SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
|X| Preliminary Proxy Statement
|_| Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2)
|_| Definitive Proxy Statement
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
MICROMUSE INC.
________________________________________________________________________________
(Name of Registrant as Specified In Its Charter)
________________________________________________________________________________
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No Fee Required
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1. Title of each class of securities to which transaction applies:
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2. Aggregate number of securities to which transaction applies:
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3. Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
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4. Proposed maximum aggregate value transaction:
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5. Total fee paid:
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|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration number, or
the Form or Schedule and the date of its filing.
1. Amount previously paid:
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2. Form, Schedule or Registration Statement No.:
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3. Filing Party:
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4. Date Filed:
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<PAGE>
[MICROMUSE INC. LOGO]
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held December 5, 2000
To Our Stockholders:
A Special Meeting of the Stockholders (the "Meeting") of Micromuse Inc.
(the "Corporation") will be held on Tuesday, December 5, 2000 at 10:00 a.m.
local time, at the Sheraton Palace Hotel, 2 New Montgomery Street, San
Francisco, California 94105. The purpose of the Meeting is to consider and take
action upon the following proposals recommended by the Board of Directors:
(1) to amend the Corporation's Restated Certificate of Incorporation
("Restated Certificate") to increase the number of the Corporation's
authorized common stock from 60 million shares to 200 million shares
("Proposal One");
(2) to amend Article X of the Corporation's Restated Certificate to
allow future amendments to the Restated Certificate in the manner
prescribed by the General Corporation Law of the State of Delaware,
instead of its current requirement of a supermajority (75%) approval
of the stockholders of the Corporation in order to amend the
Restated Certificate ("Proposal Two") (Proposal One and Proposal
Two, collectively, the "Proposals");
and to transact such other business as may properly come before the Meeting and
any adjournment or postponement thereof.
The transfer books of the Corporation will not be closed prior to the
Meeting but, pursuant to appropriate action by the Board of Directors, the
record date for determination of the stockholders entitled to notice of and vote
at the Meeting is October 26, 2000.
It is important that you use this opportunity to take part in the affairs
of your Corporation by voting on the business to come before this meeting.
Whether or not you expect to attend the meeting, please complete, date, sign and
promptly return the accompanying proxy card in the enclosed postage-paid
envelope so that your shares may be represented at the meeting.
The proxy card should be returned to the offices of Micromuse Inc., 139
Townsend Street, San Francisco, California 94107, not later than 10 a.m. on
Monday, December 4, 2000, being 24 hours prior to the time fixed for the
Meeting. Returning the proxy card does not deprive you of your right to attend
the meeting and to vote your shares in person.
This Notice, the Proxy and Proxy Statement enclosed herewith are sent to
you by order of the Board of Directors.
Sincerely,
Gregory Brown
Chairman and Chief Executive Officer
San Francisco, California
____________, 2000
<PAGE>
MICROMUSE INC.
PROXY STATEMENT
The enclosed proxy is solicited by the Board of Directors of Micromuse
Inc. (the "Corporation") for use at the Special Meeting of the Stockholders (the
"Meeting") to be held on Tuesday, December 5, 2000 at 10:00 a.m. local time, at
the Sheraton Palace Hotel, 2 New Montgomery Street, San Francisco, California
94105, and any adjournment thereof. The mailing address of the executive office
of the Corporation is 139 Townsend Street, San Francisco, California 94107. This
Proxy Statement and the enclosed proxy were first furnished to stockholders of
the Corporation on or about November 6, 2000.
VOTING RIGHTS AND SOLICITATION
The representation in person or by proxy of a majority of the outstanding
shares entitled to vote at the Meeting is necessary to provide a quorum for the
transaction of business at the Meeting, and a supermajority of the outstanding
shares entitled to vote at the Meeting is necessary to approve each of the
Proposals. Shares can only be voted if the stockholder is present in person or
is represented by returning a properly signed proxy. Each stockholder's vote is
very important. Whether or not you plan to attend the Meeting in person, please
sign and promptly return the enclosed proxy card, which requires no postage if
mailed in the United States. All signed and returned proxies will be counted
towards establishing a quorum for the Meeting, regardless of how the shares are
voted.
Shares represented by proxy will be voted in accordance with your
instructions. You may specify your choices by marking the appropriate box on the
proxy card. You may vote (i) "FOR" one or both of the Proposals, (ii) "AGAINST"
one or both of the Proposals or (iii) "ABSTAIN" from voting on one or both of
the Proposals. An abstention or withholding authority to vote will be counted as
present for determining whether the quorum requirement is satisfied. With
respect to the required vote on the Proposals, abstentions will be treated as
shares present and entitled to vote, and for purposes of determining the outcome
of the vote on a proposal, have the same effect as a vote against the proposal.
A broker "non-vote" occurs when a nominee holding shares for a beneficial holder
does not have discretionary voting power and does not receive voting
instructions from the beneficial owner. Broker "non-votes" will be counted
toward the quorum requirement, but will not be counted as votes cast on the
Proposals.
Proposal One, to amend the Corporation's Restated Certificate to increase
the authorized number of shares of common stock of the Corporation ("Common
Stock"), requires for approval the affirmative vote of seventy-five percent
(75%) of the Corporation's outstanding Common Stock entitled to vote at the
Meeting. Broker "non-votes" on Proposal One will have the effect of a vote
against Proposal One.
Proposal Two, to amend Article X of the Corporation's Restated
Certificate, requires for approval the affirmative vote of seventy-five percent
(75%) of the Corporation's outstanding Common Stock entitled to vote at the
Meeting. Broker "non-votes" on Proposal Two will have the effect of a vote
against the Proposal Two.
A stockholder who returns a proxy may revoke it at any time before the
stockholder's shares are voted at the Meeting (i) by written notice to the
Secretary of the Corporation received prior to the Meeting, (ii) by executing
and returning a later-dated proxy or (iii) by voting by ballot at the Meeting.
The outstanding stock of the Corporation entitled to vote as of October
26, 2000, consisted of _____ million shares of Common Stock. Only stockholders
of record at the close of business on October 26, 2000, are entitled to vote at
the Meeting. Each share is entitled to one vote.
The entire cost of soliciting proxies will be borne by the Corporation.
The Corporation has retained the services of ____________________ to assist in
the solicitation of proxies, who will receive a fee from the Corporation for
services rendered of approximately $________ plus out-of-pocket expenses.
Proxies will be solicited principally through the use of the mails, but, if
deemed desirable, may be solicited personally, through the internet or by
telephone, telegraph or special letter by officers and regular Micromuse Inc.
associates for no additional compensation. Arrangements may be made with
brokerage houses and other custodians, nominees and fiduciaries to send proxies
and proxy material to the beneficial owners of the Corporation's Common Stock,
and such persons may be reimbursed for their expenses.
Voting Electronically Via the Internet
If your shares are registered in the name of a bank or brokerage firm, you
may be eligible to vote your shares electronically over the Internet. A large
number of banks and brokerage firms are participating in the ADP Investor
Communication Services online program. This program provides eligible
stockholders who receive a paper copy of the
<PAGE>
annual report and proxy statement the opportunity to vote via the Internet. If
your bank or brokerage firm is participating in ADP's program, your voting form
will provide instructions. If your voting form does not provide for voting via
the internet, please complete and return the paper proxy card in the
self-addressed postage-paid envelope provided.
PROPOSAL ONE, TO INCREASE THE NUMBER OF AUTHORIZED COMMON STOCK
The Board of Directors of the Corporation has approved and recommends that
the stockholders approve Proposal One, an amendment to the Corporation's
Restated Certificate to increase the authorized number of shares of the
Corporation's Common Stock from 60,000,000 shares to 200,000,000 shares. On
October 24, 2000, the Corporation announced a conditional 2-for-1 stock split to
be effectuated by means of a 100% stock dividend (the "Stock Split"). Currently
the number of authorized shares of Common Stock is insufficient to permit the
Stock Split. An amendment to the Corporation's Restated Certificate to increase
the number of authorized shares of Common Stock is necessary to effectuate the
Stock Split. The Board of Directors has determined that an increase of the
number of authorized shares of Common Stock to 200,000,000 would be sufficient
to effectuate the Stock Split and to provide the Corporation with the
flexibility to act in the future with respect to financing programs,
acquisitions and other corporate needs, without the delay and expense incidental
to obtaining stockholder approval each time an opportunity requiring the
issuance of shares may arise.
On October 26, 2000, the Corporation had _______ million shares of Common
Stock issued and outstanding. Also on that date, the Corporation had
_____________ shares of Common Stock subject to outstanding options under the
Corporation's 1997 Stock Option/Stock Issuance Plan and 1998 Non-Officer Stock
Option/Stock Issuance Plan, and __________ shares available for issuance under
the Corporation's 1998 Employee Stock Purchase Plan. If Proposal One is
approved, after accounting for the Stock Split, approximately _______________
shares will be outstanding or reserved for issuance and approximately
_______________ more shares will be authorized for future issuance. The Board of
Directors believes that this amount of remaining authorized shares will be
sufficient to provide the Corporation flexibility to act with respect to its
future financing, acquisitions and other corporate needs.
A stockholder vote against Proposal One, to increase the number of
authorized shares of the Corporation's Common Stock, would prevent the Stock
Split. Further, the Board of Directors believes that unless the number of
authorized shares of Common Stock is increased, the number of authorized shares
available for issuance would limit the Corporation's ability to pursue
opportunities for future financings, acquisitions, mergers and other
transactions. The Corporation may also be limited in its ability to effectuate
future stock splits or stock dividends. The Corporation has considered other
plans to issue additional shares of Common Stock in possible future financings.
The Board of Directors believes that Proposal One's increase in the authorized
shares of Common Stock is necessary to provide the Corporation with the
flexibility to pursue the types of opportunities described above without added
delay and expense.
The availability of authorized but unissued shares of Common Stock might
be deemed to have the effect of preventing or discouraging an attempt by another
person to obtain control of the Corporation, because the additional shares could
be issued by the Board of Directors, which could dilute the stock ownership of
such person. This proposal is not being proposed in response to a known effort
to acquire control of the Corporation.
The additional shares of Common Stock to be authorized by adoption of
Proposal One would have rights identical to the currently outstanding shares of
Common Stock of the Corporation. Adoption of Proposal One would not affect the
rights of the holders of currently outstanding shares of Common Stock.
Adoption of Proposal One requires the vote of seventy-five percent (75%)
of the outstanding shares of the Corporation's Common Stock. Votes, abstentions
and broker "non-votes" will be counted as set forth in "VOTING RIGHTS AND
SOLICITATION." If Proposal One is approved, the Corporation intends to file the
Certificate of Amendment to the Restated Certificate, in the form of which is
attached hereto as Appendix A, shortly after the Meeting. The Certificate of
Amendment to the Restated Certificate will be effective immediately upon
acceptance of filing by the Secretary of the State of Delaware. The Board of
Directors would be free to issue Common Stock without further action on the part
of the stockholders.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THIS PROPOSAL
PROPOSAL TWO, TO ELIMINATE THE SUPERMAJORITY STOCKHOLDER VOTE REQUIREMENT
NECESSARY TO AMEND THE CORPORATION'S RESTATED CERTIFICATE
The Board of Directors of the Corporation has approved and recommends that
the stockholders approve Proposal Two, an amendment to Article X of the
Corporation's Restated Certificate to allow future amendments to the Restated
Certificate in the manner prescribed by the General Corporation Law of the State
of Delaware ("Delaware Law").
2
<PAGE>
Currently, Delaware Law requires a simple majority vote of the outstanding stock
entitled to vote, and a simple majority of the outstanding stock of each class
of stock entitled to vote as a class, in order to amend a Certificate of
Incorporation. Article X currently requires a vote of at least 75% of the voting
power of all of the outstanding shares of capital stock of the Corporation in
order to amend, alter or repeal most provisions of the Restated Certificate.
In the view of the founders of the Corporation at the time of the
Corporation's Initial Public Offering, the supermajority voting requirement of
Article X was necessary to encourage continuity and stability in the management
team and in their roles on the Board of Directors. The founders are no longer
active in the Corporation and are no longer on the Corporation's Board of
Directors. The current Board of Directors of the Corporation has determined
after due consideration that Article X's supermajority voting requirement is no
longer in the best interests of the Corporation or its stockholders. For
example, this requirement may potentially impede the Corporation's growth and
development by not allowing the flexibility necessary to pursue financing
programs, acquisitions and other transactions necessary for the continued
success of the Corporation. Further, the Board of Directors has determined that
this requirement is unusual for many companies with publicly traded securities
and may place the Corporation at a competitive disadvantage in responding
quickly and effectively to corporate opportunities that may arise.
The amended language of Proposal Two shall allow amendments to the
Restated Certificate in the manner prescribed by Delaware Law. If Proposal Two
is passed by the requisite affirmative vote of the Corporation's stockholders,
Article X of the Restated Certificate shall be amended to read in its entirety
as follows:
"The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated Certificate, in the manner now or
hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation."
Adoption of Proposal Two also requires the vote of seventy-five percent
(75%) of the outstanding shares of the Corporation's Common Stock. Votes,
abstentions and broker "non-votes" will be counted as set forth in "VOTING
RIGHTS AND SOLICITATION." If Proposal Two is approved, the Corporation intends
to file the Certificate of Amendment to the Restated Certificate, in the form of
which is attached hereto as Appendix A, shortly after the Meeting. The
Certificate of Amendment to the Restated Certificate will be effective
immediately upon acceptance of filing by the Secretary of the State of Delaware.
Future amendments to the Restated Certificate would be subject only to the
stockholder voting requirements prescribed by Delaware Law.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THIS PROPOSAL
OTHER ACTION
Management is not aware at this time of any other matters that will be
presented for action at the Meeting. Should any such matters be presented, the
proxies grant power to the proxy holders to vote shares represented by the
proxies in the discretion of such proxy holders.
STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be presented at the 2001 Annual
Meeting of Stockholders must be received by the Corporation for inclusion in the
Proxy Statement and form of proxy relating to that meeting no later than
November 26, 2000 or as otherwise required by the bylaws of the Corporation.
Such proposals may be included in next year's proxy statement if they comply
with the bylaws of the Corporation and certain rules and regulations promulgated
by the Securities and Exchange Commission. The Corporation currently believes
that the 2001 Annual Meeting of Stockholders will be held during the last week
of January 2001 or the first week of February 2001. Such stockholder proposals
should be addressed to Micromuse Inc., 139 Townsend Street, San Francisco,
California 94107, Attn: Investor Relations.
SOLICITATION STATEMENT
The cost of this solicitation of proxies will be borne by the Corporation.
The Corporation has retained the services of ____________________ to assist in
the solicitation of proxies, who will receive a fee from the Corporation for
services rendered of approximately $________ plus out-of-pocket expenses.
Brokers, nominees, custodians, and fiduciaries are requested to forward
solicitation materials to obtain voting instructions from beneficial owners of
stock registered in their names, and the Corporation will reimburse such parties
for their reasonable charges and expenses in connection therewith.
By Order of the Board of Directors,
3
<PAGE>
Gregory Brown
Chairman and Chief Executive Officer
San Francisco, California
_________, 2000
4
<PAGE>
APPENDIX A
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MICROMUSE INC.
The undersigned certifies that:
1. He is the Secretary of Micromuse Inc., a Delaware corporation (the
"Corporation").
2. The Article IV of the Restated Certificate of Incorporation of the
Corporation is amended to read in its entirety as follows:
"The Corporation is authorized to issue two classes of stock
to be designated common stock ('Common Stock') and preferred
stock ('Preferred Stock'). The number of shares of Common
Stock authorized to be issued is Two Hundred Million
(200,000,000), par value $.01 per share, and the number of
Preferred Stock authorized to be issued is Five Million
(5,000,000), par value $.01 per share.
The Preferred Stock may be issued from time to time in one or
more series, without further stockholder approval. The Board
of Directors is hereby authorized, in the resolution or
resolutions adopted by the Board of Directors providing for
the issue of any wholly unissued series of Preferred Stock,
within the limitations and restrictions stated in the Restated
Certificate of Incorporation (the 'Restated Certificate'), to
fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or
prices, and the liquidation preferences of any wholly unissued
series of Preferred Stock, and the number of shares
constituting any such series and the designation thereof, or
any of them, and to increase or decrease the number of shares
of any series subsequent to the issue of shares of that
series, but not below the number of shares of such series then
outstanding. In the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such
series."
A-1
<PAGE>
3. The Article X of the Restated Certificate of Incorporation of the
Corporation is amended to read in its entirety as follows:
"The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate,
in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject
to this reservation."
4. The foregoing amendments to the Restated Certificate of Incorporation
of the Corporation were duly adopted by the Board of Directors of the
Corporation in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware, and approved by a vote of the holders
of seventy-five percent (75%) of the shares of the Corporation's common stock at
a special meeting of the shareholders of the Corporation, in accordance with the
provisions of Sections 242 and 211 of the General Corporation Law of the State
of Delaware.
The undersigned further declares under penalty of perjury under the laws
of the State of Delaware, that the matters set forth in this Certificate are
true and correct of his own knowledge.
Dated: _______________, 2000
____________________________
James B. De Golia, Secretary
A-2
<PAGE>
FORM OF PROXY
MICROMUSE INC.
139 Townsend Street, San Francisco, California 94107
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR A SPECIAL MEETING OF THE STOCKHOLDERS TO BE HELD
DECEMBER 5, 2000
The undersigned holder of Common Stock, par value $0.01, of Micromuse Inc.
(the "Corporation") hereby appoints Gregory Q. Brown and James B. De Golia, and
each of them, as proxies, with full power of substitution, to represent and to
vote all Common Stock of the Corporation that the undersigned stockholder would
be entitled to vote if personally present at a Special Meeting of Stockholders
(the "Special Meeting") to be held on Tuesday, December 5, 2000 at 10:00 a.m.
pacific standard time, at the Sheraton Palace Hotel, 2 New Montgomery Street,
San Francisco, California, 94105, and at any adjournments or postponements
thereof, on Proposal One and Proposal Two as the undersigned has specified, and
on such other matters as may come before the Special Meeting.
You are encouraged to specify your choices by marking the appropriate
boxes on the reverse side, but you need not mark any boxes if you wish to vote
in accordance with the board of director's recommendations. Whether you specify
your choices on the reverse side or choose to leave the boxes unmarked, please
sign, date and return this card promptly using the enclosed return envelope. If
you receive more than one proxy card, please sign, date and return all cards in
the enclosed envelope.
The record date for determination of the stockholders entitled to notice
of and vote at the Special Meeting is October 26, 2000.
THE UNDERSIGNED STOCKHOLDER MAY REVOKE THIS PROXY AT ANY TIME BEFORE IT IS
VOTED BY DELIVERING TO THE CORPORATE SECRETARY OF THE COMPANY EITHER A WRITTEN
REVOCATION OF THE PROXY OR A DULY EXECUTED PROXY BEARING A LATER DATE, OR BY
APPEARING AT THE SPECIAL MEETING AND VOTING IN PERSON.
(Continued and to be signed on reverse side)
<PAGE>
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
Please mark your votes as |X| indicated in this example.
This proxy, when properly executed, will be voted in the manner directed
herein by the undersigned stockholder. If no direction is given, this proxy will
be voted FOR Proposal One and FOR Proposal Two.
The Board of Directors of the Corporation recommends a vote FOR Proposal One
1. Proposal One. Amend the Restated Certificate of Incorporation of the
Corporation to increase the number of authorized shares of common stock
from 60 million to 200 million;
|_| FOR |_| AGAINST |_| ABSTAIN
The Board of Directors of the Corporation recommends a vote FOR Proposal Two
2. Proposal Two. Amend Article X of the Restated Certificate of Incorporation
of the Corporation to allow the amendment, alteration or repeal of the
Corporation's Restated Certificate of Amendment in the manner now or
hereafter prescribed by the General Corporation Law of the State of
Delaware.
|_| FOR |_| AGAINST |_| ABSTAIN
In their discretion, the proxies are authorized to vote upon such other
business as may properly come before the Special Meeting. If more than one of
the proxies listed on the reverse side shall be present at the meeting or any
adjournment thereof, the majority of said proxies so present and voting shall
exercise all of the powers conferred hereby.
The undersigned acknowledges receipt of the accompanying Notice of Special
Meeting of Stockholders and Proxy Statement. The undersigned stockholder hereby
revokes any proxy or proxies heretofore given to vote upon or act with respect
to such shares and hereby and confirms all that the proxies listed on the
reverse side, or either of them, may lawfully do by virtue hereof.
_____________________________ Date: _____________, 2000
(Signature)
_____________________________ Date: _____________, 2000
(Signature if Held Jointly)
Note: Please date and sign exactly as your name(s) is (are) shown on the share
certificate(s) to which the Proxy applies. When shares are held as
joint-tenants, both should sign. When signing as an executor,
administrator, trustee, guardian, attorney-in fact or other fiduciary,
please give full title as such. When signing as a corporation, please sign
in full corporate name by President or other authorized officer. When
signing as a partnership, please sign in partnership name by an authorized
person.
Change of Address/Comments on reverse side |_|
