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Delaware
(State or other jurisdiction
of incorporation)
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000-24607
(Commission File Number)
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94-3193197
(I.R.S. Employer
Identification No.) |
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2207 Bridgepointe Parkway, San Mateo, California
(Address of principal executive offices)
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94404
(Zip Code) |
Registrant’s telephone, including area code: (650) 837-2000
(Former name and former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On
December 8, 2009, Actuate Corporation, a Delaware corporation (“Actuate”) entered into a
definitive acquisition agreement (as may be amended, modified or supplemented from time to time, the
“Acquisition Agreement”) with Xenos Group Inc., a corporation existing under the laws of the Province
of Ontario, Canada (“Xenos”). The Acquisition Agreement provides that, upon the terms and subject to
the conditions set forth therein, Actuate or one of its direct or indirect wholly-owned
subsidiaries will commence a take-over bid (the “Offer”) for all of the outstanding common shares
of Xenos (the “Common Shares”) at an offer price of CDN $3.50 per Common Share in cash.
The Offer is subject to certain customary conditions, including the valid tender to Actuate in
the Offer of at least 66 2/3% of the outstanding Common Shares, calculated on a fully-diluted
basis.
Xenos
has made customary representations, warranties and covenants in the Acquisition Agreement,
including, among others, covenants to conduct its business in the ordinary course and not to
solicit proposals relating to alternative business combination transactions or, subject to certain
exceptions, not to enter into discussions concerning, or provide information in connection with,
alternative business combination transactions.
The Acquisition Agreement contains certain termination rights for both Actuate and Xenos and
provides that, if the Acquisition Agreement is terminated under specified circumstances, Xenos may be
required to pay Actuate a termination fee of CDN $1,500,000 or may be required to make expense
reimbursement payments to Actuate of up to CDN $750,000.
In connection with the Offer, Actuate has entered into a definitive lock-up agreement (as may
be amended, modified or supplemented from time to time, the “Lock-Up Agreement”) with certain of
the directors and certain other shareholders of Xenos (the “Supporting Shareholders”) representing
approximately 48% of the outstanding Common Shares, calculated on a fully-diluted basis. The
Lock-Up Agreement provides, among other things, that upon the terms and subject to the conditions
set forth therein, the Supporting Shareholders will tender to Actuate in the Offer all of their
Common Shares.
The foregoing description of the Acquisition Agreement does not purport to be complete and is qualified
in its entirety by reference to the full text of the Acquisition Agreement. Actuate will file the
Acquisition Agreement as an exhibit to its Quarterly Report on Form 10-Q for the period ending on
December 31, 2009.
Item 7.01. Regulation FD Disclosure.
On
December 8, 2009, (a) Actuate distributed an e-mail to its employees regarding the Xenos
acquisition, including a document containing frequently asked questions related to the Xenos
acquisition, copies of which are attached hereto as Exhibits 99.1 and 99.2, respectively, and
incorporated herein by reference, (b) Xenos sent an e-mail to its employees announcing that it had
entered into the Acquisition Agreement, including a document containing frequently asked questions
related to the Xenos acquisition, copies of which are attached hereto as Exhibits 99.3 and 99.4,
respectively, and incorporated herein by reference; and (c) Actuate made available to its investors
in a conference call and on its website a slide presentation relating to the acquisition of Xenos,
including a document containing frequently asked questions related to the Xenos acquisition, copies
of which are attached hereto as Exhibits 99.5 and 99.6,
respectively, and incorporated herein by reference. Exhibits 99.1, 99.2, 99.3, 99.4, 99.5 and
99.6 are being furnished pursuant to Item 7.01 “Regulation FD Disclosure”, and shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or incorporated by reference in any filing under the Securities Act of 1933, as
amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such
a filing.
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