 182.0000 11-May-99 14-May-99
370 182.0000 11-May-99 14-May-99
190 182.0000 11-May-99 14-May-99
110 182.0000 11-May-99 14-May-99
110 182.0000 11-May-99 14-May-99
250 182.0000 11-May-99 14-May-99
230 182.0000 11-May-99 14-May-99
170 182.0000 11-May-99 14-May-99
400 182.0000 11-May-99 14-May-99
1,420 182.0000 11-May-99 14-May-99
290 182.0000 11-May-99 14-May-99
830 182.0000 11-May-99 14-May-99
560 182.0000 11-May-99 14-May-99
880 182.0000 11-May-99 14-May-99
2,000 182.0000 11-May-99 14-May-99
2,000 182.0000 11-May-99 14-May-99
38 182.0000 11-May-99 14-May-99
135 182.0000 11-May-99 14-May-99
50 182.0000 11-May-99 14-May-99
38 182.0000 11-May-99 14-May-99
63 182.0000 11-May-99 14-May-99
38 182.0000 11-May-99 14-May-99
75 182.0000 11-May-99 14-May-99
163 182.0000 11-May-99 14-May-99
</TABLE>
Page 44 of 44 pages
<PAGE>
Exhibit (99.1)
iXOS SOFTWARE AG
and
THE SELLING SHAREHOLDERS
LISTED ON EXHIBIT A
- and -
GOLDMAN, SACHS & CO. oHG
and the other Underwriters named herein
GLOBAL UNDERWRITING AGREEMENT
CONTENTS
Page
ARTICLE 1SALE OF FIRM SHARES 2
ARTICLE 2OPTIONAL SHARES 3
ARTICLE 3SHARE CERTIFICATES; DELIVERY AND CLEARING 3
ARTICLE 4PAYMENT AND DELIVERY; AMERICAN DEPOSITARY SHARES 4
ARTICLE 5THE OFFERING; SELLING TERMS 5
ARTICLE 6AWARRANTIES AND UNDERTAKINGS BY THE COMPANY 5
ARTICLE 6BWARRANTIES AND UNDERTAKINGS BY THE SELLING SHAREHOLDERS 14
ARTICLE 7WARRANTIES AND UNDERTAKINGS BY THE UNDERWRITERS 15
ARTICLE 8INDEMNITIES 15
ARTICLE 9FEES; COMMISSIONS; EXPENSES 19
ARTICLE 10CONDITIONS PRECEDENT AS TO FORCE MAJEURE 21
ARTICLE 11DEFAULT BY UNDERWRITER 24
ARTICLE 12COMMUNICATIONS 25
ARTICLE 13GOVERNING LAW AND JURISDICTION 26
ARTICLE 14MISCELLANEOUS 27
Annex ASpecific Provision Regarding International Distribution 29
Exhibit ASelling Shareholders 30
GLOBAL UNDERWRITING AGREEMENT dated May 11, 1999 among
(1) iXOS SOFTWARE AG (the "Company"),
(2) The SELLING SHAREHOLDERS listed on Exhibit A,
(3) GOLDMAN, SACHS & CO. oHG (the "Global Coordinator"), and
(4) The FINANCIAL INSTITUTIONS set forth in Schedules I and II hereto (each
an "Underwriter" and together with the Global Coordinator the
"Underwriters").
RECITALS
(A) The Company is a stock corporation (Aktiengesellschaft) incorporated under
the laws of the Federal Republic of Germany (the "Federal Republic") and
registered under docket number HRB116846 with the commercial register
(Handelsregister) of the Local Court in Munich (the "Commercial Register").
(B) As at the date hereof, the Share Capital (Grundkapital) of the Company is
Deutsche Mark ("DM") 19,044,985. It is divided into 3,808,947 bearer ordinary
shares, no par value ("Ordinary Shares") with an intrinsic value of DM 5 each
("Assumed Par Value") (collectively, the "Existing Shares").
(C) The Global Coordinator is managing an offering of the Firm Shares and the
Optional Shares (in each case, as hereinafter defined, and, collectively, the
Offer Shares) by the Underwriters (the "Global Offering").
(D) The Selling Shareholders desire to sell to the Underwriters and the
Underwriters desire to purchase, an aggregate of 415,000 Existing Shares (the
"Firm Shares") owned by the Selling Shareholders as provided herein and in the
Offer Documents (as hereinafter defined).
(E) For purposes of the Global Offering, the Underwriters propose to form two
regional syndicates (the "Regional Syndicates") covering the United States and
Canada (the "United States Syndicate") and the Federal Republic and the rest of
the world (the "International Syndicate"), the members of such Regional
Syndicates being set forth in Schedules I and II hereto (the regions in which
each Regional Syndicate will offer Ordinary Shares hereinafter collectively
referred to as "Regions" or individually as a "Region").
(F) For purposes of the Global Offering, the Company has prepared, or proposes
to prepare, a German securities sales prospectus (Verkaufsprospekt) (the "German
Prospectus"), a U.S. Prospectus (as defined herein) and an international
offering circular (the "International Prospectus") (collectively, including any
preliminary versions thereof that have been published or distributed to
prospective investors, the "Offer Documents").
(G) As of even date herewith, the Global Coordinator and the other Underwriters
are entering into an agreement among underwriters (the "Agreement Among
Underwriters"), providing for the coordination of their activities.
ARTICLE 1
SALE OF FIRM SHARES
(1) Sale and Purchase. Subject to the terms and conditions set forth in this
Agreement, each of the Selling Shareholders agrees to sell to the Underwriters
the Firm Shares as set forth opposite his name in Exhibit A to this Agreement,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Selling Shareholders at the Offering Price, the number of Firm Shares to be
set forth, collectively, opposite the name of such Underwriter under the heading
"Firm Shares" in Schedules I and II hereto at the Offering Price of 182 per Firm
Share. The number of Firm Shares which any particular Underwriter shall be
required to purchase pursuant to this Agreement shall not exceed the maximum
number set forth, collectively, opposite such Underwriter's name in Schedules I
and II hereto, except to the extent that any Underwriter's underwriting
commitment is increased pursuant to Article 2.
(2) Transfer of Rights. Each of the Underwriters, other than the Global
Coordinator, may transfer its right to purchase the Firm Shares to the Global
Coordinator, who, in such case, will purchase the Firm Shares for the account of
the several Underwriters. In any such case, each Underwriter shall be obliged to
purchase and sell the number of Firm Shares as described in Article 1(1) from
the Global Coordinator. Any transfer of rights pursuant to this subsection will
not alter the rights and obligations of the several Underwriters to the Selling
Shareholders under this Agreement to purchase and sell the Firm Shares, nor will
such rights and obligations be assumed by the Global Coordinator.
(3) Underwriters not Joint Debtors or Creditors. Each of the Underwriters shall
acquire sole title to the Firm Shares purchased by it pursuant to this
Agreement. The Underwriters shall be neither joint debtors nor joint creditors;
there shall be no joint or fractional co-ownership in respect of Firm Shares
among the several Underwriters.
(4) Selling Shareholders not Jointly Liable. The Selling Shareholders shall be
liable under this Agreement only severally and not jointly.
ARTICLE 2
OPTIONAL SHARES
(1) Subject to the terms and conditions set forth in this Agreement, each of the
Selling Shareholders hereby grant to the Underwriters the right to purchase at
their election up to the number of additional Shares set forth opposite his name
in Exhibit A hereto (the "Optional Shares" and together with the Firm Shares,
the "Offer Shares"), at the purchase price per Share set forth in Article 1 (1)
above, for the sole purpose of covering overallotments in the sale of the Firm
Shares. Any such election to purchase Optional Shares may be exercised only by
written notice from the Global Coordinator on behalf of the Underwriters to the
Selling Shareholders, given within a period of 30 calendar days after the date
of this Agreement and setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be delivered, as
determined by the Global Coordinator.
(2) Underwriters not Joint Debtors or Creditors. The provisions of Article 1(3)
apply, mutatis mutandis, to the purchase and sale of the Optional Shares.
ARTICLE 3
SHARE CERTIFICATES; DELIVERY AND CLEARING
(1) Delivery of the Firm Shares. Each of the Selling Shareholders shall, no
later than May 10, 1999, have delivered to the Global Coordinator, free and
clear of all liens, encumbrances, equities or claims, such number of Firm Shares
to be sold by him as set forth opposite his name in Exhibit A hereto.
(2) Delivery of the Firm Shares. The Firm Shares shall be delivered to the
several Underwriters by the Global Coordinator by book entry transfer in DBC to
deposit accounts with DBC as specified by each Underwriter in such amount as the
Global Coordinator may designate.
ARTICLE 4
PAYMENT AND DELIVERY; AMERICAN DEPOSITARY SHARES
(1) (a) Offer Shares. Subject to the terms and conditions of this Agreement each
of the Underwriters agrees to pay each of the Selling Shareholders the Offering
Price for the number of Firm Shares set forth, collectively, opposite its name
in Schedule I less a deduction for underwriting commission, in each case against
the release of such Firm Shares to such Underwriter pursuant to Article 4(1).
With effect as of the relevant Closing, the Global Coordinator, on behalf of the
Underwriters, shall transfer the Offering Price for the number of Firm Shares,
less a deduction for underwriting commission, to the respective accounts of the
Selling Shareholders.
(b) Optional Shares. Subject to the terms and conditions of this Agreement each
of the Underwriters agrees to pay each of the Selling Shareholders the Offering
Price for the number of Optional Shares set forth, collectively, opposite its
name in Schedule I less a deduction for underwriting commission, in each case
against the release of such Optional Shares to such Underwriter pursuant to
Article 4(1). With effect as of the relevant Closing, the Global Coordinator, on
behalf of the Underwriters, shall transfer the Offering Price for the number of
Optional Shares, less a deduction for underwriting commission, to the respective
accounts of the Selling Shareholders.
(2) American Depositary Shares
(a) With respect to all or a portion of the Firm Shares, the Global Coordinator,
on behalf of the Underwriters, may elect to have ADSs representing such Firm
Shares delivered and paid for hereunder in lieu of such Firm Shares. Notice of
such election shall be given by the Global Coordinator to the Company and the
Selling Shareholders at least 48 hours prior to each Closing. The Offering Price
to be paid by the Underwriters for each ADS so delivered as a result of making
such election shall be $39.021 per ADS and shall be paid in accordance with
subsection (1) above;
(b) Each ADS will initially represent the right to receive one-fifth of an Offer
Share pursuant to the terms and conditions of the Deposit Agreement;
(c) ADSs to be delivered to any Underwriter hereunder shall be delivered in
definitive form, and in such authorized denominations and registered in such
names as the Global Coordinator may request, by or on behalf of the Company to
such Underwriter and, in the case of ADSs to be delivered through the facilities
of DTC, registered in the name of a nominee of DTC, for the account of such
Underwriter against U.S. Dollar payment by or on behalf of such Underwriter of
the Offering Price therefor in accordance with subsection (1) above; and
(d) ADRs will be available for checking at least 24 hours prior to the relevant
Closing with respect thereto at the office of DTC or its designated custodian.
ARTICLE 5
THE OFFERING; SELLING TERMS
The Underwriters propose to offer the Offer Shares for sale to investors, as
hereinafter set forth and as specified in the Offer Documents. The general
selling terms set forth in Schedule III to this Agreement apply to the offer and
sale of the Offer Shares in each Region. (1) The U.S. Offering. The Offer Shares
purchased by the U.S. Syndicate will be publicly offered for sale to investors
in the United States and privately offered for sale to institutional investors
in Canada (collectively, the "U.S. Offering").
(2) The International Offering. The Offer Shares purchased by the International
Syndicate will be publicly offered for sale to investors in the Federal Republic
and privately offered for sale to institutional investors in the rest of the
world. In addition to the provisions of this Agreement and Schedule III, the
terms set out in Annex A apply to offers and sales of Offer Shares in the rest
of the world.
ARTICLE 6A
WARRANTIES AND UNDERTAKINGS BY THE COMPANY
(1) Warranties. The Company warrants, in the form of an independent guarantee
and irrespective of negligence, to each of the Underwriters that:
(a) the Offer Documents comply, and any amendments or supplements to the Offer
Documents will comply, with all legal requirements applicable in the Federal
Republic and the United States and all applicable rules and regulations of any
competent governmental or regulatory or stock exchange authority in the Federal
Republic and the United States; the statements that are contained in the Offer
Documents, or will be contained in any amendments or supplements thereto, as of
their respective dates, are or will be in every material respect accurate and
complete and not misleading; provided, that the foregoing warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by (i) an Underwriter
through the Global Coordinator and (ii) a Selling Shareholder to the extent the
information relates to such Selling Shareholder, expressly for use in any Offer
Document;
(b) a registration statement on Form F-1 (File No. 333-10286) (the "Initial
Registration Statement") in respect of the Offer Shares and ADSs has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to the Global Coordinator, and, excluding exhibits, to
the Global Coordinator for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the Act, is
hereinafter called a "U.S. Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information contained in
the form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with subsection (2) below and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration Statement at the
time it was declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each as amended at the
time such part of the Initial Registration Statement became effective, are
hereinafter collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "U.S. Prospectus";
(c) no order preventing or suspending the use of any U.S. Preliminary Prospectus
has been issued by the Commission, and each U.S. Preliminary Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder;
(d) the Registration Statement conforms, and the U.S. Prospectus, and any
further amendments or supplements thereto, when they become effective or are
filed with the Commission, as the case may be, will conform, in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder;
(e) the Company's registration statement on Form F-6 (File No.333-9402) in
respect of the ADSs has been filed with the Commission has been declared
effective by the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (the various parts of such registration statement, including all
exhibits thereto, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "ADS Registration
Statement");
(f) the consolidated financial statements included in the Offer Documents
present fairly the financial position and results of operations of the Company
and its subsidiaries on a consolidated basis and the unconsolidated statutory
financial statements of iXOS Software AG included in the International
Prospectus and the German Prospectus present fairly the financial position and
results of operations of iXOS Software AG on an unconsolidated basis as at the
respective dates or for the respective periods to which they apply and such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles in the United States ("U.S. GAAP") and
the unconsolidated financial statements have been prepared in accordance with
the German Commercial Code (Handelsgesetzbuch, "HGB") applied on a consistent
basis throughout the respective periods involved, except as stated in the Offer
Documents;
(g) since the date of the latest audited financial statements contained in the
Offer Documents neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business, as currently conducted and
described in the Offer Documents (the "Business"), from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth in the Offer Documents; since the respective dates as of which information
is given in the Offer Documents there has not been any change in the share
capital of the Company or long term debt of the Company and its subsidiaries
taken as a whole or any material adverse change or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole otherwise than as set forth in
the Offer Documents;
(h) the Company is a stock corporation (Aktiengesellschaft) duly incorporated
and validly existing under the laws of the Federal Republic; the Company has the
power and authority to own, lease and operate its properties and to conduct its
Business; the Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns, leases or operates properties or conducts
business so as to require such qualification or is subject to no material
liability or disability by reason of the failure to be so qualified in any such
jurisdiction; each subsidiary of the Company is a corporation duly incorporated
and validly existing under the laws of its jurisdiction of incorporation; each
such subsidiary has the power and authority to own, lease and operate its
properties and to conduct its Business;
(i) the Share Capital of the Company is as set forth in the Offer Documents; all
of the Existing Shares have been validly issued and are fully paid and conform
to the description of the Share Capital contained in the Offer Documents; there
are no outstanding securities convertible into or exchangeable for, or options
to purchase from the Company, or obligations of the Company to issue, Ordinary
Shares of the Company, except as set forth in the Offer Documents. All of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(j) all dividends and other distributions declared and payable on the Offer
Shares may under the current law and regulations applicable in the Federal
Republic be paid to the Depositary in Deutsche Mark which may be converted into
foreign currency that may be freely transferred out of the Federal Republic;
except as described in the Offer Documents, such dividends and other
distributions will not be subject to withholding or other taxes under the laws
applicable in the Federal Republic and are otherwise free of any other tax,
withholding or deduction in the Federal Republic and without the necessity of
obtaining any Governmental Authorization (as defined below) in the Federal
Republic;
(k) this Agreement has been duly authorized and, when executed and delivered by
the Company, will constitute the valid and binding agreement of the Company,
enforceable in accordance with its terms subject to Section 57 of the German
Stock Corporation Act, bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to and affecting creditors'
rights and general equity principles;
(l) provided that this Agreement complies with Section 57 of the German Stock
Corporation Act, the execution and delivery by the Company of this Agreement,
the compliance by the Company with the provisions of this Agreement and the
consummation of the transactions herein contemplated:
(i) will not conflict with, or result in a violation of the provisions of, or
constitute a default under, any agreement or instrument to which the Company or
any of its subsidiaries is a party or by which any of them is bound or to which
any of their assets is subject, or any license, permit or authorization held by
or issued to the Company, any of its subsidiaries which conflict, violation or
default would have a material adverse effect on the business or financial
condition of the Company and its subsidiaries, taken as a whole, or would impair
the ability of the Company to consummate, or would otherwise materially
adversely effect, the transactions contemplated hereby;
(ii) will not result in any violation of the Articles of Association or other
governing documents of the Company or any of its subsidiaries or any provision
of law, judgment or decree of any Governmental Authority (as defined below)
which violation would have a material adverse effect on the business or
financial condition of the Company and its subsidiaries, taken as a whole, or
would impair the ability of the Company to consummate, or would otherwise
materially adversely effect, the transactions contemplated hereby;
(iii) do not require any consent, authorization, order, registration or
qualification (each a "Governmental Authorization") of or with any court or
governmental, regulatory or stock exchange authority having jurisdiction over
the Company or any subsidiary or any of their respective assets, or over the
Global Offering or any portion thereof, (each a "Governmental Authority"),
except the registration of the Offer Shares and the ADSs under the securities or
similar laws of the United States, and such Governmental Authorizations that
have been duly obtained and which are in full force and effect and copies of
which have been furnished to the Global Coordinator;
(m) neither the Company nor any of its subsidiaries is in violation of its
Articles of Association or other governing documents or in default in the
performance or observance of any obligation contained in any agreement or
instrument to which it is a party or by which it or any of its assets may be
bound which violation would have a material adverse effect on the business or
financial condition of the Company and its subsidiaries, taken as a whole, or
would impair the ability of the Company to consummate, or would otherwise
materially adversely effect, the transactions contemplated hereby;
(n) neither the Company nor any of its subsidiaries has taken, directly or
indirectly, any action which was designed to or which has constituted or which
might reasonably be expected to cause or result in stabilisation or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Offer Shares and ADSs;
(o) without limiting the generality of the warranty in subparagraph (a) of this
subsection (1), the statements set forth in the U.S. Prospectus under the
captions "Description of Share Capital" and "Description of American Depositary
Shares", insofar as they purport to constitute a summary of the terms of the
Ordinary Shares and the ADSs, respectively, and in the German Prospectus under
the caption "Kapitalverhaltnisse", insofar as it purports to constitute a
summary of the terms of the Ordinary Shares and the U.S. Prospectus under the
captions "German Taxation" and "Underwriting", and in the German Prospectus
under the headings "Besteuerung in der Bundesrepublik Deutschland" and "Angebot
und Ubernahme", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate and complete in all material
respects; provided, however, that such warranty does not extend to any
information furnished in writing to the Company by an Underwriter through the
Global Coordinator expressly for use in any Offer Document;
(p) other than as set forth in the Offer Documents, there are no, and during the
period from January 1, 1997 to the date hereof have not been, any legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any asset of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries would individually or in the aggregate have a material adverse
effect on the Business, the current consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental Authority or
threatened by others;
(q) the Company is not and, after giving effect to the offering and sale of the
Offer Shares, will not be an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the United States
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) the Company is not a Passive Foreign Investment Company ("PFIC") within the
meaning of Section 1296 of the United States Internal Revenue Code of 1986, as
amended, and is not likely to become a PFIC;
(s) the Company and each of its subsidiaries have all licenses, franchises,
permits, authorizations, approvals and orders and other concessions, including
those of and from all Governmental Authorities, that are necessary to own or
lease their properties and conduct their respective Businesses and that are
material to the Company and its subsidiaries taken as a whole;
(t) no labour dispute, strike or other collective bargaining measure currently
exists or is currently threatened by any employees of the Company or any of its
subsidiaries, or any representative of such employees, which, if resolved to the
detriment of the Company or any of its subsidiaries, carried out or implemented,
would have a materially adverse effect on the Business, the then current
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole;
(u) the Company and its subsidiaries have sufficient interests in all patents,
trademarks, servicemarks, trade names, copyrights, trade secrets, information,
proprietary rights and processes ("Intellectual Property") necessary for their
Business as described in the Offer Documents and, to the Company's knowledge,
necessary in connection with the products and services under development, in
each case, to the knowledge of the Company after due inquiry without any
conflict with or infringement of the interests of others, and have taken all
steps necessary to secure interests in such Intellectual Property from their
contractors, except as set forth in the Offer Documents, and the Company is not
aware of outstanding options, licenses or agreements of any kind relating to the
Intellectual Property of the Company which are required to be set forth in the
Offer Documents, and, except as set forth in the Offer Documents, neither the
Company nor any of its subsidiaries is a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property of any other
person or entity which are required to be set forth in the Offer Documents. None
of the technology employed by the Company has been obtained or is being used by
the Company or its subsidiaries in violation of any contractual or fiduciary
obligation binding on the Company or any of its subsidiaries or any of its
directors or executive officers or, to the Company's knowledge, any of its
employees or otherwise in violation of the rights of any persons, except as
disclosed in the Offer Documents. Neither the Company nor any of its
subsidiaries has received any written or, to the Company's knowledge, oral
communications alleging that the Company or any of its subsidiaries has
violated, infringed or conflicted with, or, by conducting its Business as set
forth in the Offer Documents, would violate, infringe or conflict with any of
the Intellectual Property of any other person or entity other than any such
violation, infringement or conflict which would not have a materially adverse
effect on the Business, the then current consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; provided that this Agreement complies with
Section 57 of the German Stock Corporation Act, neither the execution nor
delivery of this Agreement, nor the operation of the Business by the employees
of the Company and its subsidiaries, nor the conduct of the Business as
described in the Offer Documents will result in any breach or violation of the
terms, conditions or provisions of, or constitute a default under, any material
contract covenant or instrument known to the Company under which any of such
employees is now obligated, and the Company and its subsidiaries have taken and
will maintain reasonable measures to prevent the unauthorized dissemination or
publication of their confidential information and, to the extent contractually
required to do so, the confidential information of third parties in their
possession; and
(v) the Company maintains insurance of the types and in the amounts generally
deemed adequate for its business, including, but not limited to, business
interruption insurance and insurance covering real and personal property owned
or leased by the Company against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which insurance is in
full force and effect.
(2) Undertakings. The Company agrees with each of the Underwriters:
(a) to prepare all amendments or supplements to the Offer Documents, including
without limitation any amendments required pursuant to Section 45 of the German
Stock Exchange Act, necessary in order to comply with all legal requirements
applicable in the Federal Republic and the United States and all applicable
rules and regulations of any competent Governmental Authority, in a form
approved by the Global Coordinator on behalf of the Underwriters;
(b) to make no amendment or supplement to any Offer Document (i) without prior
written notice thereof to the Global Coordinator and (ii) which has been
reasonably disapproved by the Global Coordinator promptly after such notice
thereof;
(c) to advise the Global Coordinator, promptly after it receives notice thereof,
of the time when any amendment to any of the Offer Documents has been filed or
becomes effective or any supplement to any Offer Document or any amended Offer
Document has been filed and to furnish the Global Coordinator with copies
thereof;
(d) without limiting the foregoing, to prepare the U.S. Prospectus in a form
approved by the Global Coordinator and to file the U.S. Prospectus pursuant to
Rule 424(b) under the Act no later than the Commission's close of business on
the second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the Registration
Statement or U.S. Prospectus which shall be disapproved by the Global
Coordinator after reasonable notice thereof; to advise the Global Coordinator,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the U.S. Prospectus or any amended U.S. Prospectus has been filed and to furnish
the Global Coordinator copies thereof; to advise the Global Coordinator,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any U.S.
Preliminary Prospectus or Prospectus, of the suspension of the qualification of
the Offer Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
U.S. Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any U.S.
Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order; (e) for
a period of 90 days from the date of this Agreement, not to (A) directly or
indirectly, issue, sell, offer, contract to sell, otherwise dispose of or
announce the offering of any Shares or preference shares of the Company out of
authorized capital (Genehmigtes Kapital) or any other securities which are
convertible into or exchangeable for or which carry the right to acquire any
such ordinary shares or preference shares of the Company, (B) initiate a capital
increase other than for the purposes of issuing (i) Ordinary Shares or options
for Ordinary Shares to directors or employees of the Company or any of its
subsidiaries, (ii) Ordinary Shares as stock dividends (Kapitalerhohungen aus
Gesellschaftsmitteln) or (iii) Ordinary Shares in connection with an acquisition
(x) directly to another party to such acquisition, in which case each person so
acquiring Ordinary Shares issued by the Company shall have agreed in writing not
to take any action in relation to the Ordinary Shares so acquired that the
Company could not take in relation to its authorized capital pursuant to clause
(A) of this subparagraph, including any action prohibited by clause (C) of this
subparagraph or (y) to raise capital to finance such acquisition, and (C) enter
into any transaction (including a derivatives transaction) having an economic
effect similar to that of a sale of Ordinary Shares or preference shares of the
Company, except in the case of each of clause (A), (B) and (C), with the prior
written consent of the Global Coordinator;
(f) not to (and to cause its subsidiaries not to) take, directly or indirectly,
any action which is designed to or which constitutes or which might reasonably
be expected to cause or result in stabilisation or manipulation of the price of
any security of the Company to facilitate the sale or resale or the Offer Shares
and the ADSs;
(g) to take all action necessary from time to time to maintain the listing of
its Share Capital on the Stock Exchanges;
(i) to comply with undertakings set forth in Article 7(2)(e),(f),(g),(j) and (k)
in the Underwriting Agreement dated September 27, 1998.
ARTICLE 6B
WARRANTIES AND UNDERTAKINGS BY THE SELLING SHAREHOLDERS
(1) Warranties. Each Selling Shareholder warrants, severally and not jointly, in
the form of an independent guarantee and irrespective of negligence, to each of
the Underwriters that:
(a) All Governmental Authorizations required for the sale and delivery of the
Offer Shares to be sold by the Selling Shareholder hereunder and for the
execution and delivery by the Selling Shareholder of this Agreement for the sale
and delivery of the Offer Shares to be sold by such Selling Shareholder
hereunder have been obtained; and the Selling Shareholder has full right, power
and authority to enter into this Agreement;
(b) The sale of the Offer Shares to be sold by the Selling Shareholder hereunder
and the compliance by the Selling Shareholder with all the provisions of this
Agreement and the Pricing Agreement will not conflict with or result in a
violation of the provisions of, or constitute a default under, any agreement or
instrument to which the Selling Shareholder is a party or to which any of the
property or assets of the Selling Shareholder is subject; nor will such action
result in any violation of the provisions of any statute or any order, rule or
regulation of any Governmental Authority having jurisdiction over the Selling
Shareholder or the property of the Selling Shareholder;
(c) The Selling Shareholder has, and immediately prior to any Closing will have,
good and valid title to the Offer Shares to be sold by such Selling Shareholder
hereunder free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Offer Shares at any such Closing, good and valid title to
such Shares, free and clear of all liens, encumbrances, equities or claims will
pass to the Underwriters;
(d) The Selling Shareholder has not taken and will not take, directly or
indirectly, any action which is designed to or which is constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of the Offer Shares to facilitate the sale or resale of the Offer
Shares; and
(e) To the extent that any statements or omissions made in the Offering
Documents are made or omitted in reliance upon or in conformity with written
information furnished to the Company by such Selling Shareholder expressly for
use therein, such Offering Documents do not contain any untrue statement of a
material fact or omit to state any material fact directly relating to such
Selling Shareholder required to be stated therein or necessary to make the
statements therein not misleading.
(2) Undertakings. (a) Each Selling Shareholder agrees with each of the
Underwriters that, except for the Offer Shares, for a period of ninety days from
the date of this Agreement, not to, directly or indirectly, offer, sell,
contract to sell or otherwise dispose of, except as provided in this Agreement,
any Ordinary Shares of the Company or any securities that are substantially
similar to the Ordinary Shares of the Company, including but not limited to any
securities that are convertible into or exchangeable for, or to represent the
right to receive, Ordinary Shares of the Company or any substantially similar
securities, without the prior written consent of the Global Coordinator.
(b) to furnish the Underwriters with copies of the Offer Documents in such
quantities as the Global Coordinator on behalf of the Underwriters may from time
to time reasonably request; and if the delivery of a disclosure document is
required at any time prior to the expiration of nine months after the time of
issue of any Offer Document in connection with the offering or sale of the Offer
Shares or ADSs and if at such time any events shall have occurred as a result of
which any Offer Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Offer Document was delivered, not misleading, or
would otherwise fail to comply with the applicable rules and regulations of any
Governmental Authority, to notify the Global Coordinator on behalf of the
Underwriters, and upon the request of the Global Coordinator, to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Global Coordinator may from time to time reasonably request
of such an amended Offer Document or any supplement to the respective Offer
Document which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver an Offer Document
in connection with sales of any of the Offer Shares or ADSs at any time nine
months or more after the time of issue of such document upon the Global
Coordinator's request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Global Coordinator may request
of an amended or supplemented Offer Document complying with applicable law,
including, but not limited to, Section 10(a)(3) of the Act;
ARTICLE 7
WARRANTIES AND UNDERTAKINGS BY THE UNDERWRITERS
Each Underwriter, severally and not jointly, hereby warrants to and covenants
with the Company that it has complied and will comply with the provisions, if
any, applying to the Underwriters participating in the Regional Syndicate or
Syndicates of which such Underwriter is a member, as set out in Annex A, and
with the General Selling Terms set out in Schedule III hereto.
ARTICLE 8
INDEMNITIES
(1) By the Company.
(a) The Company agrees to indemnify each Underwriter and its directors,
officers, partners and employees, any affiliate of such Underwriter and each
person who may be deemed to control such Underwriter (each, together with BT
Alex. Brown Inc. pursuant to subparagraph (b) of this subsection (1), an
"Indemnified Person"), against any losses, claims, damages or liabilities to
which such Indemnified Person may become subject and which arise out of, or in
relation to, or in connection with any material misstatement or alleged material
misstatement contained in any Offer Document and the ADS Registration Statement
(except for any statement or misstatement made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Global Coordinator expressly for use in Offer Documents
or the ADS Registration Statement) or 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; or (b) any breach by the Company of any of
its obligations under this Agreement. In each such case, the Company will
reimburse each Indemnified Person for any legal or other expenses reasonably
incurred by such Indemnified Person in connection with investigating or
defending any such action or claim as such expenses are incurred; and
(b) Provided that this Agreement complies with Section 57 of the German Stock
Corporation Act, the Company agrees to indemnify and hold harmless BT Alex.
Brown Inc. in its capacity as a qualified independent underwriter ("QIU"),
against any losses, claims, damages or liabilities to which the QIU may become
subject and which arise out of, or in relation to, or in connection with, any
claim, act, suit or proceeding relating to or arising out of the offering and
sale of the Offer Shares by the Underwriters as contemplated by this Agreement,
and will reimburse the QIU for any legal or other expenses reasonably incurred
by such QIU in connection with investigating or defending any such action or
claim as such expenses are incurred.
(2) By the Selling Shareholders. Each Selling Shareholder agrees (severally, and
not jointly) to indemnify each Underwriter and its directors, officers, partners
and employees, any affiliate of such Underwriter and each person who may be
deemed to control such Underwriter (each an "Indemnified Person"), against any
losses, claims, damages or liabilities to which such Indemnified Person may
become subject and which arises out of, or in relation to, or in connection
with, (a) any inaccuracy or alleged inaccuracy of any of the warranties
contained in Article 6B(I) or in connection with any material misstatement or
alleged material misstatement directly relating to such Selling Shareholder
contained in the U.S. Prospectus and the International Prospectus in the
sections entitled "Management and Employees" and "Principal and Selling
Shareholders" and in the German Prospectus in the sections entitled "Organe und
Mitarbeiter" and "Hauptaktionare und abgebende Aktionare" (except for any
statement or misstatement made in reliance upon or in conformity with
information furnished in writing to the Company by any Underwriter through the
Global Coordinator expressly for use in the Offer Documents) or any omission or
alleged omission to state therein a material fact directly relating to such
Selling Shareholder required to be stated therein and necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Offering Document in reliance upon and in
conformity with information furnished through the Company by such Selling
Shareholder expressly for use therein; or (b) any breach by such Selling
Shareholder of any of its obligations under this Agreement. In each such case,
the Selling Shareholder will reimburse each Indemnified Person for any legal or
other expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(3) By the Underwriters. Each Underwriter agrees, severally and not jointly, to
indemnify the Company and its directors, officers and employees, any affiliate
of the Company and any person who may be deemed to control the Company under any
applicable laws, and each of the Selling Shareholders (each an "Indemnified
Person"), against any losses, claims, damages or liabilities to which such
indemnified person may become subject and which arise out of, in relation to, or
in connection with, (a) any inaccurate statement or alleged inaccurate statement
contained in any Offer Document and ADS Registration Statement; or (b) any
breach by any Underwriter of any of its obligations under this Agreement;
provided, that such inaccurate statement or alleged inaccurate statement was
made in reliance on, and in conformity with, written information furnished to
the Company by such Underwriter through the Global Coordinator expressly for use
in any such Offer Document or the ADS Registration Statement. Such Underwriter
will reimburse each Indemnified Person for any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim as such expenses are incurred.
(4) Assumption of Defence. Promptly after receipt by an Indemnified Person under
subsections (1), (2) or (3) above of notice of the commencement of any action,
such Indemnified Person shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any Indemnified Person otherwise than under such subsection. In case any such
action shall be brought against any Indemnified Person and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such Indemnified Person (which shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
Indemnified Person of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such Indemnified Person under such
subsection for any legal expense of other counsel or any other expenses in each
case subsequently incurred by such Indemnified Person, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the Indemnified Person, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Person is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the Indemnified Person from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified Person.
(5) Contribution. If the indemnification provided for in this Article 8 is
unavailable to or insufficient to hold harmless an Indemnified Person in respect
of any losses, claims, damages or liabilities (or actions in respect thereto)
referred to therein, then each indemnifying person shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the Offer Shares and ADSs. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
Indemnified Person failed to give notice required hereunder, then each
indemnifying person shall contribute to such amount paid or payable by such
Indemnified Person in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Shareholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Offer Shares and ADSs purchased under this Agreement (before deducting
expenses) received by the Company and Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Offer Shares and ADSs purchased under this Agreement, in each case as set
forth in the Offer Documents. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Shareholders on
the one hand and the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (5) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (5). The amounts paid or payable by an
Indemnified Person as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (5) shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (5), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offer Shares and ADSs underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(5) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(6) No Release. The Company and Selling Shareholders, respectively, expressly
acknowledge that they shall not be released from the obligations under
subsections (1), (2) and (5) above by reason of (a) the fact that the Global
Coordinator or any of the other Underwriters, have, or will have, assisted in
the drafting of the Offer Documents or the ADS Registration Statement and that
the Offer Documents and the ADS Registration Statement may also be signed by the
Global Coordinator or any of the other Underwriters or (b) any investigation (or
any statement as to the results of any investigation) made by or on behalf of
any Underwriter or any other Indemnified Person.
(7) Limitation of Liability of Selling Shareholders. Notwithstanding anything to
the contrary, the aggregate liability of a Selling Shareholder to indemnify any
Indemnified Person shall be limited to an amount equal to the net proceeds
received by such Selling Shareholder from the sale of Firm Shares owned by such
Selling Shareholder pursuant to this Agreement.
(8) Termination of Agreement to Have No Effect on Indemnities. The foregoing
indemnities shall remain unaffected by any termination of this Agreement or the
completion of the Global Offering, as contemplated by this Agreement.
(9) Non Exclusive Remedy. The respective obligations of the Company and the
Underwriters under this Article 8 shall be in addition to any liability which
such parties may otherwise have.
ARTICLE 9
FEES; COMMISSIONS
(1) Fees and Commissions. The Selling Shareholders, severally and not jointly,
agree to pay to the Underwriters all fees, costs and expenses of the Global
Offering. The Selling Shareholders (severally and not jointly) agree to pay to
the Underwriters a commission for the Offer Shares of a percentage of 5.0% of
the Offering Price multiplied by the number of Offer Shares in consideration of
the obligations of the Underwriters to purchase the Offer Shares and in
satisfaction of all fees, costs and expenses of the Global Offering. The Company
shall not pay, nor shall the Company be liable for, any of the fees, costs and
expenses of the Global Offering.
(2) Payment. Any commissions payable pursuant to subsection (1) may, in the
discretion of the Global Coordinator, be deducted from the aggregate purchase
price for the Firm Shares payable to the Selling Shareholders pursuant to
Article 1(1).
ARTICLE 10
CONDITIONS PRECEDENT AS TO FIRM SHARES;
FORCE MAJEURE
(1) Conditions Precedent. The obligation of the Underwriters hereunder shall be
subject to the conditions that, at and as of each Closing Date:
(a) all warranties made by the Company and the Selling Shareholders are true and
correct;
(b) the Company and the Selling Shareholders shall have performed all of their
respective obligations hereunder theretobefore to be performed; (c) the Global
Coordinator, on its own behalf and on behalf of the Underwriters, shall have
received opinions, in form and substance satisfactory to the Global Coordinator,
dated each Closing Date:
(i) Haarmann, Hemmelrath & Partner, German counsel for the Company,
substantially to the effect set forth in Schedule V Part 6 hereto;
(ii) Derringer, Tessin, Herrmann and Sedemund, German counsel for the
Company, substantially to the effect set out in Schedule V Part 5 hereto;
(iii) Brobeck Hale and Dorr International, U.S. and securities counsel for
the Company, substantially to the effect set forth in Schedule V Part 1 (A) and
(B) hereto;
(iv) Bar & Karrer, Swiss counsel for the Company, substantially to the
effect set forth in Schedule V Part 2 hereto; and
(v) Shearman & Sterling, U.S. and securities counsel for the Underwriters,
substantially to the effect set forth in Schedule V Parts 2(A) and (B) hereto;
(vi) Sullivan & Cromwell, counsel to the Depositary, substantially to the
effect set out in Schedule V Part 4;
provided, that prior to delivering its opinions, counsel referred to in
subparagraph (v) shall have received such papers and information as it may
reasonably request to enable it to pass upon such matters;
(d) the Global Coordinator shall have received:
(i) a letter or letters from Arthur Andersen
Wirtschaftsprufungsgesellschaft Steuerberatungsgesellschaft mbH, dated the date
hereof to the effect set forth in Schedule IV hereto with a confirming letter
dated each Closing Date;
(ii) a certificate, substantially to the effect set forth in Schedule VI
hereto, dated each Closing Date of duly authorized officers of the Company as to
(A) the accuracy of the warranties of the Company at and as of the date of such
certificate, (B) the performance by the Company of all its obligations to be
performed hereunder at or prior to such date, (C) the filing of all Offer
Documents required to be filed under applicable law in the Federal Republic and
the United States as of the Subscription Time and (D) the absence of any
Material Adverse Change (as defined in Article 10(4) below); and
(iii) a certificate, substantially to the effect set forth in Schedule VII
hereto, dated the date of the Closing Time of the Selling Shareholders as to (A)
the accuracy of the warranties of the Selling Shareholders at and as of the date
of such certificate, and (B) the performance of the Selling Shareholders of all
their obligations to be performed hereunder.
(e) no Material Adverse Change shall have occurred.
(f) any Offer Document required to be filed under applicable law in the Federal
Republic and the United States shall have been filed with the Government
Authorities being competent under such applicable law within the applicable time
period prescribed for any such filing by such applicable law, rules and
regulations; and any action required to be taken by any such Governmental
Authority in order for such Offer Document to become effective for use in the
Global Offering shall have been taken; no stop-order or similar action by any
Government Authority suspending the effectiveness of any Offer Document or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by such Governmental Authority; all requests
for additional information on the part of any such Governmental Authority shall
have been complied with; and all other conditions required to be satisfied by
the Company, if any, shall have been satisfied;
(g) the U.S. Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations of the Act; and
(h) no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission.
(4) Material Adverse Change. If at any time after the execution and delivery of
this Agreement (A) there shall have been any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or government action, order or
decree, otherwise than is set forth or contemplated in the Offer Documents, (B)
there shall have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change or any development involving a
prospective change, in or affecting the general affairs, business, properties,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries otherwise than as set forth or contemplated in
the Offer Documents, or (C) there shall have occurred any of the following: (1)
the suspension or material limitation in trading in securities generally on the
New York Stock Exchange, NASDAQ or the Frankfurt Stock Exchange; (2) a general
moratorium on commercial banking activities declared by U.S. Federal or German
Federal banking authorities; or (3) the outbreak or escalation of hostilities
involving the Federal Republic or the United States, or the declaration by the
United States or the Federal Republic of a national emergency or war, which, in
any case described in clauses (A), (B), (C) above, is, in the reasonable
judgment of the Global Coordinator, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offer Shares or ADSs being delivered on the terms and in the manner
contemplated in the Offer Documents (a "Material Adverse Change") then the
Global Coordinator may elect to terminate this Agreement on behalf of the
Underwriters in accordance with the provisions of this Article 10.
Notwithstanding such termination, the respective indemnities of the Company, the
Selling Shareholders and the Underwriters in Article 8 of this Agreement shall
survive together with any other provisions of this Agreement that are expressed
to survive the termination hereof.
(5) Waiver. Each of the conditions set forth in this Article 10 may be waived by
the Global Coordinator; provided, that any such waiver shall be effective only
if made or confirmed in writing.
ARTICLE 11
DEFAULT BY UNDERWRITER
(1) Postponement of Firm Shares Closing. If any Underwriter shall default in its
obligation to pay the Offering Price with respect to Firm Shares which it has
agreed to purchase hereunder at the Firm Shares Closing, the Firm Shares Closing
shall be postponed to the extent, but only to the extent, necessary to give
effect to the provisions of this Article 11. In such an event the Global
Coordinator may arrange for another party or other parties to purchase such Firm
Shares on the terms contained herein. If, within 36 hours after such default by
any Underwriter, the Global Coordinator does not arrange for the purchase of
such Firm Shares, the Company shall be entitled to a further period of 36 hours,
which it may waive in its sole discretion, within which to procure another party
or other parties satisfactory to the Global Coordinator to purchase such Firm
Shares on such terms. In the event that, within the respective prescribed
periods, the Global Coordinator notifies the Company that it has so arranged for
the purchase of such Firm Shares, or the Company notifies the Global Coordinator
that it has so arranged for the purchase of such Firm Shares, the Company and
the Global Coordinator will consult with each other with a view to effecting
whatever changes may thereby be made necessary in the Offer Documents or in any
other documents or arrangements and the Global Coordinator and the Company will
determine a new Closing Date to occur not more than seven Business Days after
such notification. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Article with like effect as if such
person had originally been a party to this Agreement with respect to such Firm
Shares.
(2) Step-up.
(a) If, after giving effect to any arrangements for the purchase of the Firm
Shares of the defaulting Underwriter or Underwriters by other party or parties,
as provided in subsection (1) above, the aggregate number of such Firm Shares
for which the Offering Price has not been paid does not exceed one-eleventh of
the aggregate number of all of the Firm Shares to be purchased at the Firm
Shares Closing, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Shares which such
Underwriter agreed to purchase hereunder and, in addition, to require such
non-defaulting Underwriter to purchase its pro-rata share (based on the number
of Firm Shares which such Underwriter agreed to purchase hereunder) of the Firm
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(b) Nothing in subsection (a) above shall relieve a defaulting Underwriter from
liability for its default.
(3) Termination. If, after giving effect to any arrangements for the purchase of
Firm Shares of a defaulting Underwriter or Underwriters by another party or
other parties, as provided in subsection (1) above, the aggregate number of such
Firm Shares for which the Offering Price has not been paid exceeds one-eleventh
of all Firm Shares to be purchased at the Closing time or if the Company does
not exercise the right described in subsection (2) above to require
non-defaulting Underwriters to purchase Firm Shares of a defaulting Underwriter
or Underwriters who are members of such Regional Syndicate, then this Agreement
shall terminate, or with respect to Optional Shares, the obligation of the
Underwriters to purchase the Optional Shares, shall thereupon terminate and, in
any such case, the provisions of Article 10(5) shall apply.
Notwithstanding such termination, the obligations of the Company for expenses as
provided in Article 9(2) and the respective indemnities of the Company, the
Selling Shareholders and the Underwriters in Article 8 of this Agreement shall
survive together with any other provisions of this Agreement that are expressed
to survive the termination hereof.
ARTICLE 12
COMMUNICATIONS
(1) Language. Any document or information furnished or supplied in accordance or
in connection with this Agreement shall, if not otherwise provided for herein,
be in the English language.
(2) Form of Communications. All communications given hereunder shall be given by
letter or telefax.
(3) Addresses. Subject to written notes of change of address, all communications
hereunder shall be given to the following addresses:
(a) If to the Global Coordinator or the Underwriters, to:
Goldman, Sachs & Co. oHG
MesseTurm
Friedrich-Ebert-Anlage 49
D-60308 Frankfurt a.M.
Germany
Attn: Special Execution Group
Tel: (49)(69)7532-2028
(49)(69)7532-2800
(b) If to the Company:
iXOS Software AG
Technopark Neukerferloh
Bretonischer Ring 12
D-85630 Grasbrunn/Munchen
Germany
Attn: Vijay K. Sondhi
Tel: (49)(89)462910
Fax: (49)(89)46291598
(c) If to the Selling Shareholders:
iXOS Software AG
Technopark Neukerferloh
Bretonischer Ring 12
D-85630 Grasbrunn/Munchen
Germany
Tel: (49)(89)462910
Fax: (49)(89)46291598
(4) Authorization. The Global Coordinator shall be authorized to make or receive
any statement or declaration in connection with this Agreement in the name and
on behalf of the Underwriters. The Global Coordinator shall be released from the
restrictions set forth in Section 181 BGB (German Civil Code).
ARTICLE 13
GOVERNING LAW AND JURISDICTION
(1) Governing Law. Subject to any provisions in this Agreement explicitly
providing otherwise, this Agreement shall in all respects be governed by and
construed in accordance with German law.
(2) Place of Performance. Place of performance for the obligations for all
parties hereto shall be Frankfurt am Main.
(3) Jurisdiction. The nonexclusive place of jurisdiction for any action or other
legal proceeding arising out of or in connection with this Agreement is the
district court (Landgericht) in Frankfurt am Main.
ARTICLE 14
MISCELLANEOUS
(1) Schedules etc. All Schedules, Exhibits and Annexes hereto form an integral
part of this Agreement.
(2) Business Day. For the purposes of this Agreement, "Business Day" shall be a
day (excluding Saturdays and Sundays) on which banks are open for business
(including dealings in foreign currencies) and exchanges are open for trading in
Frankfurt am Main and New York City.
(3) Severability. Should any provision of this Agreement be or become invalid in
whole or in part, the other provisions of this Agreement shall remain in force.
Any invalid provision shall be deemed replaced by a valid provision which
accomplishes as far as legally possible the economic effects of the invalid
provision.
(4) Counterparts. Each executed counterpart shall constitute an original of one
and the same agreement.
This Agreement has been entered into on the date first above written.
iXOS SOFTWARE AG
_______________________________
Hans Strack-Zimmerman
_______________________________
Vijay K. Sondhi
SELLING SHAREHOLDERS:
_______________________________
_______________________________
By power of attorney (with no liability of
the attorney-in-fact) for the Selling Shareholders
named in Part A of Schedule A.
_______________________________
_______________________________
By power of attorney (with no liability of the
attorney-in-fact) for the Selling Shareholders
named in Part B of Schedule A.
GLOBAL COORDINATOR:
GOLDMAN, SACHS & CO. oHG
_______________________________
THE UNDERWRITERS:
(by power of attorney with no
liability of the attorney-in-fact)
GOLDMAN, SACHS & CO., oHG
DEUTSCHE BANK AKTIENGESELLSCHAFT
BT ALEX. BROWN INTERNATIONAL - A DIVISION OF BANKERS TRUST PLC
BHF-BANK AKTIENGESELLSCHAFT
GOLDMAN, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
BT ALEX. BROWN INC.
Attorney-in-fact for each of the several Underwriters
Named in Schedules I and II
Annex A
Specific Provision Regarding International Distribution
(1) (a) Each Underwriter agrees that except to the extent that the Global
Coordinator may authorize to the contrary, it will not make any offer or sale of
Offer Shares or ADSs outside of the Federal Republic and the United States of
America, its territories and possessions, any state of the United States of
America and the District of Columbia. For these purposes, an offer or sale shall
be outside the Federal Republic and the United States if it is made to (i) any
individual resident outside the Federal Republic and the United States or (ii)
any corporation, partnership, pension, profit-sharing or other trust or other
entities (including any such entity constituting an investment advisor acting
with discretionary authority) whose office most directly involved with the
purchases located is outside the Federal Republic and the United States.
(b) Each Underwriter named in Schedule II further represents and agrees that (i)
it has not offered or sold and, on or before the date that is six months after
the date of the Pricing Agreement, will not offer or sell, any Ordinary Shares
or ADSs to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied, and will comply,
with all applicable provisions of the Financial Services Act of 1986 of Great
Britain with respect to anything done by it in relation to Ordinary Shares or
ADSs in, from or otherwise involving the United Kingdom, and (iii) it has only
issued or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issuance of the Offer Shares and
the ADSs to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person whom the document may lawfully be issued or
passed on.
c) Each Underwriter named in Schedule II, to the extent that it effects trades
on the Neur Markt, represents that it has complied and will comply with the
reporting obligations of Section 9 of the German Securities Trading Act
Westpapierhandelsgesetz).
Exhibit A
Selling Shareholders
Part A
Selling Shareholder Firm Shares
Hanns-Martin Meyer 21,800
Markus Seyfried 15,000
Helmut Kalb 5,000
Klaus Simon 5,000
Hans Schlegel 10,000
Matthias Kunisch 7,000
Petr Novotny 7,000
Thomas Mohrenweis 6,500
Stephan Speth 2,000
Gunter Hahn 6,000
Ulrich Probst 6,000
Christa Gaudlitz 3,000
Peter Brunner 2,000
Walter Kohler 2,000
Claudia Traving 1,500
Lori Trippel 32,165
Timothy C. Ash 37
Kir W. Topliffe 95
Celestine Dessimoz 7
Lynn Hogg 228
SAP AG 110,000
Exhibit A
Part B
Selling Shareholder Firm Shares Optional Shares
GS Capital Partners II, L.P. 108,337 37,646
GS Capital Partners II Offshore, L.P. 43,068 14,966
Goldman, Sachs & Co. Verwaltungs GmbH 3,996 1,388
Stone Street Fund 1999, L.P. 11,623 4,039
Bridge Street Fund 1999, L.P. 5,644 1,961
Schedule 1
The U.S. Syndicate
Underwriters Number of Firm Shares to be Purchased
Goldman, Sachs & Co. 134,875
Deutsche Bank Securities Inc. 51,875
BT Alex. Brown Inc. 20,750
Total 207,500
Schedule II
The International Syndicate
Underwriters Number of Firm Shares to be Purchased
Goldman, Sachs & Co. oHG 114,125
Deutsche Bank AG 51,875
BHF-BANK AG 20,750
BT Alex. Brown International, 20,750
A division of Bankers Trust International PLC
Total 207,500
Schedule III
General Selling Terms
Each Underwriter acknowledges that no representation is made by the Company, the
Selling Shareholders, the Global Coordinator or any other Underwriter that any
action has been or will be taken in any jurisdiction other than the Federal
Republic and the United States that would permit a public offering of the Offer
Shares, or possession or distribution of the Offer Documents or any other
offering material, in any country or jurisdiction where action for that purpose
is required.
Each Underwriter will comply with all applicable securities laws and regulations
in each jurisdiction in which it purchases, offers, sells or delivers Offer
Shares or has in its possession or distributes Offer Documents or any other
offering material, in all cases at its own expense.
Schedule IV
Form of Comfort Letter of
Arthur Andersen
Wirtschaftsprufungsgesellschaft Steuerberatungsgesellschaft mbH
Pursuant to Article 10 of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
They are independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro
forma financial information) examined by them and included in the U.S.
Prospectus or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial statements
of the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the Global
Coordinator and are attached hereto;
They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed
consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the U.S. Prospectus and other Offer
Documents as indicated in their reports thereon, copies of which have been
separately furnished to the Underwriters; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to believe that
the unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most
recent fiscal years included in the Offer Documents (including the U.S.
Prospectus) agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such five
fiscal years;
They have compared the information in the U.S. Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 8 and 11 of Form 20-F and of Regulation S-K;
On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
in the Offer Document, inquires of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the U.S.
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Offer Documents (including
the U.S. Prospectus) for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Offer Documents (including the U.S. Prospectus) do not agree
with the corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial statements
included in the Offer Documents (including the U.S. Prospectus);
(C) the unaudited financial statements which were not included in the Offer
Documents (including the U.S. Prospectus) but from which were derived any
unaudited condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in the Offer
Documents (including the U.S. Prospectus) and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the audited
consolidated financial statements included in the Offer Documents (including the
U.S. Prospectus);
(D) any unaudited pro forma consolidated condensed financial statements
included in the Offer Documents (including the U.S. Prospectus) do not comply as
to form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the Share Capital (other than
issuances of Shares upon the capital increases contemplated by this Agreement or
upon exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements included
in the Offer Documents (including the U.S. Prospectus)) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or other
items specified by the Global Coordinator, or any increases in any items
specified by the Global Coordinator, in each case as compared with amounts shown
in the latest balance sheet included in the Offer Documents (including the U.S.
Prospectus), except in each case for changes, increases or decreases which the
Offer Documents (including the U.S. Prospectus) discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included in the Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating profit or the total
or per share amounts of consolidated net income or other items specified by the
Global Coordinator, or any increases in any items specified by the Global
Coordinator, in each case as compared with the comparable period of the
preceding year and which any other period of corresponding length specified by
the Global Coordinator, except in each case for decreases or increases which the
Offer Documents (including the U.S. Prospectus) discloses have occurred or may
occur or which are described in such letter; and
In addition to the examination referred to in their report(s) included in
the Offer Documents (including the U.S. Prospectus) and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Global Coordinator, which are derived
from the general accounting records of the Company and its subsidiaries, which
appear in the Offer Documents (including the U.S. Prospectus), or in Part II of,
or in exhibits and schedules to, the Registration Statement specified by the
Global Coordinator, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
Schedule V
Forms of Legal Opinions
Part 1
Legal Opinions of Brobeck Hale and Dorr
April 30, 1999
(A) Legal Opinion at Closing
(i) Insofar as New York law is concerned, the Underwriting Agreement has been
duly authorized, executed and delivered by the Company.
(ii) (a) The governing law clause, subjecting the Underwriting Agreement to the
laws of Germany, is valid under the laws of
the State of New York.
(b) Under the laws of the State of New York, the laws of Germany will be
applied to an agreement such as the Underwriting Agreement which under the laws
of the State of New York has been validly subjected to the laws of Germany,
except to the extent that any term of such agreement or any provision of the
laws of Germany applicable to such agreement violates an important public policy
of the State of New York.
(c) None of the terms of the Underwriting Agreement violates an important
public policy of the State of New York.
(iii) Upon due issuance by the Depositary of the ADRs evidencing ADSs against
the deposit of Offer Shares in respect thereof in accordance with the provisions
of the Deposit Agreement and due execution by one of the Depositary's authorized
officers, the ADRs evidencing such ADSs will be duly and validly issued and the
persons in whose names such ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement.
(iv) The issue and sale of the ADSs, the deposit of Offer Shares with the
Depositary against issuance of the ADRs evidencing the ADSs, and compliance by
the Company with all of the provisions of the Underwriting Agreement and
consummation of the transactions therein contemplated (other than the company's
indemnification and contribution obligations) will not result in any violation
of the provisions of any statute or any order, rule or regulation know to us of
any United States Federal and New York governmental authority having
jurisdiction over the Company or any of its subsidiaries or any of its
properties.
(v) To the best of our knowledge and insofar as New York or United States
federal law is concerned there are, except as set forth in the Offer Documents,
no legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any of their properties is the subject
which, if determined adversely to the Company or such subsidiary, would
individually or in the aggregate have a material adverse effect on the current
or future consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and, to the
best of our knowledge, no such proceedings are threatened or contemplated by any
governmental authority or threatened by others.
(vi) No governmental authorization of the United States or the State of New York
is required for the sale of the Offer Shares and the ADSs or the consummation by
the Company of the transactions contemplated by the Underwriting Agreement,
except a registration under the Securities Act of the Offer Shares and ADSs, and
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Offer Shares and ADSs by the Underwriters or
such as have been obtained.
(vii) The statements set forth in the Offer Documents under the captions
"Description of American Depositary Shares", "Taxation of U.S. Investors" and
"Underwriting", insofar as such statements purport to summarize the respective
legal issues or agreements or other documents or the federal laws of the United
States referred to therein, fairly summarize such issues, agreements, documents
and laws and are accurate, complete and fair in all material respects.
(viii) Each of the Registration Statement and the U.S. Prospectus and any
amendments and supplements thereto (other than the financial statements and
related notes, the financial statement schedule and other financial data
included or incorporated by reference therein or omitted therefrom as to which
we have not been requested to express an opinion) complies to form in all
material respects to the requirements of the Securities Act and the rules and
regulations of the Commission thereunder.
(ix) Each of the Registration Statement and the U.S. Prospectus and any
amendments and supplements thereto and the filing thereof with the Commission
have been duly authorized by and on behalf of the Company and have been duly
executed pursuant to such authorization by the Company.
(x) Based solely upon telephonic confirmation from the Commission, each of the
Registration Statement and the ADS Registration Statement is effective under the
Act, and, to the best of our knowledge, no stop order with respect thereto has
been issued, and no proceedings for such purpose have been instituted or are
pending or threatened by the Commission; and no stop order with respect to any
Offer Document in preliminary form has been issued by the Commission.
(xi) No registration of the Company as an "investment company" under the U.S.
Investment Company Act of 1940, as amended, is required for, or will be required
as a consequence of, the offer and sale of the Offer Shares or the issuance,
subscription, offer and sale of the ADSs in the manner contemplated by the
Underwriting Agreement and the Offer Documents.
(B) Disclosure Opinion at Closing
Although we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offer Documents and ADS Registration
Statement, except for those in the Offer Documents under the captions
"Description of American Depositary Shares", "Taxation of U.S. Investors" and
"Underwriting", insofar as such statements purport to summarize the respective
legal issues or agreements or other documents or the federal laws of the United
States referred to therein, we have no reason to believe that the Offer
Documents and the ADS Registration Statement (other than the financial
statements and related notes, the financial statement schedules and other
financial data included or incorporated by reference therein or omitted
therefrom as to which we have not been requested to express an opinion) contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein and necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Part 2
Legal Opinion of Bar & Karrer
Part 3
Legal Opinions of Shearman & Sterling
(A) Legal Opinion at Closing (as to New York and United States federal law)
(i) The Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
(ii) (a) The governing law clause, subjecting the Underwriting Agreement to the
laws of Germany, is valid under the laws of the State of New York.
(b) Under the laws of the State of New York, the laws of Germany will be applied
to an agreement such as the Underwriting Agreement, which under the laws of the
State of New York has been validly subjected to the laws of Germany, except to
the extent that any term of such agreement or any provision of the laws of
Germany applicable to such agreement violates an important public policy of the
State of New York.
(c) None of the terms of the Underwriting Agreement violates an important public
policy of the State of New York.
(iii) The Deposit Agreement has been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery of the Deposit Agreement
by the Depositary and that each of the Depositary and the Company has full
power, authority, and legal right to enter into and perform its obligations
thereunder, constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating or affecting
creditors' rights generally and to general principles of equity; and the
statements set forth under the heading "Description of American Depositary
Shares" in the Offer Documents, insofar as such statements purport to summarize
certain provisions of the Deposit Agreement, fairly summarize, in all material
respect, such provisions;
(iv) The statements set forth in the Prospectus under the headings, "Taxation of
U.S. Investors", and "Underwriting" insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair.
B) Disclosure Opinion at Closing
Although we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offer Documents and the ADS
Registration Statement, except for those in the U.S. Prospectus under the
captions "Description of American Depositary Shares", "Taxation of U.S.
Investors", and "Underwriting", insofar as they purport to constitute a summary
of the respective issues and insofar as they relate to matters of U.S. law or
regulations or the provisions of documents therein described, we have no reason
to believe that the Offer Documents (other than the financial statements and
related schedules therein, as to which we have not been requested to express an
opinion) contain an untrue statement of material of fact or omit to state a
material fact required to be stated therein and necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Part 4
Legal Opinion of Counsel for Depositary
(i) The Deposit Agreement has been duly authorized, executed and delivered by
the Depositary and constitutes a valid and legally binding obligation of the
Depositary, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and
The ADRs issued under and in accordance with the provisions of the Deposit
Agreement to evidence ADSs will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement assuming that (A) the Shares
represented by the ADSs which are in turn evidenced by the ADRs have been duly
authorized and validly issued and are fully paid and non-assessable and that any
preemptive rights with respect to the Shares have been validly waived or
exercised and (B) such Shares have been duly deposited with The Bank of New York
as Custodian, in each case under and in accordance with all applicable laws and
regulations;
Part 5
Legal Opinion of Derringer, Tessin, Herrmann & Sedemund
Part 6
Legal Opinion of Haarmann, Hemmelrath & Partner
Schedule VI
Form of Officers' Certificate
Reference is made to the Global Underwriting Agreement (the "Underwriting
Agreement") dated _______________________ among iXOS Software AG (the
"Company"), the selling shareholders named in Exhibit A thereto, and Goldman,
Sachs & Co. oHG and the several other underwriters named in Schedules I and II
thereto. All capitalized terms used but not otherwise defined herein shall have
the respective meanings given such terms in the Underwriting Agreement.
The undersigned, acting as officers of the Company, do hereby certify that:
(i) The warranties and undertakings of the Company contained in the Underwriting
Agreement are true and correct as though expressly made at and as of the date
hereof;
(ii) The Company has complied with all agreements or undertakings contained in
the Underwriting Agreement and satisfied all obligations and conditions to be
performed or satisfied by the Company under the Underwriting Agreement at or
prior to the date hereof;
(iii) The Company has filed all Offer Documents required to be filed under
applicable law in the Federal Republic and the United States at or prior to the
date hereof; and
(iv) Since ___________, there has not been any Material Adverse Change.
This Officers' Certificate may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned, having been duly authorized and empowered
on behalf of the Company, have executed this certificate as of the _________ day
of May, 1999.
____________________________
Hans Strack-Zimmerman
Speaker
____________________________
Vijay K. Sondhi
Chief Financial Officer
Schedule VII
Form of Selling Shareholder's Certificate
Reference is made to the Global Underwriting Agreement (the "Underwriting
Agreement") dated ______________ among iXOS Software AG, the selling
shareholders named in Exhibit A thereto (the "Selling Shareholders"), and
Goldman, Sachs & Co. oHG and the several other underwriters named in Schedules I
and II thereto. Capitalized terms used but not otherwise defined herein shall
have the respective meanings given such terms in the Underwriting Agreement.
The undersigned, a Selling Shareholder, does hereby certify that:
(i) The warranties and undertakings of the undersigned contained in the
Underwriting Agreement are true and correct as though expressly made at and as
of the date hereof; and
(ii) The undersigned has complied with all agreements or undertakings contained
in the Underwriting Agreement and satisfied all obligations and conditions which
are required to be performed or satisfied by the undersigned under the
Underwriting Agreement at or prior to the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
________ day of May, 1999.
__________________________
[Name of Selling Shareholder]
<PAGE>
Exibit (99.2)
IRREVOCABLE POWER OF ATTORNEY AND CUSTODY AGREEMENT
Eberhard Farber
Hans W. Strack-Zimmermann
Vijay K. Sondhi
As Attorneys-in-Fact
iXOS Software AG
Bretonischer Ring 12
D-85630 Grassbrun/Munich
Federal Republic of Germany
iXOS Software AG
As Custodian
(as above)
Dear Sirs:
The undersigned stockholder(s) of iXOS Software AG, a corporation organized
under the laws of the Federal Republic of Germany (the "Company"), contemplates
that the undersigned and certain other stockholders of the Company (the
undersigned and such other stockholders being hereinafter collectively called
the "Selling Stockholders") will sell issued and outstanding shares of the
Company's Ordinary Shares (no par value) ("Ordinary Shares"), to certain
underwriters (the "Underwriters"), pursuant to the Underwriting Agreement
referred to below, in connection with a registered public offering of the
Company's Ordinary Shares (the "Offering"). The undersigned also understands
that on or about March 16, 1999, the Company has confidentially filed with the
Securities and Exchange Commission (the "Commission") a Registration Statement
on Form F-1 (the "Registration Statement") to register the shares of Ordinary
Shares to be sold by the Selling Stockholders in the Offering under the
Securities Act of 1933, as amended (the "Securities Act").
The undersigned, by executing and delivering this Irrevocable Power of Attorney
and Custody Agreement (the "Agreement"), confirms the undersigned's willingness
to sell the aggregate minimum and maximum number of shares of Ordinary Shares
within the price range set forth next to the undersigned's name on Appendix A
(or such other lesser number of shares of Ordinary Shares, as determined by the
Attorneys-in Fact in accordance herewith) (collectively, the "Shares") to the
Underwriters and to deposit such Shares with the Company, acting in its capacity
as Custodian hereunder (the "Custodian"), all as hereinafter provided.
The undersigned hereby acknowledges receipt of (i) a draft of an underwriting
agreement dated April 19, 1999 (the "Underwriting Agreement"), among the
Company, the Selling Stockholders (some of whom will be acting by their
attorneys-in-fact) and the Underwriters relating to the Offering of Ordinary
Shares to be purchased by the Underwriters from the Selling Stockholders and
(ii) a conformed copy (without exhibits) of the Registration Statement and all
amendments thereto through the date of execution hereof. The undersigned
understands that the Underwriting Agreement is subject to revisions before
execution, with such changes as the Attorneys-in-Fact, or any one of them,
referred to below deem appropriate (including with respect to the number of
Ordinary Shares to be sold), and that the Registration Statement has not yet
become effective under the Securities Act and is subject to amendment.
To induce the Underwriters to enter into the Underwriting Agreement with the
Company and the Selling Stockholders and to secure their performance, the
undersigned agrees, for the benefit of the other Selling Stockholders, the
Underwriters and the Company, as follows:
(1) Appointment of Attorneys-in-Fact, Grant of Authority. For purposes of
effecting the sale of the Shares pursuant to the Underwriting Agreement, the
undersigned hereby irrevocably makes, constitutes and appoints Eberhard Farber,
Hans W. Strack-Zimmermann and Vijay K. Sondhi, and each of them, the true and
lawful agents and attorneys-in-fact of the undersigned (each, an
"Attorney-in-Fact" and, collectively, the "Attorneys-in-Fact"), each with full
power and authority (except as provided below) to act hereunder, individually,
collectively, or through duly appointed successor attorneys-in-fact, in his or
their sole discretion (it being understood and agreed that the Attorneys-in-Fact
may, unless otherwise specified herein, act individually and, where collective
action is specified, act collectively by and through the joint action of each of
them, and that each of them may duly appoint successor attorneys-in-fact and
delegate to them any and all of their powers hereunder), all as hereinafter
provided, in the name of and for and on behalf of the undersigned, as fully as
could the undersigned if present and acting in person, with respect to all
matters in connection with the execution and delivery of the Underwriting
Agreement and the registration and sale of the Shares in the Offering including,
but not limited to, the power and authority to:
(a) authorize and direct the Custodian and any other person or entity to take
any and all actions as may be necessary or deemed to be advisable by the
Attorneys-in-Fact or any of them to effect the sale, transfer and disposition of
the undersigned's Shares in, and in connection with, the Offering (including
without limitation to determine the number of Shares of the undersigned to be
sold (which may differ from the amount set forth in the drafts of the
Registration Statement and Underwriting Agreement reviewed by the undersigned)
and the price at which such Shares will be sold to the Underwriters), on such
terms and conditions, except as set forth below, as the Attorneys-in-Fact or any
of them may, in their sole discretion, determine;
(b) execute and deliver the Underwriting Agreement, substantially in the form of
the draft dated April 19, 1999 with such changes therein as the
Attorneys-in-Fact or any of them, in their sole discretion may determine, the
execution and delivery of such Underwriting Agreement by any Attorneys-in-Fact
to be conclusive evidence with respect to their approval thereof, and carry out
and comply with each and all of the provisions of the Underwriting Agreement;
(c) arrange for, prepare or cause to be prepared an amendment or amendments to
the Registration Statement and take all actions as may be necessary or deemed to
be desirable with respect to the Registration Statement, including, without
limitation, the execution, acknowledgment and delivery of all such certificates,
reports, assurances, documents, letters and consents, as may be necessary or
deemed to be desirable in connection therewith, and execute, acknowledge and
deliver any and all certificates, assurances, reports, documents, letters and
consents to the Commission, appropriate authorities of states or other
jurisdictions, the Underwriters or legal counsel, which may be required or
appropriate in connection with the registration of the Shares under the
Securities Act or the securities or blue sky laws of the various states and
jurisdictions or to facilitate sales of the Shares including, but not limited to
(i) a request for acceleration of the effective date of the Registration
Statement and (ii) any representations to the Commission necessary to facilitate
effectiveness of the Registration Statement;
(d) retain legal counsel, as appropriate, in connection with any and all matters
referred to herein (which counsel may, but need not, be counsel for the Company)
to represent the Selling Stockholders in connection with the transactions
referred to in the Underwriting Agreement and this Agreement;
(e) agree with the Company and the other Selling Stockholders upon the
allocation of the expenses of the Offering, and upon the mutual indemnification
of the Company, the Underwriters and the Selling Stockholders, including the
undersigned and the Attorneys-in-Fact (it being understood and agreed that the
Attorneys-in-Fact or any of them may be Selling Stockholders in the Offering) as
set forth in the Underwriting Agreement, this Agreement or in any other
agreement or instrument;
(f) instruct Goldman Sachs & Co. oHG to deliver the Shares by book entry
transfer in DBC to (i) deposit accounts with DBC as specified by each
Underwriter, (ii) an account specified by Morgan Trust Guaranty Trust Company of
New York, Brussels, as operator of the Euroclear system, (iii) an account
specified by Cedel Bank, societe anonyme, or (iv) an account with DBC specified
by the Custodian on behalf of the appropriate depositary, to be settled by the
depositary in the form of ADSs through the facilities of The Depositary Trust
Company, in each case in such amount as Goldman Sachs & Co. oHG may designate;
(g) take or cause to be taken any and all further actions, and execute and
deliver, or cause to be executed and delivered, any and all such agreements
(including, but not limited to, the Underwriting Agreement and any and all
documents, instruments and certificates as may be necessary or deemed to be
advisable in connection therewith), instruments, documents, certificates and
share powers, with such changes as the Attorneys-in-Fact or any of them may, in
their sole discretion, approve (such approval to be evidenced by their signature
thereon) as may be necessary or deemed to be desirable by the Attorneys-in-Fact
or any of them to effectuate, implement and otherwise carry out the transactions
contemplated by the Underwriting Agreement and this Agreement, or as may be
necessary or deemed to be desirable in connection with the registration of the
Shares pursuant to the Securities Act or the sale of the Shares to the
Underwriters;
provided, however, that the Attorneys-in-Fact shall act collectively insofar as
their actions shall concern (i) the determination of the number of Shares to be
sold by Selling Stockholders in the Offering, (ii) the determination of or any
change in or modification of any material terms and conditions of the Offering,
including, but not limited to, any determination with respect to the pricing,
timing or provision of indemnification in connection with the Offering, (iii)
determinations with respect to any allocation of Shares to be sold by Selling
Stockholders in the Offering, (iv) the retention of counsel and (v) allocation
of any expenses to Selling Stockholders; provided further, however, that actions
with respect to (iii) or (v) may not be made in any manner other than ratably
based on the relative number of Shares set forth with respect to the Selling
Stockholders on Appendix A without the prior consent of each of the Selling
Stockholders. The Attorneys-in-Fact shall treat equitably all Selling
Stockholders for whom the Attorneys-in-Fact are acting.
(2) Irrevocability. The undersigned has conferred and granted the power of
attorney and all other authority contained herein in consideration of the
Company's, the other Selling Stockholders' and the Underwriters' proceeding
with, and for the purpose of completing, the transactions contemplated by the
Underwriting Agreement. Therefore, the undersigned hereby agrees that all power
and authority hereby conferred is coupled with an interest and is irrevocable;
and to the fullest extent not prohibited by law shall not be terminated by any
act of the undersigned or by operation of law or by the occurrence of any event
whatsoever, including without limitation, the death, incapacity, dissolution,
liquidation, termination, bankruptcy, dissolution of marital relationship or
insolvency of the undersigned or any similar event. If, after the execution of
this Agreement, any such event shall occur before the completion of the
transactions contemplated by the Underwriting Agreement and this Agreement, the
Attorneys-in-Fact and the Custodian are nevertheless authorized and directed to
complete all of such transactions, including the delivery of the certificates
for the Shares to be sold to the Underwriters, as if such event had not occurred
and regardless of notice thereof.
(3) Deposit and Delivery of Shares. The undersigned hereby (a) appoints the
Company as Custodian to hold the Shares and to dispose of them in accordance
with the instructions of the Attorneys-in-Fact or any of them and as set forth
herein, with full power in the name of, and for and on behalf of, the
undersigned, (b) authorizes and directs the Custodian to deliver to Goldman
Sachs & Co. oHG, by book entry transfer in DBC as specified in (1)(f) above,
such Shares as may be designated in written instructions from the
Attorneys-in-Fact at the Closing Time referred to in the Underwriting Agreement
against receipt of payment (payable to the Custodian) therefor, and authorizes
and directs the Attorneys-in-Fact and the Custodian to issue appropriate
receipts to the Underwriters, for the full amount of net proceeds, in the name
of the undersigned as payee.
(4) The Custodian. The Custodian's execution of this Agreement shall constitute
the acceptance by the Custodian of the agency herein conferred, and shall
evidence its agreement to carry out and perform its duties under this Agreement
in accordance with the provisions hereof, subject, however, to the following
terms and conditions, which all parties hereto agree shall govern and control
the rights, duties and immunities of the Custodian:
(a) The Custodian shall have no duties except those expressly set forth herein
and shall not be liable except for commission of gross negligence or willful
misconduct in the performance of such duties of the Custodian as are
specifically set out herein. The Custodian shall not be responsible for the
performance of the powers of attorney contained herein by any party hereto, or
for the interpretation of any of the provisions of such powers of attorney, or
for the failure or inability of any other party hereto, or anyone else, to
deliver moneys or certificates for Ordinary Shares or other property to it or
otherwise to honor any provision hereof.
(b) If a controversy arises between two or more of the parties hereto, or
between any of the parties hereto and any person not a party hereto, as to
whether or not or to whom the Custodian shall deliver the certificates for the
Shares or any funds held by it, or as to any other matter arising out of or
relating hereto or to the property held by it hereunder, the Custodian shall not
be required to determine the same and need not make any delivery of the property
or any portion thereof but may retain it until the rights of the parties to the
dispute shall have finally been determined by agreement or by final order of a
court of competent jurisdiction, provided, however, that the time for appeal for
any such final order shall have expired without an appeal having been made. The
Custodian shall deliver the property or any portion thereof within 15 days after
it has received written notice of any such agreement or final order (accompanied
by an affidavit that the time for appeal has expired without an appeal having
been made). The Custodian shall be entitled to assume that no such controversy
has arisen unless it has received a written notice that such a controversy has
arisen which refers specifically to this Agreement and identifies by name and
address the adverse claimants to the controversy.
(c) The Custodian will acknowledge in writing receipt by physical delivery of
any certificates representing any Shares when such certificates are received.
(5) Representations, Warranties and Agreements. The undersigned represents,
warrants and agrees that:
(a) All authorizations and consents, including, but not limited to, any releases
necessary for the execution, delivery and performance by the undersigned of this
Agreement and for the sale and delivery of the Shares to the Underwriters have
been obtained and are in full force and effect, and the undersigned has full
right, power and authority to enter into and perform the Underwriting Agreement
and this Agreement and to sell, transfer and deliver the Shares to the
Underwriters. This Agreement, upon execution and delivery by the undersigned,
and the Underwriting Agreement, upon execution and delivery by the undersigned
or on behalf of the undersigned by one or more of the Attorneys-in-Fact, will
constitute valid and binding agreements of the undersigned in accordance with
their respective terms.
(b) The undersigned has read the draft of the Underwriting Agreement referred to
above and understands the same, and agrees that the representations and
warranties ascribed to the undersigned as set forth in Article 6B of the
Underwriting Agreement are incorporated by reference herein, are true and
correct on the date hereof and will be true and correct on the Closing Date with
respect to the Offering, and authorizes the Attorneys-in-Fact, acting on behalf
of the undersigned, to confirm the truth and accuracy of such representations
and warranties in connection with the consummation or implementation of the
transactions contemplated by the Underwriting Agreement and this Agreement. The
undersigned acknowledges that the representations, warranties and obligations
made or undertaken by the undersigned herein shall survive the conclusion of the
Offering and are in addition to, and not in limitation of, the representations,
warranties and obligations made or undertaken, or to be made or undertaken, on
the part of the undersigned in the Underwriting Agreement, as the same may be
executed, delivered and amended.
(c) The undersigned has not taken and will not take, directly or indirectly, any
action intended to constitute or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Ordinary Shares, and, to assure compliance with Regulation M
under the Securities Exchange Act of 1934, the undersigned will not make bids
for or purchases of, or induce bids for or purchases of, directly or indirectly,
any shares of Ordinary Shares until the distribution of all Shares being sold in
the Offering has been completed; the undersigned has not and will not distribute
any prospectus or other offering material in connection with the Offering and
sale of the Shares other than the then current prospectus filed with the
Commission or other material permitted by the Securities Act.
(d) The foregoing representations, warranties and agreements are for the benefit
of and may be relied upon by the Attorneys-in-Fact, the Company, the other
Selling Stockholders, the Underwriters and their respective legal counsel. The
undersigned agrees that the representations, warranties and agreements herein
contained shall also be true and correct and in full force and effect on the
effective date of the Registration Statement and the Closing Date referred to in
the Underwriting Agreement. The undersigned will immediately notify the
Attorneys-in-Fact and the Company of any default under or breach of this
Agreement (or of any event which, with notice or the lapse of time or both,
would constitute such a default or breach), and in the event any representation
or warranty contained herein shall not be true or correct; provided, however,
that nothing contained herein shall in any way affect the obligations of the
undersigned hereunder and under the Underwriting Agreement to maintain such
representations and warranties as true and correct and in full force and effect
through the Closing Date.
(e) The undersigned acknowledges that the success of the Offering is largely
dependent upon factors not within the Company's control, such as participation
and cooperation by other Selling Stockholders, market conditions, Securities and
Exchange Commission and Blue Sky matters, and other factors within the
discretion of the Underwriters. It is therefore understood that the Company
shall not be obligated to complete the Offering, except under such circumstances
as the Company deems appropriate and desirable, and the Company shall not be
liable to the undersigned for any failure to complete the Offering. This
Agreement will terminate in the event that the Closing Date does not occur on or
prior to November, 1999, unless this Agreement is extended by the parties hereto
in writing.
(6) Payment. The undersigned hereby authorizes and directs the Attorneys-in-Fact
or any of them to take such action as may be required to provide for the
distribution to the undersigned of the proceeds of the Offering (net of the
reserve for undersigned's share of expenses of the Offering as described below)
owing to the undersigned in connection therewith, such payment to be made in
same day funds or such other manner as the Attorneys-in-Fact or any of them
shall determine.
Before remitting any proceeds of the sale of the Shares to the undersigned, the
Attorneys-in-Fact are authorized and empowered to reserve from the proceeds
allocable to the undersigned in respect of Shares sold by the undersigned an
amount determined by the Attorneys-in-Fact to be sufficient to pay the
undersigned's share of all expenses of the Selling Stockholders. The Selling
Stockholders' expenses shall include those items of expense set forth in Article
10 of the Underwriting Agreement and such other expenses as the
Attorneys-in-Fact deem reasonable, and the Attorneys-in-Fact are authorized to
pay such expenses from the amount reserved for such purpose. After payment of
any such expenses from the reserve, the Attorneys-in-Fact will prepare a written
itemization of the expenses and remit to the undersigned his proportionate share
of the balance, as well as the itemization. To the extent expenses exceed the
amount reserved, the Selling Stockholders shall remain liable for their
proportionate share of such expenses.
(7) Ownership of Stock. Subject to the terms hereof, until payment of the
purchase price for the Shares being sold by the undersigned pursuant to the
Underwriting Agreement has been made by or for the account of the Underwriters,
the undersigned shall remain the owner of the Shares and shall have all rights
thereto, including the right to receive all dividends and distributions thereon,
which are not inconsistent with this Agreement. However, until such payment in
full has been made or until the Underwriting Agreement has been terminated, the
undersigned agrees that the undersigned will not give, sell, pledge,
hypothecate, grant any lien on or security interest in, transfer, deal with or
contract with respect to the Shares or any interest therein, except to the
Underwriters pursuant to the Underwriting Agreement.
(8) Release. The undersigned hereby agrees to release the Attorneys-in-Fact and
each of them and the Custodian from any and all liabilities, joint or several,
to which they may become subject insofar as such liabilities (or action in
respect thereof) arise out of or are based upon any action taken or omitted to
be taken by the Attorneys-in-Fact or the Custodian pursuant hereto, except if
such liabilities shall result from the bad faith or gross negligence of the
Attorneys-in-Fact or the Custodian. This paragraph shall survive termination of
this Agreement.
The undersigned hereby agrees to release the Attorneys-in-Fact and each of them
and the Custodian from any and all restrictions and liabilities under Section
181 of the German Civil Code. This paragraph shall survive termination of this
Agreement.
(9) Termination. If the Underwriting Agreement shall not be entered into on
behalf of the undersigned, or if it shall not become effective pursuant to its
terms, or if it shall be terminated pursuant to its terms, or if the Shares
agreed to be sold as contemplated by the Underwriting Agreement are not
purchased and paid for by the Underwriters on or before __ November , 1999, then
after such date the undersigned shall have the power, on written notice to each
of the Attorneys-in-Fact and the Custodian, to terminate this Agreement,
subject, however, (i) to Section 8 hereof, (ii) to the payment of all expenses
incurred by or on behalf of the undersigned and (iii) to all lawful action of
the Attorneys-in-Fact and the Custodian done or performed pursuant hereto prior
to actual receipt of such notice, and thereafter the Attorneys-in-Fact and the
Custodian shall have no further responsibilities or liabilities to the
undersigned except to redeliver to the undersigned the Shares held in custody by
book entry or otherwise.
(10) Notices. Any notice required to be given pursuant to this Agreement shall
be deemed given if in writing and delivered in person, or if given by telephone
or telegraph if subsequently confirmed by letter, (i) to Eberhard Farber, Hans
W. Strack-Zimmerman and Vijay K. Sondhi, as Attorneys-in-Fact, c/o iXOS
Software AG, as Custodian, Bretonischer Ring 12, D-85630 Grassbrun/Munich,
Federal Republic of Germany, or to such other address as the Custodian shall
have specified in a written notice duly given to the undersigned, or (iii) to
the undersigned at the address set forth in the Company's records.
(11) Applicable Law. This Agreement shall be governed by the laws of the State
of New York, and this Agreement shall inure to the benefit of, and shall be
binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
(12) Counterparts. This Agreement may be signed in any number of counterparts,
each executed counterpart constituting an original but all together constituting
only one instrument.
This Irrevocable Power of Attorney and Custody Agreement shall be effective as
of _________, ___.
Very truly yours,
Name: ________________________ (signature)
When signing as an officer of
a corporation, partner of a
partnership, trustee of a trust,
guardian of a minor child, or
Custodian under the Uniform
Gift to Minors Act, please
indicate title as such and
provide documentary evidence
of the authority of person
signing.
For certificates held by joint
tenants or as community property,
all named holders must sign.
Notarization required for individuals only:
STATE OF
COUNTY OF
Before me, a notary public, personally appeared the above named
___________________, who acknowledged that he/she did sign the foregoing
instrument, and that the same is his/her free act and deed.
In testimony whereof, I have hereunto affixed my name and official seal at
________________ _________ this __ day of __________, ___.
___________________________
Notary Public
Eberhard Farber hereby accepts the appointment as Attorney-in-Fact pursuant to
the foregoing Irrevocable Power of Attorney and Custody Agreement, and agrees to
abide by and act in accordance with the terms of said agreement.
Dated: __________, ____
Hans W. Strack-Zimmermann hereby accepts the appointment as Attorney-in-Fact
pursuant to the foregoing Irrevocable Power of Attorney and Custody Agreement,
and agrees to abide by and act in accordance with the terms of said agreement.
Dated: __________, ____
Vijay K. Sondhi hereby accepts the appointment as Attorney-in-Fact pursuant to
the foregoing Irrevocable Power of Attorney and Custody Agreement, and agrees to
abide by and act in accordance with the terms of said agreement.
Dated: __________, ____
iXOS Software AG hereby agrees to act as Custodian pursuant to the foregoing
Irrevocable Power of Attorney and Custody Agreement, and agrees to abide by and
act in accordance with the terms of said agreement.
Dated: ___________, ____
iXOS SOFTWARE AG
By:
APPENDIX A
Please insert your name and the minimum and maximum number of shares that you
hereby agree to sell within the price range set forth below:
Name of Shareholder Minimum Maximum
No. of Shares No. of Shares Price Range *
180 - 280
* Based on the average price for ordinary shares and American Depositary Shares
on the Neuer Markt and the Nasdaq Stock Market on April 16, 1999.
<PAGE>
Exibit (99.3)
IXOS SOFTWARE AKTIENGESELLSCHAFT
LOCK-UP AGREEMENT
Goldman, Sachs & Co. oHG
Messe Turm
Friedrich-Ebert-Anlage 49
D-60308 Frankfurt am Main
Germany
iXOS Software AG
Technopark Neukeferioh
Bretonischer Ring 12
D-85630 Grasbrunn/Munchen
Germany
Ladies and Gentlemen:
The undersigned officer, director or beneficial owner of securities of iXOS
Software AG, a stock corporation organised under the laws of the Federal
Republic of Germany (the "Company"), acknowledges that a global offering (the
"Offering") of bearer ordinary shares, no par value (the "Shares") by certain
shareholders is currently being prepared, underwritten pursuant to a global
underwriting agreement (the "Underwriting Agreement") by Goldman Sachs & Co.
oHG, as global coordinator (the "Global Coordinator"), and the several other
underwriters named therein (collectively with the Global Coordinator, the
"Underwriters").
The undersigned recognizes that it is in the best financial interest of the
undersigned, as an officer, director or beneficial owner of securities of the
Company, that the Offering be completed, and you have requested this agreement
to facilitate the Offering.
In connection therewith, the undersigned hereby agrees that during the period
beginning on the date of and continuing to and including the date 90 days after
the pricing of the Offering, the undersigned will not (i) offer, sell, contract
to sell or otherwise dispose of, or enter into any transaction (including a
derivative transaction) having an economic effect similar to that of a sale of,
any Shares or any other securities of the Company which are substantially
similar to the Shares or which are convertible or exchangeable into, or which
represent the right to receive, Shares or securities which are substantially
similar to the Shares, except as provided hereunder, or (ii) engage directly or
indirectly in any transaction the likely result of which would involve a
transaction prohibited by clause (i) of this sentence, except for the Shares
offered in connection with the Offering.
The undersigned further represents and agrees that the undersigned has not taken
and will not take, directly or indirectly, any action which is designed to or
which is constituted or which might reasonably be expected to cause or result in
stabilisation or manipulation of the price of the Shares to facilitate the sale
or resale of the Shares.
Notwithstanding the foregoing restrictions on transfer, the undersigned shall be
permitted to make transfers with the prior written consent of the Global
Coordinator or pursuant to the Underwriting Agreement.
Notwithstanding anything herein to the contrary, Goldman, Sachs & Co. and its
affiliates (including the Global Coordinator) may engage in brokerage,
investment advisory, investment company, financial advisory, anti-raid advisory,
financing, asset management, trading, market making, arbitrage and other similar
activities conducted in the ordinary course of their business.
This agreement shall terminate 90 days after the pricing of the Offering or if
the Underwriting Agreement (other than the provisions thereof that survive
termination) shall terminate or be terminated prior to payment for the delivery
of the shares thereunder or if the Offering is not completed by August 31, 1999.
The Global Coordinator and the Company will send written confirmation to the
undersigned when this agreement has terminated.
Sincerely yours,
By:
Name:
Title:
Date signed: 1999
<PAGE>
Exibit (99.4)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 21, 1998.
GOLDMAN, SACHS & CO.
By: The Goldman, Sachs & Co. L.L.C.
By:/s/ Robert J. Katz
- ---------------------------------
Name: Robert J. Katz
Title: Executive Vice President
<PAGE>
Exibit (99.5)
POWER OF ATTORNEY
This power of attorney will expire on May 31, 2001.
KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of May 7, 1999.
THE GOLDMAN SACHS GROUP, INC.
By:/s/ Robert J. Katz
- ---------------------------------
Name: Robert J. Katz
Title: Executive Vice President and General Counsel
<PAGE>
Exibit (99.6)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II, L.P. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 31, 1998.
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.
By: GS Advisors, Inc.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.7)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II OFFSHORE,
L.P. (the "Company") does hereby make, constitute and appoint each of Hans L.
Reich and Roger S. Begelman, acting individually, its true and lawful attorney,
to execute and deliver in its name and on its behalf whether the Company is
acting individually or as representative of others, any and all filings required
to be made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 28, 1998.
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (CAYMAN), L.P.
By: GS Advisors II, Inc.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.8)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS II (GERMANY)
CIVIL LAW PARTNERSHIP (the "Company") does hereby make, constitute and appoint
each of Hans L. Reich and Roger S. Begelman, acting individually, its true and
lawful attorney, to execute and deliver in its name and on its behalf whether
the Company is acting individually or as representative of others, any and all
filings required to be made by the Company under the Securities Exchange Act of
1934, as amended, giving and granting unto each said attorney-in-fact power and
authority to act in the premises as fully and to all intents and purposes as the
Company might or could do if personally present by one of its authorized
signatories, hereby ratifying and confirming all that said attorney-in-fact
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 21, 1998.
GS CAPITAL PARTNERS II (GERMANY) CIVIL LAW PARTNERSHIP
By: The Goldman Sachs Group, L.P.
By: The Goldman Sachs Corporation
By:/s/ Robert J. Katz
- ---------------------------------
Name: Robert J. Katz
Title: Executive Vice President
<PAGE>
Exibit (99.9)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS, L.P. (the "Company")
does hereby make, constitute and appoint each of Hans L. Reich and Roger S.
Begelman, acting individually, its true and lawful attorney, to execute and
deliver in its name and on its behalf whether the Company is acting individually
or as representative of others, any and all filings required to be made by the
Company under the Securities Exchange Act of 1934, as amended, giving and
granting unto each said attorney-in-fact power and authority to act in the
premises as fully and to all intents and purposes as the Company might or could
do if personally present by one of its authorized signatories, hereby ratifying
and confirming all that said attorney-in-fact shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 28, 1998.
GS ADVISORS, L.P.
By: GS Advisors, Inc.
By:/s/ Kaca B. Enquist
- ---------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.10)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS II (CAYMAN), L.P. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 28, 1998.
GS ADVISORS II (CAYMAN), L.P.
By: GS Advisors II, Inc.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.11)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2001.
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. oHG, (the
"Company") does hereby make, constitute and appoint each of Hans-Linhard Reich
and Roger S. Begelman, acting individually, its true and lawful attorney, to
execute and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of May 26, 1999.
GOLDMAN, SACHS & CO. oHG
By:/s/ Andreas Kornlein By:/s/ Sabine Mock
- --------------------------------- ---------------------------------
Name: Andreas Kornlein Name: Sabine Mock
<PAGE>
Exibit (99.12)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET FUND 1997, L.P. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 28, 1998.
STONE STREET FUND 1997, L.P.
By: Stone Street Asset Corp.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.13)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that BRIDGE STREET FUND 1997, L.P. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 28, 1998.
BRIDGE STREET FUND 1997, L.P.
By: STONE STREET ASSET CORP.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
<PAGE>
Exibit (99.14)
POWER OF ATTORNEY
This power of attorney will expire on December 31, 2000.
KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET ASSET CORP. (the
"Company") does hereby make, constitute and appoint each of Hans L. Reich and
Roger S. Begelman, acting individually, its true and lawful attorney, to execute
and deliver in its name and on its behalf whether the Company is acting
individually or as representative of others, any and all filings required to be
made by the Company under the Securities Exchange Act of 1934, as amended,
giving and granting unto each said attorney-in-fact power and authority to act
in the premises as fully and to all intents and purposes as the Company might or
could do if personally present by one of its authorized signatories, hereby
ratifying and confirming all that said attorney-in-fact shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as
of December 21, 1998.
STONE STREET ASSET CORP.
By:/s/ Kaca B. Enquist
- ---------------------------------
Name: Kaca B. Enquist
Title: Vice President
