EXHIBIT 10.10
SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is entered into as of March 28, 1996 between:
- ACTUATE SOFTWARE CORPORATION, a corporation existing under the laws of the
State of California, having its principal office at 000 Xxxxx Xxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000, X.X.X. ("ACTUATE");
AND
- XXXXXXXX VENTURES FRENCH ENTERPRISE FUND L.P.1, a limited partnership
organized under the laws of the State of Delaware (U.S.A.), having its principal
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 ("SVFEF US"),
- XXXXXXXX VENTURES FRENCH ENTERPRISE FUND UKLP, a limited partnership organized
under the laws of England, having its principal office at 000 Xxxxxxxxx, Xxxxxx
XX0X 0XX ("SVFEF UK"),
- SUK VFIV NOMINEES LIMITED, as nominee for Xxxxxxxx U.K. Venture Fund IV LP 1,
Xxxxxxxx U.K. Venture Fund IV LP 2, and Xxxxxxxx U.K. Venture Fund IV Trust, a
Guernsey limited liability company, having its principal office at X.X. Xxx 00,
Xxxxxx Xxxxx, Xx. Julians Avenue, St. Xxxxx Port, Guernsey, Channel Islands
("SUK VFIV"),
- Xxxxxxx XXXXXX, an English national, residing at 00 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxx XX0 X0 XX ("XXXXXX"),
- Xxxxxx XXXXXX, an American national, residing at 00, xxx Xxxxxxxx, 00000
Xxxxxxx, Xxxxxx ("BRAUDE"),
- Xxxxxxx XXXXXXXXXXX, a French national, residing at 00 xxx xx Xxxxxxxxxx
Xxxxx, 00000 Xxxxxxxxxxxx, Xxxxxx ("CHANCERELLE"), and
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- Xxxxxx XXXXXXX, a French national, residing at 0, xxx Xxxxxx Xxxxxxx, 00000
Xxxxx, Xxxxxx ("VLIEGEN"),
(SVFEF US, SVFEF UK, SUK VFIV, BERMAN, BRAUDE, CHANCERELLE and VLIEGEN are
collectively referred to as the "SHAREHOLDERS");
AND
- TELEPHUS VASTGOED B.V., a Dutch Besloten Vennootschap, existing under the laws
of the Netherlands, having its principal office at Xx Xxxxxxxxx 0, 0000 XX
Xxxxxxxxx, xxx Xxxxxxxxxxx (the "B.V.").
WHEREAS, the Shareholders will become the shareholders of the B.V., which will
hold all or virtually all of the shares of operating companies to be formed in
France and England (collectively, the "Operating Companies") for the purpose of
producing, marketing, selling and supporting ACTUATE software products under
license from ACTUATE; and
WHEREAS, the Shareholders agree that ACTUATE shall have a right of first
refusal to purchase the shares of the B.V. on the terms and conditions specified
herein.
NOW, THEREFORE, the parties hereto agree as follows:
A. ACTUATE B.V.
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1. ACTUATE B.V.
------------
The B.V. holding company shall be called "Actuate B.V." and it shall hold
all, or virtually all, of the shares of each Operating Company.
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2. THE SHAREHOLDERS
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Each Shareholder signs this Agreement individually, and there shall be no
joint and several liability or entitlement among the Shareholders.
3. THE BASIC AGREEMENT
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ACTUATE and Actuate B.V. shall enter into a basic agreement, dated the same
date as this Agreement, relating to the formation and operations of the
Operating Companies, a copy of which is attached as ANNEX 1 (the "Basic
Agreement"). Unless otherwise defined herein, the terms used herein shall have
the same meaning as in the Basic Agreement, but the Basic Agreement shall not be
considered as a part of this Agreement.
B. THE SALE OF THE SHARES OF ACTUATE B.V.
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1. GENERAL
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1.1 Except as otherwise provided herein, if the Shareholders desire to
sell any of the shares of Actuate B.V., then ACTUATE shall have the right of
first refusal with respect to such shares, as further provided in this Section
B; provided, however, that any transfer of shares of Actuate B.V. among the
Shareholders, to any entities advised, owned or managed by the Xxxxxxxx group or
to any new manager which is added to the management group of BERMAN, BRAUDE,
CHANCERELLE and VLIEGEN shall be excluded from the scope of this Agreement
(collectively, "Internal Transfers").
1.2 The Shareholders agree that they shall consult with ACTUATE in
relation to any Internal Transfers of Shares, in order to try to take into
account the impact of pooling of interest accounting principles; provided,
however, that Shareholders shall be under no obligation to modify any Internal
Transfer.
1.3 The Shareholders agree that no one Shareholder shall hold at any time
more than 50% of the shares of Actuate B.V.
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1.4 The Shareholders may at any time notify ACTUATE of their decision to
sell all of the shares of Actuate B.V. (the "Shares" and the "Shareholders'
Notice"), and ACTUATE shall notify the Shareholders within five days of the
Shareholders' Notice whether it shall exercise its right of first refusal to
purchase the Shares, at a purchase price equal to the consolidated net asset
value of Actuate B.V. as of the end of the month preceding the Shareholders
Notice. If ACTUATE 'decides to purchase the Shares, it shall pay such purchase
price to the Shareholders in cash within 30 days of the Shareholders Notice.
However, if the conditions of either Sections B.2.1 or B.4.1 have occurred, then
any purchase of the Shares shall be made pursuant to the terms of those sections
(including but not limited to the determination of the Purchase Price), and this
Section B.1.3 shall become inapplicable to the sale.
2. ACTUATE BECOMES A PUBLICLY HELD COMPANY
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2.1 If ACTUATE becomes a publicly held company, either through the
offering of the shares of common stock of ACTUATE on a recognized U.S. stock
exchange or through the acquisition of ACTUATE by, or its merger with, such a
publicly quoted company, then at any time after the expiration of six months
from the date of such event, the Shareholders may notify ACTUATE of their desire
to sell the Shares, and ACTUATE shall notify the Shareholders within five days
of the Shareholders' Notice whether it shall exercise its right of first refusal
to purchase the Shares.
2.2 If ACTUATE notifies its decision to purchase the Shares, then it
shall, within 30 days of Shareholders' Notice, either: (i) pay the full Purchase
Price for the Shares (as defined in Section B.2.3 below) in cash by wire
transfer of funds to the xxxx accounts indicated by the Shareholders; or (ii)
deliver a written irrevocable commitment to pay the Purchase Price by the
delivery of shares of common stock of ACTUATE or its successor in accordance
with Section B.2.5 below, and to carry out all formalities necessary for such
delivery as expeditiously as possible, but in no event to exceed three months
from the Shareholders' Notice. The date of payment in cash, or the date of the
delivery of the share certificates is referred to as the "Purchase Completion
Date".
2.3 The "Purchase Price" for the Shares is to be determined the basis of
on the last full month prior to the date of the Shareholders' Notice. The
"Purchase Price" is defined as the sum of:
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(i) the consolidated revenues of Actuate B.V. during the 12-month period
ending with the last full month prior to the Shareholders' Notice,
which revenues shall include service revenues, of each Operating
Company; provided, however, that service revenues, other than
support, hotline and maintenance revenues, which exceed 15% of the
total revenues of any Operating Company shall be excluded;
(ii) the consolidated net assets of Actuate B.V. as of the end of such
month;
(iii) in the event that ACTUATE has signed software license agreements
with any party other than value-added resellers (as defined in the
license agreement to be entered into between ACTUATE and each
Operating Company (the "License Agreement")) for the sale of software
products in the Territory of any Operating Company, then one of the
following amounts:
- If ACTUATE's remuneration from such an agreement is on a lump sum
basis, the amount equal to that portion of such lump sum which is
allocated or allocable to operations in the Territory of any
Operating Company for the period of twelve full calendar months
immediately preceding the Shareholders' Notice; or
--
- If ACTUATE's remuneration is on a unit sale basis, 50% of the
revenues received by ACTUATE from sales of the software products in
the Territory of any Operating Company during the period of twelve
full calendar months immediately preceding the Shareholders' Notice;
and
(iv) an amount equal to the outstanding balances of the Shareholders'
loans which amount shall be used to reimburse such loans so that at
the Purchase Completion Date there will be no outstanding
Shareholders' loans.
2.4 The Purchase Price shall be calculated and paid by ACTUATE in U.S.
dollars at the exchange rates between the currencies of the Operating Companies,
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Actuate B.V. and the U.S. dollar quoted in the Wall Street Journal in Paris for
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the last business day of the month preceding the Shareholders' Notice.
2.5 If ACTUATE is publicly held at the date of the Shareholders' Notice,
then ACTUATE, at its sole option, may indicate in its notice to purchase the
Shares that it will pay the Purchase Price by delivery of registered shares of
common stock of ACTUATE (or of the public company which acquires or merges with
it). The parties agree that such shares of stock will be subject to the minimum
restrictions on transferability allowable in accordance with applicable U.S. and
state securities laws and pooling of interest accounting principles, and Actuate
agrees to keep current the registration of its shares. The number of shares of
stock so delivered to the Shareholders shall be determined on the basis of the
average closing price of such shares over the five consecutive trading days
immediately preceding the Shareholders' Notice.
3. NON-EXERCISE OF ACTUATE'S RIGHT OF FIRST REFUSAL
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If at any time ACTUATE elects not to exercise its right of first refusal
following Shareholders' Notice given under Section 2.1, 4.1 or 5.2 hereof, or it
does not respond to the Shareholders' Notice within the contractual periods
specified therein, or it fails to pay the full Purchase Price for the Shares
within the time period specified therein, then the following shall occur
automatically, without the need for further notice, as of the expiration of the
applicable period:
(i) The Royalty Rate (as defined in Section 3.g of the Basic Agreement
and as further detailed in each License Agreement) applicable to the
sale of the ACTUATE software products by each Operating Company shall
be reduced to zero;
(ii) The license granted pursuant to each License Agreement between
ACTUATE and an Operating Company to produce, market, sell and support
the Products shall be converted to an exclusive, perpetual license;
(iii) Any requirements in the License Agreements which relate to minimum
staffing levels for the Operating Companies shall terminate;
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(iv) The Shareholders shall have the right to sell any or all of the
Shares of Actuate B.V. to a third party, and Actuate B.V. shall have
the right to sell any or all of the shares which it holds in any
Operating Company to a third party;
(v) ACTUATE shall no longer have the right of first refusal for the
purchase of the Shares as defined in Section B.1.1, nor the right to
increase the Royalty Rate as specified in Section B.5 below;
(vi) Each Operating Company shall have the right to deal in and distribute
products other than those produced by ACTUATE, without obtaining the
latter's written approval, and shall not be obligated to continue to
sell ACTUATE software products.
(vii) ACTUATE shall pay to Actuate B.V. 100% of any revenues received by it
from the sales of any of its software products installed in the
Territory of any Operating Company, and ACTUATE shall not enter into
any new agreements or arrangements for the sale of any of its
software products in such Territories.
The parties agree that the provisions of this Section B.3 which pertain to the
License Agreement shall be included as specific provisions in each License
Agreement.
4. ACTUATE IS NOT PUBLICLY HELD
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4.1 Upon the occurrence of one of the following:
(i) 1 January 2001;
(ii) A change in the shareholding of ACTUATE, with the result that more
than 50% of the shares of common stock of ACTUATE, on a fully
converted basis, are held by shareholders who are not shareholders of
ACTUATE on the date hereof;
then the Shareholders may at any time notify ACTUATE of their decision to sell
the Shares, and ACTUATE shall notify the Shareholders within five days of the
Shareholders' Notice whether it shall exercise its right of first refusal to
purchase all
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of the Shares. If ACTUATE decides to purchase the Shares, it shall pay the
Purchase Price as defined in Sections B.2.3 and B.2.4 above in cash pursuant to
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one of the following procedures, at its sole election: (i) payment of the full
Purchase Price within 30 days of Shareholders' Notice; or (ii) partial monthly
payments out of the royalty revenues received by it from the Operating Companies
as provided in Section B.4.2 below, provided, however, that all such amounts
which are not paid within 30 days of the Shareholders' Notice shall be subject
to interest at the rate of 20% per annum (to the extent permitted by law). The
parties agree that ACTUATE may pay the totality of any unpaid balance of the
Purchase Price at any time.
4.2 Payment of the Purchase Price in partial monthly payments shall be
made as follows: On a monthly basis one-half of the royalties due to ACTUATE
pursuant to Section 3.g of the Basic Agreement, less one-half of the revenues
received by ACTUATE from the sales of any of its products in the respective
Territory of any Operating Company, shall be paid to ACTUATE. The remainder of
the royalties not paid to Actuate shall be paid into an escrow account and
disbursed on ACTUATE's behalf to the Shareholders as part of the Purchase Price.
In no event shall the total of the payments received by the Shareholders in any
one month exceed 100% of the royalties for such month. ACTUATE hereby gives an
irrevocable delegation and authorization to each of the Operating Companies to
pay such royalties as indicated in this paragraph.
4.3 If ACTUATE elects not to purchase the Shares, then the provisions of
Section B.3 shall apply.
5. ACTUATE'S RIGHT TO INCREASE THE ROYALTY RATE
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5.1 ACTUATE shall have the right to increase the Royalty Rate as defined
in Section 3.g of the Basic Agreement from 50% to 100% and to terminate the
exclusivity provisions related to the sale of ACTUATE software products as
described in Section 3.a of the Basic Agreement, upon notice to the
Shareholders.
5.2 Within five days of ACTUATE's notice to the Shareholders of the
exercise of its rights under Section B.5.1, the Shareholders may give written
notice to ACTUATE of their intention to sell all of the Shares of Actuate B.V.,
and within five days of Shareholders' Notice, ACTUATE shall notify Shareholders
whether it shall exercise its right of first refusal to purchase all of the
Shares at the Purchase Price
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specified in Section B.5.3 below. If ACTUATE elects to purchase the Shares, then
the provisions of Section B.2.4 and B.2.5 shall apply thereto. If ACTUATE elects
not to purchase the Shares, then the provisions of Section B.3 above shall
apply, and the right to increase the Royalty Rate and to terminate the
exclusivity provisions under Section B.5.1 shall terminate, without the
implementation of the terms thereof.
5.3 If ACTUATE elects to purchase the Shares, then the Purchase Price of
the Shares shall be determined as follows:
(i) Until 1 July 1999, and provided that the provisions of Section
B.5.3.(iii) are not applicable, the Purchase Price shall be equal to
the greater of: (i) the Purchase Price as calculated in Section B.2.3
above; or (ii) the amount equal to five times the "Investment" in the
Actuate project. Such "Investment" is defined as the total of (I) the
equity capital of Actuate B.V.; and (II) the consolidated shareholder
loans made to the Operating Companies and Actuate B.V. by the
Shareholders.
(ii) After 1 July 1999, and provided that the provisions of Section
B.5.3.(iii) are not applicable, then the Purchase Price shall be
calculated in accordance with Section B.2.3 above.
(iii) If any royalties due under Section 3.g of the Basic Agreement have
ever remained unpaid for more than three consecutive months, then the
Purchase Price shall be equal to 80% of the Purchase Price as defined
in Section B.2.3 above. In return, ACTUATE agrees not to put the
Operating Company which has defaulted on the royalty payments into
bankruptcy, receivership or other similar proceedings.
C. MISCELLANEOUS
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1. TERM
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This Agreement shall continue in full force and effect until December 31,
2002, unless automatically terminated upon the occurrence of any of the
following events: (i) ACTUATE has purchased all of the shares of Actuate B.V.,
or (ii) ACTUATE or Actuate B.V. files, or has filed against it, any bankruptcy,
reorganization or other
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similar proceedings; provided however that Sections B.2.2, B.2.3, B.2.5, B.3 and
B.4 hereof shall survive the termination of this Agreement.
2. DISSOLUTION OF ACTUATE B.V.
--------------------------
Unless such procedure would violate the provisions of applicable law, the
Shareholders, if they desire to dissolve Actuate B.V., shall first notify their
intention to ACTUATE, which may within five days of the receipt of such notice,
notify the Shareholders of its decision to purchase all the shares of Actuate
B.V. for $1.00, payment to be made within ten days thereafter. Failing such
notice from ACTUATE or payment of the purchase price within the specified
periods, then the Shareholders shall be entitled to dissolve Actuate B.V. as
they choose.
3. CONFIDENTIALITY
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Except as otherwise required by applicable law, each party shall keep
strictly confidential all documents, data and information obtained during the
term of this Agreement.
4. ENTIRE AGREEMENT; MODIFICATIONS
-------------------------------
4.1. This Agreement constitutes the entire agreement of the parties and
supersedes and annuls all prior agreements or understandings with respect to the
subject matter hereof, whether written or oral, including but not limited to
drafts of the letter of intent; provided, however, that the Basic Agreement
shall not be affected hereby.
4.2. No part of this Agreement may be modified, amended or waived except in
writing signed by all parties.
5. SEVERABILITY
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If any provision of this Agreement proves to be invalid or otherwise
unenforceable, the remainder of this Agreement shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
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6. ASSIGNMENT
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Neither this Agreement nor any right or obligation hereunder may be
assigned or delegated, except that any of the Shareholders may assign this
Agreement to any of the other Shareholders, to any other entity advised, managed
or owned by the Xxxxxxxx group, or to any new "manager". This Agreement shall be
binding on, and inure to the benefit of, any permitted successors and assigns of
any party, provided that any new "manager" signs this Agreement.
7. NOTICES
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Any notice or other communication hereunder shall be deemed given when sent
by registered mail, return receipt requested, by courier or by telefax to the
other parties as the address indicated above or as otherwise notified. All
parties agree to send a copy of any notice hereunder, for information purposes
only, to Xxxxxxxx Venture Advisors, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx X0XX 0XX
(attn: partnership secretary).
8. DISPUTES; GOVERNING LAW
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8.1 Any disputes arising between the parties concerning the determination
of the amount of the royalties or of the Purchase Price shall be referred to and
finally settled by one of the major international accounting firms, which is not
the customary accountant or auditor of any of the parties, to be mutually
determined by the parties within five days of notice sent by any of them. The
accounting firm selected shall have the right to audit accounts, if necessary,
and shall present its written report to the parties within 45 days of receipt of
its mission. During such period the obligation to pay the disputed royalty or
Purchase Price shall be suspended. The expenses of such expert shall be shared
equally between ACTUATE and the Shareholders.
8.2 This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Netherlands, and Amsterdam district courts shall
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have exclusive jurisdiction over any disputes arising in connection with this
Agreement, other than disputes covered by Section 8.1.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date written above.
XXXXXXXX VENTURES FRENCH ACTUATE SOFTWARE
ENTERPRISE FUND L.P.1 CORPORATION
By: /s/ Xxxx X'Xxxxxx By: /s/ Xxxx Xxxxxxxxxx, CEO
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Xxxx X'Xxxxxx Xxxx Xxxxxxxxxx, CEO
XXXXXXXX VENTURES FRENCH TELEPHUS VASTGOED B.V.
ENTERPRISE FUND UKLP
By: /s/ Xxxx X'Xxxxxx By: [SIGNATURE ILLEGIBLE]
----------------------- ------------------------
Xxxx X'Xxxxxx
SUK VFIV NOMINEES LIMITED
By: /s/ Xxxx X'Xxxxxx
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Xxxx X'Xxxxxx
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
---------------------------
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
---------------------------
XXXXXXX XXXXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxxxx
---------------------------
XXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxx
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LIST OF ANNEXES
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ANNEX 1 - Basic Agreement between ACTUATE and Actuate B.V.
AMENDMENT No 1
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TO
--
SHARE PURCHASE AGREEMENT
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THIS AMENDMENT to the Share Purchase Agreement is entered into as of 25
September 1997 among the following parties:
XXXXXXXX VENTURES FRENCH ENTERPRISE FUND L.P.1, a Delaware limited
partnership, having its principal office at 000 Xxxxxxx Xxxxxx, xxx-Xxxx, X.X.
00000 ("SVFEF US");
XXXXXXXX VENTURES FRENCH ENTERPRISE FUND UKLP, and English limited
partnership, having its principal office at 000 Xxxxxxxxx, Xxxxxx XX0X 0XX
("SVFEF UK"),
SUK VFIV NOMINEES LIMITED (as nominee for Xxxxxxxx U.K. Venture Fund IV LP1,
Xxxxxxxx U.K. Venture Fund IV LP2 and Xxxxxxxx U.K. Venture Fund Trust), a
Guernsey limited liability company, having its principal office at X.X. Xxx
00, Xxxxxx Xxxxx, Xx. Julian's Avenue, St. Xxxxx Port, Guernsey, Channel
island ("SUK VFIV"),
Xxxxxxx XXXXXX, an English national, residing at 00, Xxxxxxxx Xxxxxxx, Xxxxxx
XX0X 0XX, Xxxxxx Xxxxxxx ("XXXXXX"),
Xxxxxx XXXXXX, an American national, residing at 00, xxx Xxxxxxxx, 00000
Xxxxxxx Xxx Xxxxx, Xxxxxx ("BRAUDE "),
Xxxxxxx XXXXXXXXXXX, a French national, residing at 00, xxx xx Xxxxxxxxxx
Xxxxx, 00000 Xxxxxxxxxxxx, Xxxxxx ("CHANCERELLE"), and
Xxxxxx XXXXXXX, a French national, residing at 0, xxx Xxxxxx Xxxxxxx, 00000
Xxxxx, Xxxxxx ("VLIEGEN"),
(SVFEF, SVFEF UK, SUK VFIV, Berman, Braude, Chancerelle and Vliegen are
collectively referred to as "SHAREHOLDERS);
AND
ACTUATE HOLDING B.V., a Dutch Besloten Vennootschap, having its principal
office Xx Xxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("Actuate B.V."),
AND
ACTUATE SOFTWARE CORPORATION, a California corporation, having its principal
office at 000 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Actuate").
(Shareholders, Actuate B.V., and Actuate are collectively referred to as the
"Parties");
WHEREAS, the Parties entered into the Share Purchase Agreement as of March 28,
1996 (the "AGREEMENT"), concerning the terms and conditions applicable to the
sale of the shares of Actuate B.V. to Actuate;
Whereas, the Parties desire to make certain modifications to tile Agreement in
connection with the addition of a fifth member of the management group and the
formation of a German Operating Company.
NOW, THEREFORE, the Parties agrees as follows:
1. ADDITION OF XXXXXXX
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1.1 The Parties agree that Mr. Xxxxxx Xxxxxxx ("XXXXXXX") shall become a new
manager added to the management group of Berman, Braude, Chancerelle and
Vliegen within the terms of Section B.1.1. of the Agreement. As from the
effective date defined in Section 1.2, Xxxxxxx shall become a Shareholder
and a Party to the Agreement and of this Amendment No l.
1.2 This Amendment No 1 shall come into effect upon the later to occur of (i)
Xxxxxxx'x signature of the acceptance letter substantially in the form of
Annex 1 hereto, and (ii) the registration of the four notarial deeds to
transfer four class B shares of Actuate B.V. to Xxxxxxx.
2. GERMAN OPERATING COMPANY
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The Parties agree that Actuate B.V. shall form an operating company in Germany
(the "German Operating Company"). Due to the fact that the German Operating
Company will be formed significantly after the French and English operating
companies, the Parties agree that the valuation rules for purposes of
determining the Purchase Price of the Shares of Actuate B.V. (as those terms are
defined in the Agreement) shall be modified. The following shall therefore be
added as sections B.2.3 (v), B.2.3(vi), B.2.3(vii) to the section B.2.3. of the
Agreement.
B.2.3 (v). in the event that the Shareholders' Notice of their decision to
sell all the shares of ACTUATE B.V. is given pursuant to section B.5.2,
between 1 July 1999 and 31 December 1999, an amount equal to the "German
Investment". The German Investment is defined as the total of (i) the
equity capital of the German Operating Company; and (ii) the outstanding
loans made by ACTUATE B.V. to the German Operating Company, provided that
Shareholders will limit their investment in Germany to what is needed for
working capital purposes. It is agreed between Actuate and Actuate B.V.
that should the German investment exceed U.S $1.500.000, Actuate in no
event shall be required to pay more than U.S $ 1.500.000 under this section
B.2.3(v).
B.2.3 (vi). in the event that the Shareholders' Notice of their decision to
sell all the shares of ACTUATE B.V. is given because of the acquisition of
ACTUATE by, or its merger with, a publicly quoted company, pursuant to
sections B.2.1 and B.2.2 between 1 July 1999 and 17 July 1999, an amount
equal to the "German Investment", as defined in section B.2.3 (v), provided
that Shareholders will limit their investment in Germany to what is needed
for working capital purposes. It is agreed between Actuate and Actuate B.V.
that should the German investment exceed U.S $1.500.000, Actuate in no
event shall be required to pay more than U.S $1.500.000 under this section
B.2.3(vi).
B.2.3 (vii). in the event that the Shareholders' Notice of their decision
to sell all the shares of ACTUATE B.V. is given because of the acquisition
of ACTUATE by, or its merger with, a
publicly quoted company, pursuant to sections B.2.1 and B.2.2, between 1
October 1999 and 16 October 1999, an amount equal to 2/3 (two thirds) of the
"German Investment", as defined in section B.2.3 (v), provided that
Shareholders will limit their investment in Germany to what is needed for
working capital purposes. It is agreed between Actuate and Actuate B.V. that
should the German investment exceed U.S $ 1.500.000, Actuate in no event shall
be required to pay . more than U.S $1.000.000 under this section B.2.3(vii).
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of
the date written above.
XXXXXXXX VENTURES FRENCH XXXXXXX XXXXXX
ENTERPRISE FUND LP1
By: /s/ Xxxxxxxx Ventures Managers Inc /s/ X.X. Xxxxxx
---------------------------------- -----------------------
XXXXXXXX VENTURES FRENCH XXXXXX XXXXXX
ENTERPRISE FUND UKLP
By: /s/ Xxxxxxxx Ventures Holdings Limited /s/ Xxxxxx Xxxxxx
------------------------------------- -----------------------
SUK VFIV NOMINEES LTD XXXXXXX XXXXXXXXXXX
By:[SIGNATURE ILLEGIBLE] /s/ Xxxxxxx Xxxxxxxxxxx
------------------- -----------------------
ACTUATE HOLDING B.V. XXXXXX XXXXXXX
By: /s/ X.X. Xxxxxx /s/ Xxxxx Xxxxxxx
------------------- -----------------------
ACTUATE SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
------------------------
Xxxx Xxxxxxxxxx, CEO
BASIC AGREEMENT
---------------
THIS AGREEMENT is entered into as of March 28, 1996 between:
- ACTUATE SOFTWARE CORPORATION, a corporation existing under the laws of the
State of California, having its principal office at 000 Xxxxx Xxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000, X.X.X. ("ACTUATE");
AND
- TELEPHUS VASTGOED B.V., a Dutch Besloten Vennootschap, existing under the
laws of the Netherlands, having its principal office at Xx Xxxxxxxxx 0, 0000
XX Xxxxxxxxx, the Netherlands (the "B.V.").
WHEREAS, the B.V. intends to form operating companies in France and England
(collectively, the "Operating Companies") for the purpose of producing,
marketing, selling and supporting ACTUATE software products; and
WHEREAS, ACTUATE agrees to grant to each Operating Company a license to
produce, commercialize, sell and support ACTUATE products;
NOW, THEREFORE, the parties hereto agree as follows:
1. THE FRENCH OPERATING COMPANY
----------------------------
A. The B.V. shall cause to be formed and managed a French societe anonyme
(a limited liability company) called Actuate France (the "Company"), all of
whose shares shall be held by the B.V., except as otherwise required by French
law and except for a maximum of up to 10% of the shares which may be reserved
for the local manager of the Company: The purpose of the Company shall be the
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production, marketing, sales and support of the ACTUATE software products (the
"Products") in France, Belgium and the French-speaking part of Switzerland
(collectively, the ,Territory"). The Company shall handle only ACTUATE products
except as otherwise authorized by ACTUATE in writing, or as otherwise provided
herein.
B. The B.V. shall provide access to up to U.S. $ 700,000 of funding to the
extent required by the Company. The B.V. may provide additional funding at its
discretion.
2. FORMATION OF OTHER EUROPEAN OPERATING COMPANIES
-----------------------------------------------
A. ACTUATE grants to the B.V. an exclusive option, which shall be valid
for a period of six months from the date hereof, to form an Operating Company in
the U.K. to produce, market, sell and support the Products in the U.K.
B. In the case of formation of any Operating Company pursuant to the terms
of Section 2.a., all of the terms and conditions of this Agreement shall apply
to each such Operating Company, mutatis mutandis.
3. LICENSE AGREEMENT AND ROYALTY PAYMENTS
--------------------------------------
A. Within 60 days of the signature hereof, ACTUATE and the Company shall
enter into a license agreement on terms and conditions to be mutually agreed
(the "License Agreement"), pursuant to which ACTUATE shall grant to the Company
an exclusive license to produce, market, sell and support the Products under the
name and trademark "ACTUATE" in the Territory, except for existing distribution
contracts of ACTUATE which permit sales of the Products in the Territory. A list
of such existing ACTUATE contracts is included in Annex 1. After the date
hereof, ACTUATE shall not authorize or license any other parties to make sales
of the Products in the Territory, except for other Operating Companies owned by
the B.V. and except for world-wide software licensing agreements with parties
headquartered outside the Territory, which shall have been notified to the B.V.
before their entry into effect. ACTUATE agrees not to open any local offices or
to name distributors in the Territory nor to enter into any contracts or
arrangements with general purpose distributors covering the Territory.
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B. The License Agreement shall contain provisions requiring the Company to
have minimum staffing levels, with penalties for non-compliance. In addition
ACTUATE shall have the right to terminate the License Agreement if the shares of
the B.V. are sold, unless such sale is made pursuant to the terms of the Share
Purchase Agreement between ACTUATE and the shareholders of the B.V.
C. ACTUATE shall furnish to the Company the source code and supporting
documents for each Product, in order to enable the Company to carry out its
rights under the License Agreement, subject to suitable confidentiality
restrictions.
D. ACTUATE agrees to provide to the Company all materials, processes and
supports, including but not limited to software, documentation, all Product
updates and bug fixes, on the terms described in the License Agreement.
E. The Company shall translate the Products, any subsequent releases and
updates and any related documents into French and make other "localization"
adaptations as may be necessary for the French-speaking market.
F. The Company shall furnish ACTUATE within 15 days of the end of each
calendar month, a report indicating for such month (the "Monthly Report"), the
sales of the Products and the calculation of the amount of royalty due, and
within 30 days of the end of each quarter, quarterly financial statements
presented according to U.S. GAAP and ACTUATE revenue recognition policy.
G. Within 90 days from the date of each Monthly Report, the Company shall
pay ACTUATE a royalty equal to 50% (the "Royalty Rate") of its revenues accrued
during such month from sales of the Products and associated update portion of
maintenance revenues, exclusive of VAT and other taxes, transport, and packaging
and net of refunds.
H. All royalties shall be paid in U.S. dollars, at the exchange rate
between the French franc and U.S. dollar quoted in the Wall Street Journal in
-------------------
Paris for the last business day of the month for which such royalty is due. The
Company shall be responsible for the payment of any withholding taxes imposed on
the royalties under applicable law, and the amount of such withholding tax shall
be deducted from the amount of the royalty payable to ACTUATE.
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I. Any royalty amounts which are not paid by the Company within such 90-
day period shall be subject to finance charges at a rate (to the extent
permitted by law) of 20% per annum.
4. MUTUAL INFORMATION; OPERATIONAL PLAN; BOARD OBSERVERS
-----------------------------------------------------
A. Within 30 days of the end of each calendar quarter, ACTUATE and the
Company shall each provide the other with copies of (i) their income statement,
(ii) their balance sheet, and (iii) their cash flow statement for such quarter.
B. During the last quarter of each year, ACTUATE and the Company shall
meet to discuss an operational plan for the Company, which will include revenue
and cost projections on a quarterly basis.
C. ACTUATE and the Company shall each have the right to name an observer
who may attend, but not vote at, meetings of the board of directors of the
other. Adequate notice of board meetings shall be provided to such observer.
D. ACTUATE shall notify the B.V. of any change in its shareholders, which
occurs prior to the initial public offering of the shares of ACTUATE, or its
acquisition by, or merger with, a publicly held company.
5. THE MANAGERS OF THE COMPANY
---------------------------
ACTUATE shall have a veto right over the hiring of the manager of the
Company.
6. SERVICES TO THE COMPANY
-----------------------
As further detailed in the License Agreement, ACTUATE shall furnish to the
Company the following services free of charge and shall treat the employees of
the Company on the same terms as its own employees with respect to (i) training
for the Company's employees; and (ii) marketing support. Unless otherwise
agreed, each party shall pay its own travel and lodging costs.
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7. TERM
----
A. This Agreement shall continue in full force and effect until December
31, 2002, unless automatically terminated upon the occurrence of any of the
following events: (i) ACTUATE has purchased all of the shares of the B.V., or
(ii) ACTUATE or the B.V. files, or has filed against it, any bankruptcy,
reorganization or other similar proceedings.
B. Unless such procedure would violate the provisions of applicable law,
the B.V., if it desires to dissolve any of the Operating Companies, shall first
notify its intention to ACTUATE, which may within five days of the receipt of
such notice, notify the B.V. of its decision to purchase all of the shares of
such Operating Company for $1.00, payment to be made within ten days thereafter.
Failing such notice from ACTUATE or payment of such purchase price within the
specified periods, then the B.V. shall be entitled to dissolve such Operating
Company as it chooses.
8. CONFIDENTIALITY
---------------
Except as otherwise required by applicable law, each party shall keep
strictly confidential all documents, data and information obtained during the
term of this Agreement.
9. ENTIRE AGREEMENT; MODIFICATIONS
-------------------------------
A. This Agreement constitutes the entire agreement of the parties and
supersedes and annuls all prior agreements or understandings with respect to the
subject matter hereof, whether written or oral, including but not limited to
drafts of the letter of intent. However, the parties acknowledge that ACTUATE
and the Company are currently negotiating the License Agreement, which, when
signed, shall supersede the provisions of this Agreement related thereto.
B. No part of this Agreement may be modified, amended or waived except in
writing signed by all parties.
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10. SEVERABILITY
------------
If any provision of this Agreement proves to be invalid or otherwise
unenforceable, the remainder of this Agreement shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law.
11. ASSIGNMENT
----------
Neither this Agreement nor any right or obligation hereunder may be
assigned or delegated, without the written consent of the other party.
12. NOTICES
-------
Any notice or other communication hereunder shall be deemed given when sent
by registered mail, return receipt requested, by courier or by telefax to the
other party as the address indicated above or as otherwise notified.
13. GOVERNING LAW
-------------
This Agreement shall be governed by, construed and enforced in accordance
with the laws of the Netherlands, and the Amsterdam district courts shall have
exclusive jurisdiction over any disputes arising in connection with this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date written above.
ACTUATE SOFTWARE TELEPHUS VASTGOED B.V.
CORPORATION
By: /s/ Xxxx Xxxxxxxxxx By: [SIGNATURE ILLEGIBLE]
------------------------------- -------------------------
Xxxx Xxxxxxxxxx, CEO
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LIST OF ANNEXES
---------------
ANNEX 1 List of existing ACTUATE contracts for sales of the Products in
the Territory
AMENDMENT NO. 1
---------------
TO
--
BASIC AGREEMENT
---------------
THIS AMENDMENT to the Basic Agreement is entered into as of 25 September 1997
among the following parties:
ACTUATE HOLDING B.V., a Dutch Besloten Vennootschap, having: its principal
office Xx Xxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("ACTUATE B.V."),
AND
ACTUATE SOFTWARE CORPORATION, a California corporation, having its principal
office at 000 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 ("ACTUATE").
Actuate B.V. and Actuate are collectively referred to as the "PARTIES".
WHEREAS, the Parties entered into the Basic Agreement as of March 28, 1996 (the
"AGREEMENT"), concerning the establishment of French and English operating
companies by Actuate B.V. for the purpose of commercialising Actuate Software
products (the "PRODUCTS").
WHEREAS, the Parties desire that Actuate B.V. form a new operating company in
Germany, and also desire to make other modifications to the Agreement.
NOW, THEREFORE, the Parties agrees as follows:
1. GERMAN OPERATING COMPANY
------------------------
The Parties agree that Actuate B.V. shall form an operating company in Germany
("GERMAN OPERATING COMPANY"), to produce, market, sell and support the Products
in Germany and Austria. The German Operating Company shall be subject to all of
the terms and conditions of the Agreement, mutatis mudandi.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of
the date written above.
ACTUATE HOLDING B.V. ACTUATE SOFTWARE CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------- -----------------------------
Xxxxx Xxxxxx Xxxx Xxxxxxxxxx, CEO