<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:
[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 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:
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(4) Date Filed:
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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,
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.
<PAGE>
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 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
3
<PAGE>
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.
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
4
<PAGE>
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 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.
5
<PAGE>
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.
Albert R. Campa, age 37, joined the Company in November of 1995 as Vice
President, Marketing. From February 1990 to October 1995, Mr. Campa held a
number of positions at Sybase, Inc., a database software company, including
Group Director of Worldwide Field Marketing where he was responsible for lead
generation, vertical marketing, regional marketing and a variety of other sales
and marketing activities. From September 1987 to February 1990, Mr. Campa held
a number of product and marketing management positions at Sun Microsystems, Inc.
From September 1983 to March 1985, Mr. Campa was a design engineer in IBM's
mainframe development group. Mr. Campa holds a B.S. in Mechanical Engineering
from Stanford University and an M.B.A. from Harvard Business School.
6
<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.
7
<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)
------------------------------------------------
Name of Beneficial Owner Number of Shares Percentage of 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%
8
<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.
9
<PAGE>
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.
10
<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
Compensation
Awards
------
Number of
Annual Compensation 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 1997 $174,350 $ 40,064 150,000
Chief Executive Officer
Peter I. Cittadini.................... 1998 $183,461 $181,576 180,000
President and Chief 1997 $180,000 $ 63,000 40,000
Operating Officer
Daniel A. Gaudreau.................... 1998 $181,756 $ 95,209 45,000
Senior Vice President, 1997 $142,320(1) $ 36,045 125,000
Finance and Administration and
Chief Financial Officer
Hamid R. Bahadori..................... 1998 $118,205(2) $ 62,951 165,000
Senior Vice President, 1997 -- -- --
Engineering
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.
11
<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 Assumed
% of Total Annual Rates of
Number of Options Stock Price
Securities Granted to Appreciation
Underlying Employees Exercise for Option Term (4)
Options in Fiscal Price Expiration ---------------------
Name Granted (1) 1998 (2) Per 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.
12
<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
Underlying Value of Unexercised
Number of Unexercised Options at In-the-Money Options at
Shares Value December 31, 1998 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.
13
<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.
14
<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.
15
<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
[PERFORMANCE GRAPH APPEARS HERE]
Cumulative Total Return
-----------------------
7/17/98 12/31/98
---------- ----------
ACTUATE SOFTWARE CORPORATION..................... 100 180
NASDAQ STOCK MARKET (U.S.)....................... 100 111
HAMBRECHT & QUIST COMPUTER SOFTWARE.............. 100 95
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
16
<PAGE>
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.
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
17
<PAGE>
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.
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.
18
<PAGE>
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,
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.
- --------------------------------------------------------------------------------
19
<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>
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>
