<PAGE>
================================================================================
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [x]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[ ] Preliminary Proxy Statement [_] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[x] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
ACTUATE SOFTWARE CORORATION
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
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:
-------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
-------------------------------------------------------------------------
(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):
-------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
-------------------------------------------------------------------------
(5) Total fee paid:
-------------------------------------------------------------------------
[_] 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 statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
-------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
-------------------------------------------------------------------------
(3) Filing Party:
-------------------------------------------------------------------------
(4) Date Filed:
-------------------------------------------------------------------------
Notes:
<PAGE>
[LOGO OF ACTUATE SOFTWARE CORPORATION]
ACTUATE SOFTWARE CORPORATION
999 Baker Way, Suite 200
San Mateo, California 94404
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To be held May 20, 1999
The Annual Meeting of Stockholders (the "Annual Meeting") of Actuate
Software Corporation (the "Company") will be held at 999 Baker Way, Suite 200,
San Mateo, California, on Thursday, May 20, 1999, at 9:00 a.m. for the
following purposes:
1. To elect six directors of the Board of Directors to serve until the next
Annual Meeting or until their successors have been duly elected and qualified;
2. To approve an amendment to the Company's Certificate of Incorporation to
change the Company's name to Actuate Corporation.
3. To ratify the appointment of Ernst & Young LLP, Independent Auditors as
the Company's independent public accountants for the fiscal year ending
December 31, 1999; and
4. To transact such other business as may properly come before the meeting
or any adjournments or postponements thereof.
The foregoing items of business are more fully described in the attached
Proxy Statement.
Only stockholders of record at the close of business on March 25, 1999 are
entitled to notice of, and to vote at, the Annual Meeting and at any
adjournments or postponements thereof. A list of such stockholders will be
available for inspection at the Company's headquarters located at 999 Baker
Way, Suite 200, San Mateo, California, during ordinary business hours for the
ten-day period prior to the Annual Meeting.
BY ORDER OF THE BOARD OF DIRECTORS,
/s/ NICOLAS C. NIERENBERG
Nicolas C. Nierenberg
Chairman of the Board and Chief
Executive Officer
San Mateo, California
April 15, 1999
IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND the Annual Meeting, please COMPLETE,
sign, date and PROMPTLY return the ACCOMPANYING proxy in the ENCLOSED
POSTAGE-PAID envelope. you may revoke your proxy at any time prior to the
annual meeting. If you decide to attend the Annual Meeting and wish to
change your proxy vote, you may do so automatically by voting in person at
the meeting.
<PAGE>
ACTUATE SOFTWARE CORPORATION
999 Baker Way
San Mateo, California 94404
PROXY STATEMENT
FOR ANNUAL MEETING OF STOCKHOLDERS
To be held May 20, 1999
These proxy materials are furnished in connection with the solicitation of
proxies by the Board of Directors of Actuate Software Corporation, a Delaware
corporation (the "Company"), for the Annual Meeting of Stockholders (the
"Annual Meeting") to be held at the Company's principal executive offices
located at 999 Baker Way, Suite 200, San Mateo, California, on Thursday, May
20, 1999, at 9:00 a.m., and at any adjournment or postponement of the Annual
Meeting. These proxy materials were first mailed to stockholders on or about
April 15, 1999.
PURPOSE OF MEETING
The specific proposals to be considered and acted upon at the Annual
Meeting are summarized in the accompanying Notice of Annual Meeting of
Stockholders. Each proposal is described in more detail in this Proxy
Statement.
VOTING RIGHTS AND SOLICITATION OF PROXIES
The Company's Common Stock is the only type of security entitled to vote at
the Annual Meeting. On March 25, 1999, the record date for determination of
stockholders entitled to vote at the Annual Meeting, there were 13,844,412
shares of Common Stock outstanding. Each stockholder of record on March 25,
1999 is entitled to one vote for each share of Common Stock held by such
stockholder on March 25, 1999. Shares of Common Stock may not be voted
cumulatively. All votes will be tabulated by the inspector of election
appointed for the meeting, who will separately tabulate affirmative and
negative votes, abstentions and broker non votes.
Quorum Required
The Company's bylaws provide that the holders of a majority of the
Company's Common Stock issued and outstanding and entitled to vote at the
Annual Meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at the Annual Meeting. Abstentions and
broker non-votes will be counted as present for the purpose of determining the
presence of a quorum.
Votes Required
Proposal 1. Directors are elected by a plurality of the affirmative votes
cast by those shares present in person, or represented by proxy, and entitled
to vote at the Annual Meeting. The six (6) nominees for director receiving the
highest number of affirmative votes will be elected. Abstentions and broker
non-votes will not be counted toward a nominee's total. Stockholders may not
cumulate votes in the election of directors.
Proposal 2. Approval of the adoption of the amendment to the Company's
Certificate of Incorporation requires the affirmative vote of a majority of
the Company's Common Stock issued and outstanding and entitled to vote at the
Annual Meeting. Abstentions and broker non-votes are not affirmative votes
and, therefore, will have the same effect as votes against the proposal.
Proposal 3. Ratification of the appointment of Ernst & Young L.L.P,
Independent Auditors as the Company's independent public accountants for the
fiscal year ending December 31, 1999 requires the affirmative vote of a
majority of those shares present in person, or represented by proxy, and cast
either affirmatively or
1
<PAGE>
negatively at the Annual Meeting. Abstentions and broker non-votes will not be
counted as having been voted on the proposal.
Proxies
Whether or not you are able to attend the Company's Annual Meeting, you are
urged to complete and return the enclosed proxy, which is solicited by the
Company's Board of Directors and which will be voted as you direct on your
proxy when properly completed. In the event no directions are specified, such
proxies will be voted FOR the Nominees of the Board of Directors (as set forth
in Proposal 1), FOR Proposal 2 and 3, and in the discretion of the proxy
holders as to other matters that may properly come before the Annual Meeting.
You may also revoke or change your proxy at any time before the Annual
Meeting. To do this, send a written notice of revocation or another signed
proxy with a later date to the Secretary of the Company at the Company's
principal executive offices before the beginning of the Annual Meeting. You
may also automatically revoke your proxy by attending the Annual Meeting and
voting in person. All shares represented by a valid proxy received prior to
the Annual Meeting will be voted.
Solicitation of Proxies
The Company will bear the entire cost of solicitation, including the
preparation, assembly, printing, and mailing of this Proxy Statement, the
proxy, and any additional soliciting material furnished to stockholders.
Copies of solicitation material will be furnished to brokerage houses,
fiduciaries, and custodians holding shares in their names that are
beneficially owned by others so that they may forward this solicitation
material to such beneficial owners. In addition, the Company may reimburse
such persons for their costs of forwarding the solicitation material to such
beneficial owners. The original solicitation of proxies by mail may be
supplemented by solicitation by telephone, telegram, or other means by
directors, officers, employees, or at the Company's request, Corporate
Investor Communications, Inc. ("CIC"), a professional proxy solicitation firm.
No additional compensation will be paid to directors, officers or employees
for such services, but CIC will be paid its customary fee, estimated to be
about $5,000, if it renders solicitation services.
2
<PAGE>
PROPOSAL 1
ELECTION OF DIRECTORS
The directors who are being nominated for reelection to the Board of
Directors (the "Nominees"), their ages as of April 1, 1999, their positions
and offices held with the Company and certain biographical information are set
forth below. The proxy holders intend to vote all proxies received by them in
the accompanying form FOR the Nominees listed below unless otherwise
instructed. In the event any Nominee is unable or declines to serve as a
director at the time of the Annual Meeting, the proxies will be voted for any
nominee who may be designated by the present Board of Directors to fill the
vacancy. As of the date of this Proxy Statement, the Board of Directors is not
aware of any Nominee who is unable or will decline to serve as a director. The
six (6) nominees receiving the highest number of affirmative votes of the
shares entitled to vote at the Annual Meeting will be elected directors of the
Company to serve until the next Annual Meeting or until their successors have
been duly elected and qualified.
<TABLE>
<CAPTION>
Nominees Age Positions and Offices Held with the Company
- -------- --- -------------------------------------------
<S> <C> <C>
Nicolas C. Nierenberg... 42 Chairman of the Board and Chief Executive Officer
Peter I. Cittadini...... 43 Director, President and Chief Operating Officer
James W. Breyer (1)..... 37 Director
Arthur C. Patterson
(2).................... 55 Director
Nancy J. Schoendorf
(2).................... 44 Director
Steven D. Whiteman (1).. 48 Director
</TABLE>
- --------
(1) Member of Compensation Committee
(2) Member of Audit Committee
Nicolas C. Nierenberg is a co-founder of the Company and has been its Chief
Executive Officer and Chairman of the Board of Directors since November 1993.
Mr. Nierenberg was also President of the Company until October 1998. Prior to
founding the Company, from April 1993 to November 1993, Mr. Nierenberg worked
as a consultant for Accel Partners, a venture capital firm, evaluating
investment opportunities in the enterprise software market. Mr. Nierenberg co-
founded Unify Corporation, which develops and markets relational database
development tools. Mr. Nierenberg held a number of positions at Unify
including, Chairman of the Board of Directors, Chief Executive Officer,
President, Vice President, Engineering and Chief Technical Officer.
Mr. Nierenberg is a Director of Cloudscape, Inc., a privately held Java
database management system software company. Mr. Nierenberg attended the
University of California, Los Angeles and the University of California, San
Diego where he studied computer science and economics.
Peter I. Cittadini has been the President and Chief Operating Officer of
the Company since October 1998 and served as the Company's Executive Vice
President from January 1995 to October 1998. From 1992 to January 1995, Mr.
Cittadini held a number of positions at Interleaf, Inc., an enterprise
software publishing company, including Senior Vice President of Worldwide
Operations responsible for worldwide sales, marketing, customer support and
services. From 1985 to 1991, Mr. Cittadini held a number of positions at
Oracle Corporation, including Vice President, Northeast Division. Mr.
Cittadini holds a B.A. in Liberal Arts from Boston College.
James W. Breyer has been a director of the Company since November 1993. Mr.
Breyer has been a general partner of Accel Partners, a venture capital firm
since 1990, and the Managing Partner since 1997. At Accel, Mr. Breyer has been
responsible for the firm's involvement in over a dozen companies that have
completed public offerings or successful mergers. Prior to joining Accel, Mr.
Breyer worked as a management consultant at McKinsey and Company, and held
product management and marketing positions at Apple Computer and Hewlett
Packard. Mr. Breyer currently serves as a director of RealNetworks, Inc. and
several privately held companies. Mr. Breyer holds a B.S. in Computer Science
and Economics from Stanford University and an M.B.A. from Harvard University,
where he was named a Baker Scholar.
3
<PAGE>
Arthur C. Patterson has been a director of the Company since November 1993.
Mr. Patterson is a general partner of Accel Partners, a venture capital firm,
which he founded in 1983. Mr. Patterson currently serves as a director of AIM
Funds, PageMart Wireless, Inc., Unify Corporation and Viasoft, Inc. and
several privately held enterprise software and communications companies. Mr.
Patterson holds an A.B. and an M.B.A. from Harvard University.
Nancy J. Schoendorf has been a director of the Company since September
1994. Ms. Schoendorf has been a general partner of Mohr, Davidow Ventures, a
venture capital firm since 1994, and a Managing Partner since 1997. Prior to
joining Mohr, Davidow, Ms. Schoendorf spent seventeen years in the computer
industry including management positions with Hewlett-Packard, Software
Publishing Corporation and Sun Microsystems, Inc. Ms. Schoendorf currently
serves as a director of Prism Solutions, Inc. and several privately held
companies. Ms. Schoendorf holds a B.S. in Computer Science from Iowa State
University and an M.B.A from Santa Clara University.
Steven D. Whiteman has been a director of the Company since April 1998.
Since May 1993, Mr. Whiteman has served as President of Viasoft, Inc., a
publicly traded software application and services company, and has served as
Chief Executive Officer and Director since February 1994 and Chairman of the
Board of Directors since April 1997. Mr. Whiteman currently serves as a
director of Unify Corporation. Mr. Whiteman holds a B.A. in Business
Administration from Taylor University and an M.B.A. from the University of
Cincinnati.
Board of Directors Meetings and Committees
During the fiscal year ended December 31, 1998, the Board of Directors held
six (6) meetings and acted by written consent one (1) time. For the fiscal
year, each of the directors during the term of their tenure attended or
participated in at least 75% of the aggregate of (i) the total number of
meetings or actions by written consent of the Board of Directors and (ii) the
total number of meetings held by all committees of the Board of Directors on
which each such director served. The Board of Directors has two (2) standing
committees: the Compensation Committee and the Audit Committee.
During the fiscal year ended December 31, 1998, the Compensation Committee
of the Board of Directors held one (1) meeting. The Compensation Committee
reviews the performance of the executive officers of the Company and reviews
the compensation programs for other key employees, including salary and cash
bonus levels and option grants under the 1998 Equity Incentive Plan. The
members of the Compensation Committee are Messrs. Breyer and Whiteman.
During the fiscal year ended December 31, 1998, the Audit Committee of the
Board of Directors held one (1) meeting. The Audit Committee reviews, acts on
and reports to the Board of Directors with respect to various auditing and
accounting matters, including the selection of the Company's auditors, the
scope of the annual audits, fees to be paid to the Company's auditors, the
performance of the Company's auditors and the accounting practices of the
Company. The members of the Audit Committee are Mr. Patterson and Ms.
Schoendorf.
Compensation of Directors
Except for grants of stock options, directors of the Company do not receive
compensation for services provided as a director although members are
reimbursed for certain expenses in connection with attendance at Board of
Directors and Committee meetings. The Company also does not pay compensation
for committee participation or special assignments of the Board of Directors.
Non-employee Board members are eligible for option grants pursuant to the
provisions of the 1998 Non-Employee Directors Option Plan. Each individual who
first joins the Board as a non-employee director, whether through election or
appointment will receive at that time, an automatic option grant for 20,000
shares of Common Stock. With respect to the initial automatic option grant,
the option will become exercisable as to 20% of the shares after one year of
Board service and in the balance of the shares in a series of 48 equal monthly
installments
4
<PAGE>
over the remaining period of optionee's Board service. In addition, at each
annual stockholders meeting, each non-employee director will automatically be
granted at that meeting, whether or not he or she is standing for re-election
at that particular meeting, a stock option to purchase 2,500 shares of Common
Stock, which will become fully exercisable on the first anniversary of such
meeting. Each option will have an exercise price equal to the fair market
value of the Common Stock on the automatic grant date and a maximum term of
ten years, subject to earlier termination following the optionee's cessation
of Board service. However, vesting will automatically accelerate in full upon
(i) an acquisition of the Company by merger, consolidation or asset sale, (ii)
a tender offer for more than 50% of the outstanding voting stock or proxy
contest for Board membership or (iii) the death or disability of the optionee
while serving as a Board member.
In April 1998, Mr. Whiteman was granted an option to purchase 30,000 shares
of the Company's Common Stock under the Company's 1994 Stock Option Plan at an
exercise price of $5.00 per share subject to a five year vesting schedule in
connection with his appointment to the Board.
Directors who are also employees of the Company are eligible to receive
options under the 1998 Equity Incentive Plan and are also eligible to
participate in the Company's 1998 Employee Stock Purchase Plan.
Recommendation of the Board of Directors
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE NOMINEES LISTED HEREIN.
Other Executive Officers
The following are additional executive officers of the Company. All
executive officers serve at the discretion of the Board of Directors.
Daniel A. Gaudreau, age 51, has been Senior Vice President, Finance and
Administration and Chief Financial Officer since January 1999 and served as
Vice President, Finance and Administration and Chief Financial Officer from
February 1997 to January 1999. From January 1994 to February 1997, Mr.
Gaudreau served as Vice President, Finance and Chief Financial Officer of
Plantronics, Inc., a publicly traded telephone headset manufacturing company,
where he was responsible for all financial and administrative operations. From
January 1990 to January 1994, Mr. Gaudreau was Vice President, Finance and
Chief Financial Officer at Ready Systems, an operating systems software
company. Prior to that, Mr. Gaudreau spent two years at Apple Computer as the
Controller of Fremont Manufacturing Operations, prior to which he spent 18
years at General Electric where he held various financial management
positions. Mr. Gaudreau holds a B.S. in Industrial Management from Clarkson
University.
Hamid R. Bahadori, age 45, has been Senior Vice President, Engineering
since January 1999 and served as Vice President, Engineering from May 1998 to
January 1999. From June 1996 to May 1998, Mr. Bahadori served as Vice
President, Engineering for Envive Corp., a privately held applications
software company. Prior to that, Mr. Bahadori was a Senior Director of
Software Products Development for Oracle from 1989 to 1996. Mr. Bahadori holds
a B.S. in Applied Math and Electrical Engineering/Computer Science from Purdue
University and an M.S. and Ph.D. in Computer Science from the University of
California, Berkeley.
5
<PAGE>
PROPOSAL 2
AMENDMENT TO THE COMPANY'S CERTIFICATE OF INCORPORATION
The Board of Directors has determined that it is in the best interests of
the Company and its stockholders to amend the Company's Certificate of
Incorporation to change the Company's name to "Actuate Corporation."
Accordingly, the Board of Directors has unanimously approved the proposed
Certificate of Amendment to the Second Amended and Restated Certificate of
Incorporation of the Company, in the form attached hereto as Exhibit A (the
"Certificate of Amendment"), and hereby solicits the approval of the Company's
stockholders of the Certificate of Amendment. If the stockholders approve the
Certificate of Amendment, the Board of Directors currently intends to file the
Certificate of Amendment with the Secretary of State of the State of Delaware
as soon as practicable following such stockholder approval. If the Certificate
of Amendment is not approved by the stockholders, the existing Certificate of
Incorporation will continue in effect.
The Board of Directors believes that changing the Company's name to
"Actuate Corporation," will assist the Company in increasing the name
recognition of the Company and its products.
Recommendation of the Board of Directors
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" PROPOSAL 2.
PROPOSAL 3
RATIFICATION OF INDEPENDENT ACCOUNTANTS
The Company is asking the stockholders to ratify the appointment of Ernst &
Young LLP, Independent Auditors as the Company's independent public
accountants for the fiscal year ending December 31, 1999. The affirmative vote
of the holders of a majority of shares present or represented by proxy and
voting at the Annual Meeting will be required to ratify the appointment of
Ernst & Young LLP.
In the event the stockholders fail to ratify the appointment, the Board of
Directors will reconsider its selection. Even if the appointment is ratified,
the Board of Directors, in its discretion, may direct the appointment of a
different independent accounting firm at any time during the year if the Board
of Directors feels that such a change would be in the Company's and its
stockholders' best interests.
Ernst & Young LLP has audited the Company's financial statements since
1994. Its representatives are expected to be present at the Annual Meeting,
will have the opportunity to make a statement if they desire to do so, and
will be available to respond to appropriate questions.
Recommendation of the Board of Directors
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" PROPOSAL 3.
6
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of February 26, 1999, certain
information with respect to shares beneficially owned by (i) each person who
is known by the Company to be the beneficial owner of more than five percent
of the Company's outstanding shares of Common Stock, (ii) each of the
Company's directors, (iii) each of the Company's Named Executive Officers and
(iv) all current directors and executive officers as a group. Beneficial
ownership has been determined in accordance with Rule 13d-3 under the Exchange
Act. Under this rule, certain shares may be deemed to be beneficially owned by
more than one person (if, for example, persons share the power to vote or the
power to dispose of the shares). In addition, shares are deemed to be
beneficially owned by a person if the person has the right to acquire shares
(for example, upon exercise of an option or warrant) within sixty (60) days of
the date as of which the information is provided; in computing the percentage
ownership of any person, the amount of shares is deemed to include the amount
of shares beneficially owned by such person (and only such person) by reason
of such acquisition rights. As a result, the percentage of outstanding shares
of any person as shown in the following table does not necessarily reflect the
person's actual voting power at any particular date.
<TABLE>
<CAPTION>
Shares Beneficially Owned (1)
---------------------------------
Number of Percentage of
Name of Beneficial Owner Shares Total
- ------------------------ ----------------- ---------------
<S> <C> <C>
Entities affiliated with Accel Partners
(2)...................................... 3,971,903 28.7%
428 University Avenue
Palo Alto, CA 94301
Mohr, Davidow Ventures III (3)............ 1,449,779 10.5%
2775 Sand Hill Road, Suite 240
Menlo Park, CA 94025
Amerindo Investment Advisors Inc. (4)..... 961,400 6.9%
One Embarcadero Center, Suite 2300
San Francisco, CA 94111
Nicolas C. Nierenberg (5)................. 1,450,000 10.4%
c/o Actuate Software Corporation
999 Baker Way, Suite 200
San Mateo, CA 94404
Peter I. Cittadini (6).................... 453,500 3.3%
Daniel A. Gaudreau(7)..................... 161,000 1.2%
Hamid R. Bahadori (8)..................... 152,000 1.1%
Albert R. Campa (9)....................... 103,422 *
James W. Breyer (2)....................... 3,885,413 28.1%
c/o Accel Partners
428 University Avenue
Palo Alto, CA 94301
Arthur A. Patterson (2)................... 3,971,903 28.7%
c/o Accel Partners
428 University Avenue
Palo Alto, CA 94301
Nancy Schoendorf (3) (10)................. 1,462,323 10.6%
c/o Mohr, Davidow Ventures
2775 Sand Hill Road, Suite 240
Menlo Park, CA 94025
Steven D. Whiteman (11)................... 30,000 *
All current directors and executive
officers as a group (9 persons) (12)..... 7,784,148 54.7%
</TABLE>
- --------
* Less than 1%
7
<PAGE>
(1) This table is based upon information supplied by officers, directors and
principal stockholders and Schedules 13D and 13G filed with the
Securities and Exchange Commission (the "Commission"). Beneficial
ownership has been determined in accordance with the rules of the
Commission and includes voting or investment power with respect to
securities. Except as indicated in the footnotes to this table and
pursuant to applicable community property laws, the persons named in the
table have sole voting and investment power with respect to all shares of
Common Stock. Applicable percentages are based on 13,841,955 shares
outstanding on February 26, 1999, adjusted as required by rules
promulgated by the Commission. Unless otherwise indicated, the business
address of each beneficial owner listed is 999 Baker Way, Suite 200, San
Mateo, California, 94404.
(2) Includes 3,665,254 shares held by Accel IV L.P., 145,462 shares held by
Accel Investors '93 L.P., 74,697 shares held by Accel Keiretsu L.P.,
86,490 shares held by Ellmore C. Patterson Partners and 23,588 shares
held by Prosper Partners. Messrs. Breyer and Patterson, directors of the
Company, are general partners of Accel IV Associates L.P., the general
partner of Accel IV L.P. Messrs. Breyer and Patterson are general
partners of Accel Investors '93 L.P. Messrs. Breyer and Patterson are
officers of Accel Partners & Co., the general partner of Accel Keiretsu
L.P. Mr. Patterson is the general partner of each of Ellmore C. Patterson
Partners. Each of Messrs. Breyer and Patterson disclaim beneficial
ownership of such shares except to the extent of his pecuniary interest
therein.
(3) Ms. Schoendorf, a director of the Company, is a general partner of WLPJ
Partners, the general partner of Mohr, Davidow Ventures III. Ms.
Schoendorf disclaims beneficial ownership of such shares except to the
extent of her pecuniary interest therein.
(4) Based on a Schedule 13G/A filed with the Securities and Exchange
Commission for the year ended December 31, 1998. Includes 824,500 shares
held by Amerindo Investment Advisors Inc., a California corporation and
136,900 shares held by Amerindo Investment Advisors Inc., a Panama
corporation (the "Advisor Entities"). Mr. Albert W. Villar and Mr. Gary
A. Tanaka are the sole shareholders and directors of the Advisor Entities
and share with each other investment and dispositive power as to all of
the shares held by the Advisor Entities.
(5) Includes options exercisable into 150,000 shares of Common Stock within
60 days of February 26, 1999.
(6) Includes options exercisable into 40,000 shares of Common Stock within 60
days of February 26, 1999.
(7) Includes options exercisable into 10,000 shares of Common Stock within 60
days of February 26, 1999.
(8) Includes options exercisable into 150,000 shares of Common Stock within
60 days of February 26, 1999.
(9) Includes options exercisable into 20,000 shares of Common Stock within 60
days of February 26, 1999.
(10) Includes 1,449,779 shares held by Mohr, Davidow Ventures.
(11) Includes options exercisable into 30,000 shares of Common Stock within 60
days of February 26, 1999.
(12) Includes options exercisable into 400,000 shares of Common Stock within
60 days of February 26, 1999.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
The members of the Board of Directors, the executive officers of the
Company and persons who hold more than 10% of the Company's outstanding Common
Stock are subject to the reporting requirements of Section 16(a) of the
Securities Exchange Act of 1934, as amended, which require them to file
reports with respect to their ownership of the Company's Common Stock and
their transactions in such Common Stock. Based upon (i) the copies of Section
16(a) reports that the Company received from such persons for their 1998
fiscal year transactions in the Common Stock and their Common Stock holdings
and (ii) the written representations received from one or more of such persons
that no annual Form 5 reports were required to be filed by them for the 1998
fiscal year, the Company believes that all reporting requirements under
Section 16(a) for such fiscal year were met in a timely manner by its
executive officers, Board members and greater than ten-percent stockholders,
except that Hamid R. Bahadori filed one Form 4 for an open market purchase of
1,000 shares late.
8
<PAGE>
EXECUTIVE COMPENSATION AND RELATED INFORMATION
Compensation of Executive Officers
Summary of Compensation
The following table sets forth information with respect to compensation for
the fiscal year ended December 31, 1998 paid by the Company for services to
the Company by the Company's Chief Executive Officer and the Company's four
other highest paid executive officers whose total salary and bonus for such
fiscal year exceeded $100,000 (collectively, the "Named Executive Officers"):
<TABLE>
<CAPTION>
Long-Term
Annual Compensation
Compensation Awards
-------------------- ------------
Number of
Securities
Underlying
Name and Principal Position Year Salary $ Bonus $ Options
- --------------------------- ---- -------- -------- ------------
<S> <C> <C> <C> <C>
Nicolas C. Nierenberg................... 1998 $183,365 $181,576 100,000
Chairman of the Board and Chief 1997 $174,350 $ 40,064 150,000
Executive Officer
Peter I. Cittadini...................... 1998 $183,461 $181,576 180,000
President and Chief Operating Officer 1997 $180,000 $ 63,000 40,000
Daniel A. Gaudreau...................... 1998 $181,756 $ 95,209 45,000
Senior Vice President, Finance and 1997 $142,320(1) $ 36,045 125,000
Administration and Chief Financial
Officer
Hamid R. Bahadori....................... 1998 $118,205(2) $ 62,951 165,000
Senior Vice President, Engineering 1997 -- -- --
Albert R. Campa......................... 1998 $132,211 $ 20,343 20,000
Vice President, Marketing 1997 $115,000 $ 26,683 15,000
</TABLE>
- --------
(1) Mr. Gaudreau commenced employment on February 24, 1997.
(2) Mr. Bahadori commenced employment on May 27, 1998.
9
<PAGE>
The following table contains information concerning the stock option grants
made to each of the Named Executive Officers for 1998. No stock appreciation
rights were granted to these individuals during such year.
Option Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Individual Grants
-------------------------------------
Potential Realizable Value at
Number of % of Total Assumed Annual Rates of
Securities Options Stock Price Appreciation for
Underlying Granted to Exercise Option Term (4)
Options Employees in Price Per Expiration ------------------------------
Name Granted (1) Fiscal 1998 (2) Share (3) Date 5% 10%
- ---- ----------- --------------- --------- ---------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Nicolas C. Nierenberg... 100,000 7.6% $14.125 12/10/08 $ 888,314 $ 2,251,161
Peter I. Cittadini...... 40,000 3.0 3.000 2/11/08 75,467 191,249
140,000 10.6 14.125 12/10/08 1,243,639 3,151,626
Daniel A. Gaudreau...... 10,000 * 8.250 5/26/08 51,884 131,484
35,000 2.6 14.125 12/10/08 310,910 787,906
Hamid R. Bahadori....... 150,000 11.3 8.250 5/26/08 778,257 1,972,256
15,000 1.1 14.125 12/10/08 133,247 337,674
Albert R. Campa......... 20,000 1.5 8.250 5/26/08 103,768 262,968
</TABLE>
- --------
* Less than one percent
(1) Such options vest as follows: 1/5 of the shares vest on the first
anniversary of the vesting commencement date and 1/60 of the shares vest
on each monthly anniversary of the vesting commencement date thereafter.
Each of the options has a ten year term, subject to earlier termination in
the event of the optionee's cessation of service with the Company.
(2) Based on an aggregate of 1,324,425 options granted to employees of the
Company during fiscal 1998.
(3) For options granted prior to the Company's initial public offering of its
securities on July 17, 1998, the exercise price is equal to the deemed
fair market value of the Company's Common Stock as estimated by the Board
of Directors on the date of grant. For options granted after the Company's
initial public offering of its securities, the exercise price is equal to
the closing price of the Company's Common Stock as reported on the Nasdaq
Stock Market on the date of grant.
(4) The potential realizable value is calculated based on the term of the
option at the time of grant (ten years). Stock price appreciation and
potential realizable values at 5% and 10% appreciation are calculated in
accordance with Section 402 of Regulation S-K under the Securities Act of
1933, as amended, and do not represent the Company's prediction of its
stock price performance.
10
<PAGE>
The following table sets forth for each of the Named Executive Officers
options exercised during fiscal 1998 and the number and value of securities
underlying unexercised options that are held by the Named Executive Officers
as of December 31, 1998.
Aggregate Option Exercises in Last Fiscal Year and Fiscal Year-End Option
Values
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Number Underlying Unexercised In-the-Money Options
of Shares Value Options at December 31, 1998 at December 31, 1998 (2)
Acquired Realized -------------------------------- -------------------------
Name on Exercise $ (1) Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------- -------- -------------- --------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Nicolas C. Nierenberg... -- -- 150,000 100,000 $2,869,500 $562,500
Peter I. Cittadini...... -- -- 40,000 140,000 $ 670,000 $787,500
Daniel A. Gaudreau...... -- -- 10,000 35,000 $ 115,000 $196,875
Hamid R. Bahadori....... -- -- 150,000 15,000 $1,725,000 $ 84,375
Albert R. Campa......... 8,000 $31,200 20,000 -- $ 230,000 --
</TABLE>
- --------
(1) Equal to the fair market value of the purchased shares on the option
exercise date, less the exercise price paid for such shares.
(2) Based on the fair market value of the Company's Common Stock as of
December 31, 1998 ($19.75 per share), less the exercise price payable for
such shares.
Employment Agreements and Change of Control and Severance Arrangements
Pursuant to an agreement entered into between the Company and Daniel A.
Gaudreau, the Company's Senior Vice President, Finance and Administration and
Chief Financial Officer, upon a merger or acquisition Mr. Gaudreau will
automatically vest in 50% of his remaining unvested options to purchase shares
of the Company's Common Stock. Pursuant to an agreement entered into between
the Company and Hamid Bahadori, the Company's Senior Vice President,
Engineering, if Mr. Bahadori's employment is terminated by the Company within
the first 24 months following May 27, 1998 other than for cause, he will
automatically be vested in options to purchase not less than 60,000 shares of
the Company's Common Stock.
Under the Company's 1998 Equity Incentive Plan, upon a Change in Control,
an award will become fully vested as to all shares subject to such award if
such award is not assumed by the surviving corporation or its parent and the
surviving corporation or its parent does not substitute such award with
another award of substantially the same terms. In the event of an involuntary
termination of a participant within 12 months following a Change in Control,
the vesting of an award will accelerate in full. Options granted under the
1994 Stock Option Plan become fully vested upon a Change in Control unless
assumed or replaced with a comparable option by the acquiring entity.
A Change in Control includes (i) a merger or consolidation of the Company
after which the Company's then current stockholders own less than 50% of the
surviving corporation, (ii) sale of all or substantially all of the assets of
the Company, (ii) a proxy contest that results in replacement of more than one
third of the directors over a 24 month period or (iv) acquisition of 50% or
more of the Company's outstanding stock by a person other than a trustee of
any of the Company's employee benefit plans or a corporation owned by the
stockholders of the Company in substantially the same proportions as their
stock ownership in the Company.
11
<PAGE>
COMPENSATION COMMITTEE REPORT
The Compensation Committee of the Company's Board of Directors (the
"Compensation Committee" or the "Committee") has the exclusive authority to
establish the level of base salary payable to the Chief Executive Officer
("CEO") and certain other executive officers of the Company and to administer
the Company's 1998 Equity Incentive Plan, 1998 Employee Stock Purchase Plan
and 1998 Non-Employee Directors Option Plan. In addition, the Committee has
the responsibility for approving the individual bonus programs to be in effect
for the CEO and certain other executive officers and other key employees each
fiscal year.
For the 1998 fiscal year, the Board of Directors determined executive
officer compensation. The process utilized by the Board in determining
executive officer compensation levels was based on the subjective judgment of
the Board. Among the factors considered by the Board were the recommendations
of the CEO with respect to the compensation of the Company's key executive
officers. However, the Board made the final compensation decisions concerning
such officers.
General Compensation Policy. The Committee's fundamental policy is to offer
the Company's executive officers competitive compensation opportunities based
upon overall Company performance, their individual contribution to the
financial success of the Company and their personal performance. It is the
Committee's objective to have a substantial portion of each officer's
compensation contingent upon the Company's performance, as well as upon his or
her own level of performance. Accordingly, each executive officer's
compensation package consists of: (i) base salary, (ii) cash bonus awards and
(iii) long term stock based incentive awards.
Base Salary. The base salary component of total compensation is primarily
designed to attract, motivate, reward and retain highly skilled executives and
to compensate executives competitively within the industry and the
marketplace. Each individual's base pay is positioned relative to the total
compensation package, including cash incentives and long-term incentives.
Annual Cash Bonuses. Each executive officer has an established cash bonus
target. The annual bonuses for executive officers are distributed on the basis
of the Company's achievement of the financial performance targets established
at the start of the fiscal year and personal objectives established for each
executive. Actual bonuses paid reflect an individual's accomplishment of both
corporate and functional objectives.
Long Term Incentive Compensation. During fiscal 1998, the Board, in its
discretion, made option grants to Messrs. Nierenberg, Cittadini, Gaudreau,
Bahadori and Campa under the Company's 1994 Stock Option Plan and 1998 Equity
Incentive Plan. Generally, a significant grant is made in the year that an
officer commences employment. Thereafter, option grants may be made at varying
times and in varying amounts in the discretion of the Committee. Generally,
the size of each grant is set at a level that the Committee deems appropriate
to create a meaningful opportunity for stock ownership based upon the
individual's position with the Company, the individual's potential for future
responsibility and promotion, the individual's performance in the recent
period and the number of unvested options held by the individual at the time
of the new grant. The relative weight given to each of these factors will vary
from individual to individual at the Committee's discretion. Applying these
principles, a significant grant was made to Mr. Bahadori in connection with
his commencement of employment. In addition, a significant grant was made to
Mr. Cittadini in connection with his promotion to President and Chief
Operating Officer.
Each grant allows the officer to acquire shares of the Company's Common
Stock at a fixed price per share (the market price on the grant date) over a
specified period of time. The option vests in installments over a five year
period, contingent upon the executive officer's continued employment with the
Company. The vesting schedule and the number of option shares granted are
established to ensure a meaningful incentive in each year following the year
of grant. Accordingly, the option will provide a return to the executive
officer only if he or she remains in the Company's employ, and then only if
the market price of the Company's Common Stock appreciates over the option
term.
12
<PAGE>
CEO Compensation. The annual base salary for Mr. Nierenberg, the Company's
Chief Executive Officer, was established by the Board on April 14, 1998. The
Board's decision was made primarily on the basis of Mr. Nierenberg's personal
performance of his duties.
The remaining components of the Chief Executive Officer's 1998 fiscal year
incentive compensation were entirely dependent upon the Company's financial
performance and provided no dollar guarantees. The bonus paid to the Chief
Executive Officer for the fiscal year was based on the same incentive plan for
all other officers. Specifically, a target incentive was established at the
beginning of the fiscal year using an agreed upon formula based on Company
bookings. Each year, the annual incentive plan is reevaluated with a new
achievement threshold and new targets for bookings. The option grant made to
the Chief Executive Officer during the 1998 fiscal year was intended to
reflect his years of service with the Company and to place a significant
portion of Mr. Nierenberg's total compensation at risk, because the bonus will
provide little or no compensation unless Company performance achieves agreed-
upon thresholds and the options will have no value unless there is
appreciation in the value of the Company's Common Stock over the option term.
Tax Limitation. Under the Federal tax laws, a publicly-held company such as
the Company will not be allowed a federal income tax deduction for
compensation paid to certain executive officers to the extent that
compensation exceeds $1 million per officer in any year. To qualify for an
exemption from the $1 million deduction limitation, the stockholders were
asked to approve a limitation under the Company's 1998 Equity Incentive Plan
on the maximum number of shares of Common Stock for which any one participant
may be granted stock options per calendar year. Because this limitation was
adopted, any compensation deemed paid to an executive officer when he
exercises an outstanding option under the 1998 Equity Incentive Plan with an
exercise price equal to the fair market value of the option shares on the
grant date will qualify as performance based compensation that will not be
subject to the $1 million limitation. Since it is not expected that the cash
compensation to be paid to the Company's executive officers for the 1999
fiscal year will exceed the $1 million limit per officer, the Committee will
defer any decision on whether to limit the dollar amount of all other
compensation payable to the Company's executive officers to the $1 million
cap.
COMPENSATION COMMITTEE
James W. Breyer
Steven D. Whiteman
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of the Company's Board of Directors was formed
in July 1998, and the members of the Compensation Committee are Messrs. Breyer
and Whiteman. Neither of these individuals was at any time during 1998, or at
any other time, an officer or employee of the Company. No executive officer of
the Company serves as a member of the board of directors or compensation
committee of any entity that has one or more executive officers serving as a
member of the Company's Board of Directors or Compensation Committee.
13
<PAGE>
STOCK PERFORMANCE GRAPH
The graph set forth below compares the cumulative total stockholder return
on the Company's Common Stock between July 17, 1998 (the date the Company's
Common Stock commenced public trading) and December 31, 1998 with the
cumulative total return of (i) the Nasdaq Stock Market (U.S.) Index and (ii)
the Hambrecht & Quist Computer Software Index, over the same period. This
graph assumes the investment of $100.00 on July 17, 1998 in the Company's
Common Stock, the Nasdaq Stock Market (U.S.) Index and the Hambrecht & Quist
Computer Software Index, and assumes the reinvestment of dividends, if any.
Comparison of Cumulative Total Return on Investment Since July 17, 1998
<TABLE>
--------------------------------------------------------------------------
<CAPTION>
Cumulative Total Return
--------------------------
7/17/98 12/31/98
----------- ------------
<S> <C> <C>
ACTUATE SOFTWARE CORPORATION................. $100 $180
NASDAQ STOCK MARKET (U.S.)................... 100 111
HAMBRECHT & QUIST COMPUTER SOFTWARE.......... 100 95
--------------------------------------------------------------------------
</TABLE>
The Company effected its initial public offering of Common Stock on July
17, 1998 at a price of $11.00 per share. The closing stock price on December
31, 1998, was $19.75.
The comparisons shown in the graph are based upon historical data. The
Company cautions that the stock price performance shown in the graph below is
not indicative of, nor intended to forecast, the potential future performance
of the Company's Common Stock.
Notwithstanding anything to the contrary set forth in any of the Company's
previous or future filings under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, that might incorporate this
Proxy Statement or future filings made by the Company under those statutes,
the Compensation Committee Report and Stock Performance Graph shall not be
deemed filed with the Securities and Exchange Commission and shall not be
deemed incorporated by reference into any of those prior filings or into any
future filings made by the Company under those statutes.
14
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In 1996, the Company made an equity investment of approximately $95,000 in
Actuate Japan. This represented approximately 8.3% of the outstanding voting
stock of Actuate Japan. During 1996, the Company loaned a total of $160,000 to
Actuate Japan. An additional $100,000 was loaned in 1997. In August 1998, the
Company acquired the Japanese version of the Actuate Reporting system and the
Japanese trademark "Actuate" from Actuate Japan at a cost of $350,000. In
September 1998, the Company entered into an agreement which amended the
payment terms of the outstanding Actuate Japan loans.
The Company has also entered into an agreement with Actuate Japan pursuant
to which Actuate Japan has the exclusive right (other than with respect to
value added resellers who are or will be granted worldwide distribution
rights) to distribute the Company's Products and use the Company's name in
Japan, in exchange for a 50% royalty on sales of the Company products by
Actuate Japan. The Company has a right of first refusal on any transfer of the
outstanding shares of Actuate Japan. In addition, beginning in April 1999,
Actuate Japan has the right to cause the Company to buy all of its outstanding
shares, and the Company has the right to cause the other stockholders of
Actuate Japan to sell their shares to the Company, in each case pursuant to an
pre-determined price formula, in exchange for (at the election of the Company)
cash, securities of the Company or through a continuing royalty offset over a
30 month period.
The Company has entered into an agreement (the "BV Agreement") with
Telephus Vastgoed B.V. (the "BV"), pursuant to which the BV has established
subsidiaries in France, Germany and the United Kingdom (the "BV
Subsidiaries"). The Company has entered into agreements with each of the BV
Subsidiaries under which the BV Subsidiaries have the exclusive right (other
than with respect to value added resellers who have been or will be granted
worldwide distribution rights) to distribute the Company's products and use
the Company's name in Belgium, France, Germany, Switzerland and the United
Kingdom, in exchange for a 50% royalty on sales of the Company's products by
the BV Subsidiaries. Currently, the BV may force the Company to purchase its
outstanding shares at a price approximately equal to its last twelve months'
revenues. The purchase price may be paid, at the Company's option, in cash, or
in registered shares of the Company's Common Stock. The Company has a right of
first refusal on any transfer of ownership interest in the BV and, beginning
on July 1, 1999, the Company has the right to cause the stockholders of the BV
to sell all of the outstanding shares of the BV to the Company based on the
above pricing formula. In the event that the Company fails to purchase the BV
upon the request of the BV stockholders, or fails to exercise its right of
first refusal, the licenses held by the BV Subsidiaries will become perpetual
and royalty free.
The Company has entered into letter agreements with certain of its officers
that provide for the acceleration of vesting of shares held by them under
certain circumstances.
The Company's Bylaws provide that the Company shall indemnify its directors
and officers to the fullest extent permitted by Delaware law, including in
circumstances in which indemnification is otherwise discretionary under
Delaware law. The Company's Certificate of Incorporation limits the liability
of its directors for monetary damages arising from a breach of their fiduciary
duty as directors, except to the extent otherwise required by the Delaware
General Corporation Law. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief or rescission.
The Company has entered into indemnification agreements with its directors
containing provisions that may require the Company, among other things, to
indemnify such directors against certain liabilities that may arise by reason
of their status or service as directors (other than liabilities arising from
willful misconduct of a culpable nature) and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified. The Company also maintains insurance policies covering officers
and directors under which the insurers agree to pay, subject to certain
exclusions, for any claim made against the directors and officers of the
Company for a wrongful act that they may become legally obligated to pay for
or for which the Company is required to indemnify the officers or directors.
15
<PAGE>
STOCKHOLDER PROPOSALS FOR 2000 ANNUAL MEETING
Proposals of stockholders intended to be presented at the 2000 Annual
Meeting of Shareholders of the Company must be received by the Company at its
offices at 999 Baker Way, Suite 200, San Mateo, California 94404, Attn:
William P. Garvey, General Counsel and Secretary, not later than December 16,
1999 and satisfy the conditions established by the Securities and Exchange
Commission for holder proposals to be included in the Company's proxy
statement for that meeting. Pursuant to new amendments to Rule 14a-4(c) of the
Securities Exchange Act of 1934, as amended, a stockholder proposal intended
to be presented at the 2000 Annual Meeting of Shareholders of the Company must
be received by the Company at its offices at 999 Baker Way, Suite 200, San
Mateo, California 94404, Attn: William P. Garvey, General Counsel and
Secretary, not later than March 1, 2000 in order for proxy holders to be
allowed to use their discretionary voting authority to vote on such proposal
when the proposal is raised at the 2000 Annual Meeting of Stockholders, even
through there is no discussion of such proposal in the Company's proxy
statement for that meeting.
OTHER MATTERS
The Board knows of no other matters to be presented for stockholder action
at the Annual Meeting. However, if other matters do properly come before the
Annual Meeting or any adjournments or postponements thereof, the Board intends
that the persons named in the proxies will vote upon such matters in
accordance with their best judgment.
The Company will mail without charge, upon written request, a copy of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1998. Requests should be sent to Actuate Software Corporation, 999 Baker Way,
Suite 200, San Mateo, California 94404, Attn: Investor Relations.
BY ORDER OF THE BOARD OF DIRECTORS,
/s/ Nicolas C. Nierenberg
Nicolas C. Nierenberg
Chairman of the Board and Chief
Executive Officer
San Mateo, California
April 15, 1999
WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, PLEASE COMPLETE,
SIGN, DATE AND PROMPTLY RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED
POSTAGE-PAID ENVELOPE. YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO THE
ANNUAL MEETING. iF YOU DECIDE TO ATTEND THE aNNUAL mEETING AND WISH TO
CHANGE YOUR PROXY VOTE, YOU MAY DO SO AUTOMATICALLY BY VOTING IN PERSON AT
THE MEETING.
THANK YOU FOR YOUR ATTENTION TO THIS MATTER. YOUR PROMPT RESPONSE WILL
GREATLY FACILITATE ARRANGEMENTS FOR THE ANNUAL MEETING.
16
<PAGE>
EXHIBIT A
CERTIFICATE OF AMENDMENT OF THE
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
ACTUATE SOFTWARE CORPORATION
Actuate Software Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: The name of this Corporation is Actuate Software Corporation
SECOND: The date on which the Certificate of Incorporation of this
Corporation was originally filed with the Secretary of State of the State of
Delaware is May 26, 1998, under the name "Actuate Software Corporation."
THIRD: That the Board of Directors adopted a resolution setting forth a
proposed amendment to the Second Amended and Restated Certificate of
Incorporation of said Corporation and declaring said amendment advisable and
directing that said amendment be submitted to the stockholders of said
Corporation entitled to vote in respect thereof for their approval. The
resolution setting forth said amendment is as follows:
RESOLVED, that the Second Amended and Restated Certificate of Incorporation
of the Corporation be amended by replacing Article I thereof so that such
article shall be and read as follows:
"The name of this corporation is Actuate Corporation"
FOURTH: That thereafter said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law by obtaining a
majority vote of the Common Stock in favor of said amendment in the manner set
forth in Section 222 of the General Corporation Law.
IN WITNESS WHEREOF, this Certificate of Amendment of the Second Amended and
Restated Certificate of Incorporation has been signed by the Chief Executive
Officer and the Secretary of the Corporation this day of May, 1999.
ACTUATE SOFTWARE CORPORATION
By:
-----------------------------------
Nicolas C. Nierenberg, Chief
Executive Officer
ATTEST:
By:
-----------------------------------
William P. Garvey, Secretary
<PAGE>
1791-PS-99
<PAGE>
PROXY ACTUATE SOFTWARE CORPORATION PROXY
999 Baker Way, San Mateo, CA 94404
This Proxy is Solicited on Behalf of the Board of Directors of Actuate Software
Corporation for the Annual Meeting of Stockholders to be held May 20, 1999
The undersigned holder of Common Stock, par value $0.001, of Actuate
Software Corporation (the "Company") hereby appoints Nicolas C. Nierenberg and
Daniel A. Gaudreau, or either of them, proxies for the undersigned, each with
full power of substitution, to represent and to vote as specified in this Proxy
all Common Stock of the Company that the undersigned stockholder would be
entitled to vote if personally present at the Annual Meeting of Stockholders
(the "Annual Meeting") to be held on Thursday May 20th, 1999 at 9:00 a.m. local
time, at the Company's principal executive offices located at 999 Baker Way,
Suite 200, San Mateo, California, and at any adjournments or postponements of
the Annual Meeting. The undersigned stockholder hereby revokes any proxy or
proxies heretofore executed for such matters.
This proxy, when properly executed, will be voted in the manner as directed
herein by the undersigned stockholder. IF NO DIRECTION IS MADE, THIS PROXY WILL
BE VOTED FOR THE ELECTION OF THE DIRECTORS, FOR PROPOSALS 2 AND 3, AND IN THE
DISCRETION OF THE PROXIES AS TO ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE
THE MEETING. 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 Annual Meeting and voting in person.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF THE
DIRECTORS AND "FOR" PROPOSALS 2 AND 3.
PLEASE MARK, SIGN, DATE AND RETURN THIS CARD PROMPTLY USING THE ENCLOSED
RETURN ENVELOPE. If you receive more than one proxy card, please sign and return
ALL cards in the enclosed envelope.
(CONTINUED AND TO BE SIGNED ON REVERSE SIDE)
(Reverse)
ACTUATE SOFTWARE CORPORATION
[_] Please mark votes
as in this example
<TABLE>
<S> <C>
1. To elect the following directors to 2. To approve the amendment to the FOR AGAINST ABSTAIN
serve for a term ending upon the 2000 Company's Second Amended and Restated [_] [_] [_]
Annual Meeting of Stockholders or Certificate of Incorporation as set
until their successors are elected forth in the accompanying Proxy
and qualified: Statement.
Nominees: Nicolas C. Nierenberg, Peter I. 3. To ratify the appointment of Ernst & FOR AGAINST ABSTAIN
Cittadini, James W. Breyer, Arthur C. Young LLP, Independent Auditors as the [_] [_] [_]
Patterson, Nancy J. Schoendorf and Steven Company's independent public accountants
D. Whiteman for the fiscal year ending December 31,
1999.
FOR WITHHELD For all nominees,
except for nominees
written below.
[_] [_] [_]
_____________________
Nominee exception(s).
In their discretion, the proxies are authorized to vote upon such other
business as may properly come before the Annual Meeting.
The undersigned acknowledges receipt of the accompanying Notice of Annual Meeting of Stockholders and Proxy Statement.
Signature: ______________________ Signature (if held jointly): ______________________ Date:____________, 1999
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.
</TABLE>
