EXHIBIT 10(w)
AGREEMENT
Agreement made as of this 14th day of November, 1995, by and among
Interleaf, Inc., a Massachusetts corporation having its principal place of
business at Prospect Place, 9 Hillside Avenue, Waltham, Massachusetts 02154
("Interleaf"), PruTech Research and Development Partnership III, a California
Limited Partnership having its principal place of business at 440 Mission Court,
Suite 250, Fremont, California 94539 ("PruTech"), and R & D Funding Corp., a
Delaware corporation having its principal place of business at 40 Mission Court,
Suite 250, Fremont, California 94539 ("R&D").
WHEREAS, Interleaf and PruTech entered into a Joint Venture Agreement
effective as of October 21, 1988 (the "Joint Venture Agreement"), pursuant to
which the PruTech-Interleaf Joint Venture (the "Venture") was formed to develop,
manufacture and market certain Research Products (as defined in the Joint
Venture Agreement);
WHEREAS, PruTech commenced a proceeding before the American Arbitration
Association in Boston, Massachusetts on February 22, 1994 (the "Arbitration"),
seeking arbitration of certain controversies between Interleaf and PruTech and
claiming certain damages from Interleaf arising out of the transactions
contemplated by the Joint Venture Agreement;
WHEREAS, in connection with the Arbitration, Interleaf has denied any
liability to PruTech and has asserted certain counterclaims against PruTech in
its answering statement dated April 4, 1994;
WHEREAS, Interleaf and PruTech desire to provide for the purchase by
Interleaf of PruTech's interest in the Venture and the settlement of all
disputes between them.
NOW THEREFORE, in consideration of these premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. PURCHASE AND SALE OF VENTURE INTEREST.
(a) PURCHASE AND SALE. Subject to and upon the terms and conditions
of this Agreement, at the Closing (as defined in Section 1(c)), PruTech shall
sell, assign and transfer to Interleaf, and Interleaf shall purchase from
PruTech, all of PruTech's right, title and interest in and to the Venture.
(b) CONSIDERATION; PAYMENT. In consideration for PruTech's interest
in the Venture and the performance by PruTech of the other obligations set forth
herein, Interleaf shall pay to PruTech the sum of $2,100,000 (two million one
hundred thousand dollars) (the "Purchase Price"). At Interleaf's option, the
Purchase Price shall be payable in cash, by the issuance of shares of Common
Stock, $.01 par value per share, of Interleaf ("Common Stock"), or a combination
thereof, as specified in Section 1(c). All Common Stock issued by Interleaf
hereunder in payment of the Purchase Price shall be issued pursuant to the
provisions of Section 7 hereof.
(c) CLOSING; PAYMENT PROCEDURE. The closing ("Closing") of the
purchase and sale hereunder shall take place on November 14, 1995 or such other
date as PruTech and Interleaf shall mutually agree upon but in no event later
than November 30, 1995. At the Closing, Interleaf shall deliver to PruTech, or
its designee, one or more certified checks and/or one or more certificates for
shares of Common Stock, at Interleaf's option, having an aggregate value equal
to the Purchase Price. In the event that Interleaf delivers certificate(s) for
shares of Common Stock as part or all of the Purchase Price, the number of
shares of Common Stock to be conveyed to PruTech shall be determined by dividing
(i) (a) the Purchase Price, less the amount of any certified checks, multiplied
by (b) 1.05, by (ii) the average Share Price for the ten (10) trading days
immediately preceding the Closing. PruTech agrees that it shall not, without
Interleaf's consent, sell, on any single trading day, more than 50,000 shares of
Common Stock. In the event PruTech violates such daily volume limitation,
Interleaf's sole remedy shall be as set forth in Section 1(d)(3) below.
(d) ADJUSTMENT.
(1) In the event that the net cash proceeds from the sale by
PruTech of all of the shares of Common Stock delivered hereunder shall be less
than the Purchase Price minus the amount of any certified checks delivered in
payment of the Purchase Price (a "Shortfall"), PruTech shall deliver to
Interleaf a written notice identifying the amount of the Shortfall, accompanied
by copies of all confirmations from the sales of such Common Stock. Within ten
days of the delivery of such notice, Interleaf shall deliver to PruTech one or
more additional certified checks and/or one or more additional certificates
evidencing shares of Common Stock (issued pursuant to the provisions of Section
7 hereof) in an aggregate amount equal to the Shortfall. In the event that
Interleaf delivers certificate(s) for shares of Common Stock in payment of the
Shortfall, the number of shares of Common Stock to be conveyed to PruTech shall
be determined by dividing (i) (a) the amount of such Shortfall, less the amount
of any certified checks, multiplied by (b) 1.05, by (ii) the average Share Price
for the
-2-
ten (10) trading days immediately preceding the date of payment of such
Shortfall. At any time prior to the receipt by PruTech of certified checks
and/or net cash proceeds from the sale of Common Stock in the aggregate amount
of the full Purchase Price, Interleaf may, at its option, deliver to PruTech a
certified check in the amount of the remaining Purchase Price, whereupon PruTech
shall deliver to Interleaf all remaining certificates for shares of Common Stock
delivered to PruTech hereunder.
(2) In the event that the amount of net cash proceeds received
by PruTech prior to December 30, 1995 upon the sale of shares of Common Stock
delivered hereunder, together with the amount of all certified checks delivered
hereunder, exceeds the Purchase Price (a "Stock Gain"), PruTech shall, within
ten (10) days after receipt of such Stock Gain, deliver to Interleaf a certified
check in the amount of the Stock Gain together with any remaining certificates
for shares of Common Stock delivered to PruTech hereunder.
(3) Interleaf shall not be required to make the adjustment set
forth in Section 1(d)(1) above in the event that (i) PruTech violates the daily
limitation on sales of Common Stock set forth in Section 1(c) above, or (ii)
PruTech delivers written notice requesting payment under Section 1(d)(1) after
December 30, 1995. PruTech shall not be required to make the payment required
under Section 1(d)(2) for any shares of Common Stock sold after December 30,
1995.
(4) In the event that Interleaf fails to make payment as
required under Section 1(d)(1) above, PruTech may, at its option, terminate this
Agreement by delivering to Interleaf a certified check for the amount of the
certified checks, if any, delivered at the Closing and for the net proceeds from
the sale of all Common Stock received hereunder and certificate(s) evidencing
any remaining shares of Common Stock, and, thereupon, all of the rights and
releases granted hereunder shall be deemed rescinded and the rights of PruTech
under the Joint Venture Agreement shall revert to PruTech in the same manner as
existed prior to this Agreement.
(e) SHARE PRICE. As used herein, the "Share Price" on a specified
date shall be the closing price of the Common Stock in the National Market
System, as reported by NASDAQ, on such date.
2. CONSEQUENCES OF PURCHASE AND SALE; FURTHER ASSURANCES. For purposes
of the rights and obligations of Interleaf set forth in Sections 8.2(d), 9.1(c),
9.2, 11.3, 11.4 and 12.1 of the Joint Venture Agreement, the Closing of the
purchase and sale of PruTech's interest in the Venture hereunder shall be
treated as the exercise of Interleaf's purchase option (sometimes referred to in
the Joint Venture as the "Company's Buyout Option") pursuant to
-3-
Article XI of the Joint Venture Agreement (notwithstanding the terms of Section
11.1 of the Joint Venture Agreement); provided, however, that PruTech agrees and
acknowledges that, anything to the contrary in the Joint Venture Agreement
notwithstanding, upon payment in full of the Purchase Price: (i) PruTech shall
not be entitled to any distribution of assets of the Venture (pursuant to
Sections 12.2 or 12.3 of the Joint Venture Agreement or otherwise); (ii)
Interleaf shall have no obligations, and PruTech shall have no rights, under any
of the sections referred to in Section 12.4 of the Joint Venture Agreement; and
(iii) the security interest and all rights granted to PruTech pursuant to
Section 13.12 of the Joint Venture Agreement shall terminate and be of no
further force and effect. PruTech shall, as soon as practicable after the
Closing, (i) deliver to Interleaf all tangible manifestations of the Technology
(as defined in the Joint Venture Agreement) and any other proprietary
information of Interleaf in its possession, and (ii) execute and deliver to
Interleaf such financing termination statements, patent or copyright assignments
or other instruments as Interleaf may reasonably require in order to evidence
the termination of the security interests granted pursuant to Section 13.12 of
the Joint Venture Agreement.
3. DISMISSAL OF ARBITRATION PROCEEDING. PruTech shall not take any
further action with respect to the Arbitration until and unless Interleaf shall
fail to make payment of the Purchase Price as provided herein. As soon as
practicable after payment in full of the Purchase Price, PruTech shall file a
stipulation of dismissal with prejudice in the Arbitration in such form as may
be reasonably acceptable to Interleaf and take such other actions as Interleaf
may reasonably require to advise the arbitrators that the Arbitration has been
settled. Each party shall be responsible for its own fees and expenses in
connection with the Arbitration.
4. RELEASE BY PRUTECH AND R&D. Effective with the payment in full of the
Purchase Price, PruTech and R&D shall release and forever discharge Interleaf
from any and all debts, liabilities, obligations, promises, covenants,
agreements, contracts, controversies, actions, causes of action, judgments,
damages, expenses, claims and demands whatsoever, known or unknown, in law or at
equity, which PruTech or R&D had, now has or hereafter may have against
Interleaf for, or by reason of, any matter or cause whatsoever arising from or
related to the Joint Venture Agreement, the operation of the Venture or the
Arbitration, except for (i) obligations of Interleaf arising out of this
Agreement, or (ii) obligations of Interleaf arising out of Sections 11.3 or 11.4
of the Joint Venture Agreement which obligations shall survive the termination
of the Joint Venture Agreement.
5. RELEASE BY INTERLEAF. Effective with the payment in full of the
Purchase Price, Interleaf hereby releases and forever
-4-
discharges PruTech and R&D from any and all debts, liabilities, obligations,
promises, covenants, agreements, contracts, controversies, actions, causes of
action, judgments, damages, expenses, claims and demands whatsoever, known or
unknown, in law or at equity, which Interleaf had, now has or hereafter may have
against PruTech or R&D for, or by reason of, any matter or cause whatsoever
arising from or related to the Joint Venture Agreement, the operation of the
Venture or the Arbitration, except for obligations arising out of this
Agreement.
6. REPRESENTATIONS AND COVENANTS OF PRUTECH. PruTech hereby represents
and covenants to Interleaf as follows:
(a) AUTHORITY. PruTech has the full right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby.
(b) OWNERSHIP OF INTEREST IN VENTURE. PruTech has not previously
sold, transferred, assigned, pledged or otherwise disposed of any part of its
interest in the Venture, whether voluntarily or by operation of law. PruTech
has not incurred any obligations in the name of or on behalf of the Venture.
(c) ENFORCEABILITY. The Agreement has been duly executed by PruTech
and constitutes the valid and binding obligation of PruTech, enforceable against
PruTech in accordance with its terms.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement and compliance with the provisions hereof by PruTech will not, with or
without the giving of notice or the passage of time or both, (i) violate any
judgment, decree, order or award of any court, administrative agency or other
governmental body binding upon Interleaf, or (ii) conflict with or result in any
breach of any term, condition or provision of, or constitute a default under,
any agreement to which PruTech is a party.
(e) SHARES. With respect to any shares of Common Stock acquired
hereunder, (i) PruTech is acquiring such shares for its own account for
investment and not with a view to, or for sale in connection with, any
distribution in violation of the Securities Act of 1933, or any rule or
regulation thereunder, (ii) PruTech understands that the shares are "restricted
shares" within the meaning of Rule 144 under the Securities Act of 1933, and
cannot be sold, transferred or otherwise disposed of except pursuant to a
registration statement under the Securities Act of 1933 or a valid exemption
from registration.
7. REPRESENTATIONS AND COVENANTS OF INTERLEAF. Interleaf hereby
represents and covenants to PruTech as follows:
-5-
(a) AUTHORITY. Interleaf has the full right, power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
(b) AUTHORIZATION OF SHARES. All shares of Common Stock of Interleaf
to be issued to PruTech hereunder have been duly authorized for issuance and,
upon issuance pursuant to the terms hereof, will be validly issued, fully paid
and non-assessable. No stockholder of Interleaf has any pre-emptive right to
subscribe for or purchase any of such shares of Common Stock.
(c) ENFORCEABILITY. This Agreement has been duly executed by the
Interleaf and constitute the valid and binding obligation of Interleaf,
enforceable against Interleaf in accordance with its terms.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement, and compliance with the provisions hereof by Interleaf will not, with
or without the giving of notice or the passage of time or both, (i) violate any
judgment, decree, order or award of any court, administrative agency or other
governmental body binding upon Interleaf, or (ii) conflict with or result in any
breach of any term, condition or provision of, or constitute a default under,
any agreement to which Interleaf is a party.
(e) REGISTRATION. If Interleaf elects to issue shares of Common
Stock in payment of any portion of the Purchase Price, the resale of such shares
by PruTech shall be registered under the Securities Act of 1933, as amended. In
connection with any such registration, Interleaf shall deliver to PruTech at or
prior to the Closing, a currently effective prospectus relating to the shares
(the "Prospectus").
(f) NASDAQ LISTING. If Interleaf elects to issue shares of Common
Stock in payment of any portion of the Purchase Price, prior to the Closing
Interleaf shall take all actions required to cause such shares to be fully
authorized for inclusion in the NASDAQ National Market System upon official
notice of issuance. After the Closing, for so long as Interleaf shall have any
shares of its Common Stock included in the National Market System or listed for
trading on a national securities exchange, and for so long as PruTech continues
to hold any shares of Common Stock, Interleaf shall continue to take such action
as shall be required to keep the shares so included or listed for trading on a
national securities exchange.
(g) DELIVERY OF PUBLIC DOCUMENTS. Interleaf has delivered to PruTech
copies of (i) Interleaf's 1995 Annual Report to stockholders and (ii)
Interleaf's Annual Report on From 10-K
-6-
for the fiscal year ended March 31, 1995 and Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1995, as filed with the Securities and
Exchange Commission. As of the date of this Agreement, Interleaf has not filed
with the Securities and Exchange Commission any report on Form 8-K since March
31, 1995. From the date hereof through the Closing, Interleaf will
contemporaneously deliver to PruTech copies of all further filings made by
Interleaf with the Securities and Exchange Commission. All documents delivered
or to be delivered to PruTech pursuant to Section 7(g) are hereinafter referred
to as the "Public Documents".
(h) REPRESENTATIONS REGARDING PUBLIC DOCUMENTS. The Public Documents
do not and will not, and the Prospectus (if and one is delivered to PruTech)
will not, contain any misstatement of a material fact or omit to state any fact
necessary to make the statements therein, in light of the circumstances under
which they are made and as of the respective dates of such statements, not
misleading.
8. MISCELLANEOUS PROVISIONS.
(a) ASSIGNMENT. No party may assign any of its rights or obligations
hereunder without the prior written consent of the other parties. This
Agreement shall be binding and inure to the benefit of the parties hereto and
their successors and permitted assigns.
(b) SEVERABILITY. In the event that any provision of this Agreement
is held by a court of competent jurisdiction to be unenforceable because it is
invalid or in conflict with any law of any relevant jurisdiction, the validity
of the remaining provisions shall not be affected and the rights and obligations
of the parties shall be construed and enforced as if this Agreement did not
contain the particular provision held to be unenforceable.
(c) NOTICES. Except for the notices contemplated in Section 1(d)
hereof, which may be made by facsimile transmission, all notices or other
communications in connection with this Agreement shall be in writing and either
delivered in person or sent via certified mail, postage and fees prepaid, return
receipt requested, and addressed to the other party at the address specified in
this Agreement, attn: President, or such other address as the addressee shall
have specified by notice hereunder.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with reference to the subject matter hereof. No
waiver, consent, modification or change of the terms of this Agreement shall
bind any party unless in writing signed by all parties by their duly authorized
representatives.
-7-
(e) WAIVER. The waiver by any party of a breach or default of any
provision of this Agreement by any other party shall not be construed as a
waiver of any succeeding breach or default of the same or any other provision,
nor shall any delay or omission on the part of a party to exercise or avail
itself of any right, power or privilege that it may have hereunder operate as a
waiver of any right, power or privilege by such party.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
(g) HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not be considered in interpreting or
construing this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed as an instrument
under seal as of the date first written above.
Interleaf, Inc.
By: /s/ JOHN HYVNAR
-------------------------
Title: GENERAL COUNSEL
----------------------
PruTech Research and Development
Partnership III, a California
Limited Partnership
By: R & D Funding Corp.,
General Partner
By: /s/ RUSSELL ALLEN
-----------------------
Title: PRESIDENT
--------------------
R & D Funding Corp.
By: /s/ RUSSELL ALLEN
-------------------------
Title: PRESIDENT
----------------------
-8-