Actuate Corporation Shareholder Litigation
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Welcome to the Actuate Corporation Shareholder Litigation Website

This website has been established to provide general information regarding the Actuate Corporation ("Actuate") Shareholder Litigation. The capitalized terms used on this website and not defined herein shall have the same meanings ascribed to them in the Stipulation and Agreement of Compromise, Settlement and Release (the "Stipulation") executed June 19, 2015.

This case is currently pending before Judge Donald F Parsons in the Delaware Court of Chancery (the “Court”).

For settlement purposes only, the Parties stipulate and agree that the Action shall be certified as a non-opt-out class pursuant to Delaware Court of Chancery Rules 23(a) and 23(b)(1,2), consisting of any and all persons who held shares of stock of Actuate (excluding any Defendants in the Action and their immediate family members, any entity controlled by any of the Defendants, and any successors in interest thereto) at any time during the period from and including December 5, 2014 through January 16, 2015 (the “Class”).

On December 5, 2014, Open Text Corporation (“OpenText”) and Actuate announced that they had entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among OpenText, its wholly-owned subsidiary, Asteroid Acquisition Corporation (“Asteroid”), and Actuate, pursuant to which Asteroid would commence a tender offer to purchase all of the issued and outstanding shares of Actuate common stock at a price of $6.60 per share, net to the seller in cash, without interest and, if the tender offer were successful, Actuate would thereafter merge with and into Asteroid, with Asteroid continuing as the surviving corporation and a subsidiary of OpenText (the “Transaction”).

On December 16, 2014, Asteroid and OpenText jointly filed a Schedule TO in connection with the Transaction with the Securities and Exchange Commission (the “SEC”), and Actuate filed a Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”).

On December 17, 2014, a class action complaint was filed in the Court captioned Lax v. Actuate, Inc., et al., C.A. No. 10467-VCP (the “Action”), asserting claims against the members of Actuate’s board of directors (the “Individual Defendants”), Actuate (together with the Individual Defendants, the “Actuate Defendants”), OpenText and Asteroid (together with OpenText, the “OpenText Defendants,” and collectively with the Actuate Defendants, the “Defendants”).

On December 18, 2014, Actuate filed Amendment No. 1 to the Schedule 14D-9 with the SEC.

On December 22, 2014, Actuate filed Amendment No. 2 to the Schedule 14D-9 with the SEC.

On December 29, 2014, Plaintiff in the Action filed an Amended Verified Class Action Complaint (the “Amended Complaint”) in the Action.

The Amended Complaint asserted claims that the Individual Defendants, aided and abetted by the OpenText Defendants, breached their fiduciary duties to Actuate stockholders in connection with the Transaction and that the Schedule 14D-9 failed to disclose certain material information to Actuate stockholders in connection with the Transaction.

On January 1, 2015, Actuate voluntarily produced documents to Plaintiff, including internal, non-public documents of Actuate and Actuate’s financial advisor, Morgan Stanley & Co. LLC.

On January 2, 2015, Actuate filed Amendment No. 3 to the Schedule 14D-9 with the SEC.

On January 3, 2015, Plaintiff submitted a settlement demand to Actuate.

Beginning on January 7, 2015, counsel to the parties in the Action began to negotiate the terms of a settlement of the Action, the basis of which was the inclusion of additional disclosures in an amendment to Actuate’s Schedule 14D-9.

After arm’s-length negotiations, counsel to the parties in the Action reached an agreement-in-principle concerning the proposed settlement of the Action. Those extensive negotiations and discussions led to the execution of a memorandum of understanding (the “MOU”) on January 9, 2015. The MOU provided for an agreement in principle to settle the Action (the “Settlement”), subject to additional confirmatory discovery and approval of the court, on the basis of the inclusion of additional disclosures in Amendment No. 4 to the Schedule 14D-9, in the form attached hereto as Exhibit A, that was filed with the SEC on January 9, 2015 concerning subject areas raised by Plaintiff’s Counsel.

On January 9, 2015 the parties notified the Court of the execution of the MOU and provided a copy of the MOU and Exhibit A to the Court.

Following the execution of the MOU, and as contemplated therein, Plaintiff’s Counsel conducted a further investigation of the facts and circumstances underlying the claims asserted in the Action, which included, among other things, additional document discovery, and the depositions of Steven Whiteman, who was a Director of Actuate from April of 1998 until the Transaction was completed, and Erik Marth, Executive Director at Morgan Stanley & Co. LLC, Actuate’s financial advisor.

On the basis of information available to them, including publicly available information, discovery provided to them during expedited discovery, and the additional confirmatory discovery described herein, Plaintiff’s Counsel has determined that the Settlement described herein is fair, reasonable, adequate, and in the best interests of Plaintiff and the Class (as defined herein).

On June 19, 2015, the Court entered a scheduling order providing for, among other things, the scheduling of the Settlement Hearing; a stay of the Actions pending a hearing on the Settlement; preliminary certification of the Class; and an injunction against the commencement or prosecution of any action by any member of the Class asserting any of the claims subject to the Settlement of the Actions.

In consideration for the Settlement and dismissal with prejudice of the Action and releases described herein, Defendants agreed to provide, and did provide, additional disclosures in Amendment No. 4 to the Schedule 14D-9 concerning the Transaction, including the events leading up to the execution of the Merger Agreement, and the valuation analysis conducted by Actuate’s financial advisor, which was filed with the SEC on January 9, 2015, and is attached hereto as Exhibit A and is available here.

Although the information in this website is intended to assist you, it does not replace the information contained in the Notice of Pendency of Class Action, Proposed Settlement and Settlement Hearing which can be found and downloaded by clicking on the Case Documents tab above. We recommend that you read the Notice and other relevant case documents carefully.