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 (S)240.14a-11(c) or (S)240.14a-12
ADVENT SOFTWARE, INC.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(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):
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
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(4) Date Filed:
Notes:
[ADVENT LOGO]
April 4, 2000
Dear Advent Shareholders,
Advent's 2000 Annual Meeting of Stockholders will be held on Thursday, May 4,
2000 at 10:00 am at our corporate offices, located at 301 Brannan Street, San
Francisco, California 94107. We look forward to your attending either in person
or by proxy. The Notice of Annual Meeting, the Proxy Statement and the Proxy
Card from the Board of Directors are enclosed. These materials provide further
information concerning the Annual Meeting.
Since our last Annual Meeting we have split our stock twice, a three-for-two
stock split in July 1999 and a two-for-one in February 2000. These stock splits
had the effect of using a significant majority of our authorized Common Stock
since stock split are effected in the form of share dividends under Delaware
Corporate law. Therefore, we are proposing to increase the number of authorized
shares. The share increase will reestablish approximately the same proportion of
authorized shares to issued shares that existed prior to our stock splits. The
Board of Directors recommends that you vote FOR the increase in the number of
authorized shares of Common Stock.
Another item for consideration at our Annual Meeting is an increase in the
number of shares available under our Directors' Option Plan. As we continue to
grow and expand our operations we may also expand our board of directors by
adding individuals who have relevant industry experience. This share increase
will give us the ability to attract high quality industry experts to join our
board and to retain our current board members. The Board of Directors recommends
that you vote FOR the increase in the shares reserved for issuance under the
Directors' Option Plan.
The final two agenda items at this year's Annual Meeting include the annual
election of directors and the annual proposal to ratify the appointment of our
independent auditing firm. The Board of Directors recommends that you vote FOR
the election of the slate of nominees for directors and FOR ratification of the
appointment of the independent auditors.
Sincerely yours,
Irv H. Lichtenwald
Secretary
ADVENT SOFTWARE, INC.
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on May 4, 2000
TO THE STOCKHOLDERS:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of
Advent Software, Inc., a Delaware corporation (the "Company"), will be held on
Thursday, May 4, 2000 at 10:00 a.m., local time, at its corporate offices,
located at 301 Brannan Street, San Francisco, California 94107, for the
following purposes:
1. To elect directors to serve for the ensuing year and until their
successors are duly elected and qualified.
2. To approve an amendment to the Company's Certificate of Incorporation
to increase the number of authorized shares of Common Stock of the
Company from 40,000,000 to 120,000,000.
3. To approve an amendment of the Company's 1995 Directors' Option Plan
providing for an increase in the number of shares of Common Stock
reserved for issuance thereunder by 200,000 shares.
4. To ratify the appointment of PricewaterhouseCoopers LLP as independent
accountants for the Company for the fiscal year ending
December 31, 2000.
5. To transact such other business as may properly come before the meeting
or any adjournment thereof.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice.
Only stockholders of record at the close of business on March 15, 2000
are entitled to notice of and to vote at the Annual Meeting.
All stockholders are cordially invited to attend the Annual Meeting in
person. However, to assure your representation at the Annual Meeting, you are
urged to sign and return the enclosed proxy as promptly as possible in the
postage-prepaid envelope enclosed for that purpose. Any stockholder attending
the Annual Meeting may vote in person even if he or she has returned a proxy.
Irv H. Lichtenwald
Secretary
San Francisco, California
April 4, 2000
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WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, YOU ARE REQUESTED TO COMPLETE
AND PROMPTLY RETURN THE ENCLOSED PROXY IN THE ENVELOPE PROVIDED.
================================================================================
ADVENT SOFTWARE, INC.
PROXY STATEMENT
FOR ANNUAL MEETING OF STOCKHOLDERS
PROCEDURAL MATTERS
GENERAL
The enclosed Proxy is solicited on behalf of Advent Software, Inc. (the
"Company") for use at the Annual Meeting of Stockholders to be held on Thursday,
May 4, 2000 at 10:00 a.m., local time, and at any adjournment thereof, for the
purposes set forth herein and in the accompanying Notice of Annual Meeting of
Stockholders.
The Annual Meeting will be held at the Company's corporate offices at 301
Brannan Street, San Francisco, California 94107. The Company's telephone number
is (415) 543-7696.
These proxy solicitation materials were mailed on or about April 4, 2000,
together with the Company's 1999 Annual Report to Stockholders, to all
stockholders entitled to vote at the meeting.
Advent's Board of Directors approved a three-for-two stock split of the
Company's Common Stock in July 1999 and a two-for-one stock split of the
Company's Common Stock in February 2000. Both stock splits were effected as a
stock dividend. All shares and per share data in this proxy statement have been
adjusted to reflect both stock dividends.
RECORD DATE
Stockholders of record at the close of business on March 15, 2000 (the
"Record Date") are entitled to notice of and to vote at the Annual Meeting. As
of the Record Date, approximately 29.5 million shares of the Company's common
stock, $.01 par value (the "Common Stock"), were issued and outstanding. For
information regarding security ownership by management and by the beneficial
owners of more than 5% of the Company's Common Stock, see "Beneficial Security
Ownership of Management and Certain Beneficial Owners."
REVOCABILITY OF PROXIES
Any proxy given pursuant to this solicitation may be revoked by the person
giving it at any time before its use by delivering to the Secretary of the
Company a written notice of revocation or a duly executed proxy bearing a later
date or by attending the meeting and voting in person.
VOTING AND SOLICITATION
Each stockholder is entitled to one vote for each share of Common Stock on
all matters presented at the Annual Meeting. Stockholders do not have the right
to cumulate their votes in the election of directors.
The cost of soliciting proxies will be borne by the Company. In addition,
the Company may reimburse brokerage firms and other persons representing
beneficial owners of shares for their expenses in
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forwarding solicitation materials to such beneficial owners. Proxies may also be
solicited by certain of the Company's directors, officers and regular employees,
without additional compensation, personally or by telephone, telegram, letter,
electronic mail, or facsimile.
QUORUM; ABSTENTIONS; BROKER NON-VOTES
The presence, in person or by proxy, of the holders of a majority of the
shares entitled to be voted at the Annual Meeting is necessary to constitute a
quorum at the Annual Meeting. A plurality of the votes duly cast is required for
the election of directors. The affirmative vote of a majority of the votes duly
cast is required to amend the Director Option Plan and to ratify the appointment
of auditors. The affirmative vote of the outstanding stock of the corporation
entitled to vote on the matter is required to amend the Certificate of
Incorporation.
Under the General Corporation Law of the State of Delaware, an abstaining
vote and broker "non-vote" are counted as present and entitled to vote and are,
therefore, included for the purposes of determining whether a quorum of shares
is present at a meeting. Neither abstentions nor broker "non-votes" effect the
election of directors as the votes required is a plurality of the votes duly
cast. Abstaining votes and broker "non-votes" are not deemed to be "votes cast."
As a result, while abstentions are deemed to be "votes cast" and will have the
effect of votes in opposition of any given proposal, broker "non-votes" are not
included in the tabulation of the voting results on issues requiring the
approval of a majority of the votes cast. They therefore do not have the effect
of votes in opposition in such tabulations. However in the case of the amendment
of the Certificate of Incorporation, broker "non-votes" will have the same
effect as votes against the proposal since the affirmative vote of the
outstanding stock of the corporation entitled to vote on the matter is required
to amend the Certificate of Incorporation.
A broker "non-vote" occurs when a nominee holding shares for a beneficial
owner does not vote on a particular proposal because the nominee does not have
discretionary voting power with respect to that item and has not received
instructions from the beneficial owner.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
Proposals of stockholders of the Company which are intended to be presented
by such stockholders at the Company's 2001 Annual Meeting of Stockholders must
be received by the Company no later than December 5, 2000 in order to be
considered for inclusion in the proxy statement and form of proxy relating to
that meeting.
PROPOSAL NO. 1
ELECTION OF DIRECTORS
NOMINEES
The Company's Bylaws authorize a Board of six directors. A board of six
directors is to be elected at the Annual Meeting. Unless otherwise instructed,
the proxy holders will vote the proxies received by them for the Company's six
nominees named below. In the event that any nominee of the Company 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 shall be designated by the present Board of
Directors to fill the vacancy. It is not expected that any nominee will be
unable or will decline to serve as a director. The term of office of each person
elected as a director will continue until the next Annual Meeting of
Stockholders or until a successor has been elected and qualified.
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The name of and certain information regarding each nominee are set forth
below.
Name Age(1) Principal Occupation
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Stephanie G. DiMarco............. 42 Chairman of the Board
Peter M. Caswell................. 43 President and Chief Executive Officer
Frank H. Robinson................ 56 Management Consultant
Wendell G. Van Auken............. 55 General Partner, Mayfield Fund
William F. Zuendt................ 53 President and Chief Operating Officer
(Retired), Wells Fargo and Company
Monte Zweben..................... 36 Chief Executive Officer, Blue Martini
Software
(1) As of the record date, March 15, 2000
Ms. DiMarco founded Advent in June 1983. She became Chairman of the Board
in November 1995. In addition, she served as President until April 1997 and
Chief Executive Officer until November 1999. Ms. DiMarco holds a B.S. in
Business Administration from the University of California at Berkeley.
Mr. Caswell joined Advent in December 1993 as Vice President, Sales and
Professional Services. In 1996 Mr. Caswell took on responsibility for Advent's
marketing efforts and was promoted to Senior Vice President. In April 1997, Mr.
Caswell became President and Chief Operating Officer. In November 1999 Mr.
Caswell was promoted to President and Chief Executive Officer and elected to our
Board of Directors. Prior to joining Advent, Mr. Caswell held various management
positions, including Vice President and General Manager, Western Region, with
Dun & Bradstreet Software Services, Inc. and its predecessor, Management Science
America, Inc., a supplier of computer software for finance, marketing,
manufacturing and human resource functions. Mr. Caswell holds a diploma in
Management Studies (M.B.A. equivalent) and a Higher National Diploma in
Agriculture (B.S. equivalent) from Seale Hayne College in England.
Mr. Robinson has been a director of Advent since February 1985. Since 1982,
Mr. Robinson has been a management consultant specializing in the development of
technology-based products and services. Mr. Robinson holds an M.B.A. and a B.A.
in Physics from the State University of New York at Buffalo.
Mr. Van Auken has been a director of Advent since September 1995. Mr. Van
Auken has been a general partner of Mayfield Fund, a venture capital firm, since
October 1986. Mr. Van Auken holds an M.B.A. from Stanford University and a
B.E.E. from Rensselaer Polytechnic Institute. Mr. Van Auken is a director of
Montgomery Street Income Securities, Inc., an investment company.
Mr. Zuendt became a director in August 1997. Mr. Zuendt retired as
president and chief operating officer of Wells Fargo & Company and its principal
subsidiary, Wells Fargo Bank, in 1997. Mr. Zuendt joined Wells Fargo in 1973
with responsibility for its computer systems and operations. Throughout the
1980's he directed Wells Fargo's retail banking business and was elected
president in 1994. Mr. Zuendt earned a B.S. degree in mathematics from
Rensselaer Polytechnic Institute and an MBA degree from Stanford University. Mr.
Zuendt is a director of 3Com Corporation, a global data networking company, and
Be, Inc., a software platform provider for media rich Internet appliance
applications.
Mr. Zweben became a director in November 1997. He has served as Chief
Executive Officer of Blue Martini Software, a leading provider of Internet
merchandising solutions, since June 1998. Mr. Zweben founded Red Pepper Software
in 1992 and served as Chief Executive Officer, President and Chairman until its
$250 million merger with PeopleSoft in September of 1996. Mr. Zweben received an
M.S. degree in Computer Science and Industrial Management at Carnegie-Mellon
University.
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BOARD MEETINGS AND COMMITTEES
The Board of Directors held a total of six meetings (including regularly
scheduled and special meetings) during fiscal 1999. No incumbent director during
the last fiscal year, while a member of the Board of Directors, attended fewer
than 75% of (i) the total number of meetings of the Board of Directors or (ii)
the total number of meetings held by all committees on which such director
served.
The Board of Directors of the Company has two standing committees: an Audit
Committee and a Compensation Committee. It does not have a nominating committee
or a committee performing the functions of a nominating committee.
The Audit Committee, which currently consists of Messrs. Zuendt and Van
Auken, is responsible for (i) recommending engagement of the Company's
independent auditors, (ii) approving the services performed by such auditors,
(iii) consulting with such auditors and reviewing with them the results of their
examination, (iv) reviewing and approving any material accounting policy changes
affecting the Company's operating results, (v) reviewing the Company's control
procedures and personnel, and (vi) reviewing and evaluating the Company's
accounting principles and its system of internal accounting controls. The Audit
Committee held one meeting during fiscal 1999.
The Compensation Committee, which currently consists of Messrs. Robinson
and Zweben, is responsible for (i) reviewing and approving the compensation and
benefits for the Company's officers and other employees, (ii) administering the
Company's stock purchase and stock option plans, and (iii) making
recommendations to the Board of Directors regarding such matters. The
Compensation Committee held one meeting during fiscal 1999.
COMPENSATION OF DIRECTORS
Directors who are employees of the Company do not receive additional
compensation for their services as directors of the Company. However,
nonemployee members of the Board of Directors receive an annual cash retainer of
$5,000 and $1,250 for attendance at each meeting of the Board of Directors or
any committee thereof.
In addition, nonemployee directors participate in the Company's 1995
Director Option Plan (the "Director Plan"). The Director Plan was approved by
the Board in October 1995 and was ratified by stockholders in November 1995, at
which time a total of 225,000 shares of Common Stock were reserved for issuance
thereunder. As of March 15, 2000, there were 192,000 options outstanding under
the Director Plan. The Director Plan became effective on the date of the
Company's initial public offering on November 15, 1995, and is currently
administered by the Board of Directors. Under the Director Plan, each
nonemployee director is automatically granted a non-qualified option to purchase
30,000 shares on the date upon which such person first becomes a director (the
"Initial Option") with an exercise price equal to the fair market value of the
Company's Common Stock as of the date of grant. Thereafter, each nonemployee
director is automatically granted an option to purchase 6,000 shares of Common
Stock on December 1st of each year, except in the year the Director Plan was
adopted ("Subsequent Option"), provided he or she has served as a director for
at least six months as of such date.
Options granted under the Director Plan have a term of ten years unless
terminated sooner upon termination of the optionee's status as a director or
otherwise pursuant to the Director Plan. Such options are transferable by the
optionee only in certain limited circumstances and each option is exercisable
during the lifetime of the director only by such director or a permitted
transferee. Initial Options granted under the Director Plan vest as to one-fifth
(1/5) of the shares on the first anniversary date of grant and as to the
remaining shares, ratably each month over the ensuing four years. Subsequent
Options begin to
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vest on the fourth anniversary of the date of grant and vest ratably each month
over the next 12 month period. The Director Plan is designed to work
automatically, without administration; however, to the extent administration is
necessary, the Director Plan has been structured so that options granted to
non-employee directors who administer the Company's other employee benefit plans
shall qualify as transactions exempt from Section 16(b) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), pursuant to Rule 16b-3
promulgated thereunder.
REQUIRED VOTE
The six nominees receiving the highest number of affirmative votes of the
shares present or represented and entitled to be voted for them shall be elected
as directors, whether or not such affirmative votes constitute a majority of the
shares voted. Votes withheld from any director are counted for purposes of
determining the presence or absence of a quorum for the transaction of business,
but they have no legal effect under Delaware law.
MANAGEMENT RECOMMENDS A VOTE FOR THE NOMINEES LISTED ABOVE.
PROPOSAL NO. 2
APPROVAL OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION
TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
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 increase the number of authorized shares of Common Stock of the
Company from 40,000,000 to 120,000,000 (the "Amendment"). Accordingly, the Board
of Directors has unanimously approved the Amendment and hereby solicits the
approval of the Company's stockholders of the Amendment. If the Amendment is
adopted by the stockholders, it will become effective upon filing of a
Certificate of Amendment of the Company's Certificate of Incorporation in
substantially the form attached hereto Exhibit A, with the Secretary of State of
the State of Delaware.
As of March 15, 2000, the Company has 40 million authorized shares of
Common Stock. Of this authorized number, approximately 29.5 million shares were
outstanding and approximately 8.8 million shares were reserved for issuance
under the Company's equity compensation plans, leaving approximately 1.7 million
shares unreserved, unissued and available for issuance.
PURPOSE AND EFFECT OF THE AMENDMENT
The principal purpose of the proposal to authorize additional shares of
Common Stock is to provide the Company with the flexibility to issue Common
Stock for a variety of proper corporate purposes which the Board of Directors
may deem advisable without further action by the Company's stockholders, except
as may be required by law, regulation or Nasdaq rule. These purposes include,
among other things, declaring stock splits in the form of stock dividends or
distributions, raising equity capital, adopting additional equity incentive
plans or reserving additional shares for issuance under such plans and making
acquisitions through the use of stock. The availability of additional shares of
Common Stock is particularly important in the event that the Board of Directors
needs to undertake any of the foregoing actions on an expedited basis and thus
avoid the time and expense of seeking stockholder approval in connection with
the contemplated action. As a result of the Company's three-for-two stock split
in July 1999 and two-for-one stock split in February 2000, the company increased
its outstanding common Stock by 300% without any proportionate increase in the
number of authorized shares.
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Accordingly, another purpose of the proposed amendment is to establish a ratio
of authorized shares to issued shares that more closely approximates the ratio
that existed prior to the stock splits. The Board of Directors has no present
agreement, arrangement or intention to issue any of the additional shares for
which approval is sought. However, if these situations were to arise, the
issuance of additional shares of Common Stock could have a dilutive effect on
earnings per share and a stockholder's percentage voting power in the Company.
The increase in the authorized number of shares of Common Stock and the
subsequent issuance of such shares could, under certain circumstances, have the
effect of delaying or preventing a change in control of the Company without
further action by the stockholders (for example, by diluting the stock ownership
of a person seeking to effect a change in the composition of the Board of
Directors or contemplating a tender offer). The Company is not presently aware
of any pending or proposed transaction involving a change in control of the
Company. While it may be deemed to have potential anti-takeover effects, the
proposed amendment to increase the authorized Common Stock is not prompted by
any specific effort or takeover threat currently perceived by management.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the outstanding shares
of the Common Stock will be required to approve this Amendment to the Company's
Certificate of Incorporation. As a result, abstentions and broker non-votes will
have the same effect as negative votes.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS
VOTE "FOR" APPROVAL OF THE AMENDMENT OF THE
COMPANY'S CERTIFICATE OF INCORPORATION.
PROPOSAL NO. 3
APPROVAL OF AMENDMENT OF THE COMPANY'S 1995 DIRECTOR OPTION PLAN
The Company's 1995 Director Option Plan (the "Directors' Plan") was adopted
by the Board of Directors in September 1995 and was approved by the stockholders
in November 1995. A total of 425,000 shares of Common Stock are reserved for
issuance under the Directors' Plan, including the shares submitted for
stockholder approval at this meeting. As of March 15, 2000, options to purchase
192,000 shares of Common Stock had been granted under the Directors' Plan at a
weighted average per share exercise price of $10.84 and 233,000 shares remained
available for future grants under the Directors' Plan. There are currently four
directors who are eligible to participate in the Directors' Plan.
The stockholders are requested to approve an amendment to the Directors'
Plan to increase the number of shares reserved for issuance thereunder by
200,000 for a total of 425,000 shares. The Company believes that these changes
will serve to better align the interests of the directors with those of the
stockholders, facilitate attracting highly qualified directors and simplify
administration of the Directors' Plan. The Directors' Plan was adopted in order
to permit equity participation in the Company by the non-employee directors of
the Company as consideration for their service on the Board and to provide an
equity incentive associated with the success of the Company's business.
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SUMMARY OF THE DIRECTORS' PLAN
A description of the principal features of the Directors' Plan is set forth
below.
PURPOSE. The purposes of the Directors' Plan are to attract and retain the
best available personnel for service as directors of the Company, to provide
additional incentive to the non-employee directors of the Company to serve as
directors and to encourage their continued service on the Board.
STOCK SUBJECT TO THE PLAN. The maximum number of shares of the Company's
Common Stock that may be optioned and sold under the Directors' Plan is 425,000,
including the shares submitted for approval at this meeting. If an option
expires or becomes unexercisable for any reason, the unpurchased shares of stock
that were subject to the option may be returned to the Directors' Plan, unless
such plan has terminated, and may become available for future grant under the
plan.
ADMINISTRATION. The Directors' Plan fixes the timing of option grants,
amount of the grants, basis for the exercise price and restrictions on exercise
of the options in order to remove any discretionary element from the plan.
Administration of the Directors' Plan, to the extent necessary, will be provided
by the Board of Directors of the Company. The plan is structured such that no
discretion is exercised by any person concerning material decisions regarding
the Directors' Plan.
ELIGIBILITY. The Directors' Plan provides for the automatic grant of
nonstatutory options to outside directors of the Company. Upon being elected or
appointed to the Company's Board of Directors, each outside director is granted
an option, subject to certain vesting provisions, to purchase 30,000 shares of
the Company's Common Stock (the "Initial Option"). Thereafter, if the proposed
amendment is approved, each outside director who has served on the Board for at
least six full months prior to the date of grant shall be automatically granted,
on December 1 of each year, an option to purchase 6,000 shares of the Company's
Common Stock (the "Subsequent Option"). New Directors who join the Board after
June 1 but prior to December 1 of a given year shall receive no annual option in
that year.
TERM OF PLAN. The Directors' Plan shall be effective for a ten-year term
unless earlier terminated pursuant to the provisions of the plan.
TERMS OF OPTION; OPTION AGREEMENT. Options granted under the Directors'
Plan have a term of ten years, unless otherwise provided in the option
agreement. Each option is evidenced by a stock option agreement between the
Company and the director to whom such option is granted.
EXERCISE PRICE. The per share exercise price of each option granted under
the Directors' Plan is equal to the fair market value per share on the date the
option is granted. As long as the Common Stock of the Company is traded on the
Nasdaq National Market, the fair market value of a share of Common Stock of the
Company shall be the closing sales price for such stock on the date of grant.
EXERCISE OF OPTION. The director-optionee must earn the right to exercise
the option by continuing to serve on the Board of Directors. Options become
exercisable cumulatively, as follows: Initial Options granted under the
Director's Plan vest one-fifth (1/5) on the first anniversary of the date of
grant and one-sixtieth (1/60) of the shares subject to the option at the end of
each month thereafter. Subsequent Options granted under the Director's Plan vest
one-twelfth (1/12) on the fourth anniversary and one month of the date of grant
and one-twelfth (1/12) of the shares subject to the option at the end of each
month thereafter.
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An option is exercised by giving written notice of the exercise to the
Company specifying the number of full shares of Common Stock to be purchased and
tendering payment of the purchase price to the Company.
FORM OF CONSIDERATION. The consideration to be paid for the shares to be
issued upon exercise of an option under the Directors' Plan may consist of cash,
check, net exercise or other shares of the Company's Common Stock which, in the
case of the shares acquired upon exercise of an option, have been beneficially
owned for at least six months or which were not acquired directly or indirectly
from the Company, with a fair market value on the exercise date equal to the
aggregate exercise price of the shares being purchased.
RULE 16B-3. Options granted to directors must comply with the applicable
provisions of Rule 16b-3 or any successor thereto and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Directors' Plan actions.
TERMINATION OF STATUS AS A DIRECTOR. If a non-employee director ceases to
serve as a director of the Company, options outstanding under the Directors'
Plan may be exercised, if the proposed amendment is approved, within three
months after he or she ceases to serve as a director of the Company to the
extent such options were exercisable on the date of termination.
DISABILITY. If a non-employee director ceases to serve on the Board of
Directors due to a total and permanent disability, options outstanding under the
Directors' Plan may be exercised within 12 months after termination to the
extent that such options were exercisable at the date of termination.
DEATH OF OPTIONEE. If a director-optionee should die while serving on the
Company's Board of Directors, options may be exercised at any time within 12
months after death, but only to the extent the options were exercisable at the
date of death.
TERMINATION OF OPTIONS. No option is exercisable by any person after the
expiration of ten years from the date the option was granted.
Nontransferability. An option granted under the Directors' Plan is
nontransferable by the holder otherwise than by will or the laws of descent and
distribution, and is exercisable during the holder's lifetime only by the
optionee, or in the event of the optionee's death, by the optionee's estate or
by a person who acquires the right to exercise the option by bequest or
inheritance.
ADJUSTMENT UPON CHANGES IN CAPITALIZATION OR MERGER. In the event any
change is made in the Company's capitalization, such as a stock split or reverse
stock split, appropriate adjustment shall be made to the purchase price and to
the number of shares subject to the stock option. In the event of the proposed
dissolution or liquidation of the Company, all options will terminate
immediately prior to the consummation of such actions, unless otherwise provided
by the Board. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, the outstanding options shall become fully vested and exercisable,
including as to shares for which such option would otherwise be exercisable, for
a period of thirty (30) days, after which the option shall terminate.
AMENDMENT AND TERMINATION OF DIRECTOR'S PLAN. The Board may amend or
terminate the Directors' Plan from time to time in such respects as the Board
may deem advisable; provided that, to the extent necessary to comply with Rule
16b-3 promulgated under the Exchange Act or any other successor law or
regulation, the Company shall obtain stockholder approval of any amendment to
the Directors'
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Plan in such a manner and to such a degree as is required by the applicable law,
rule or regulation. Any amendment or termination of the Directors' Plan shall
not affect options already granted and such options shall remain in full force
and effect as if the Directors' Plan had not been amended or terminated, without
the director-optionee's consent. Any provisions of the Directors' Plan that
affect terms required to be specified in the plan by Rule 16b-3 promulgated
under the Exchange Act shall not be amended more than once every six months,
other than as required by other applicable laws, rules or regulations.
FEDERAL TAX INFORMATION
The following is only a summary of the effect of federal income tax
consequences of transactions under the Directors' Plan. This summary is not
intended to be exhaustive, and does not discuss the tax consequences of a
participant's death or the income tax laws of any municipality, state or foreign
country in which an optionee may reside.
Options granted under the Directors' Plan are nonstatutory stock options.
An optionee will not recognize any taxable income at the time he or she is
granted a nonstatutory stock option. Upon exercise of the option, the optionee
will generally recognize compensation income for federal tax purposes measured
by the excess, if any, of the then fair market value of the shares over the
option price. Because the optionee is a director of the Company, in certain
limited circumstances the date of taxation (and the date of measurement of
taxable ordinary income) may be deferred unless the optionee files an election
under Section 83(b) of the Code within thirty days of the date of exercise. Upon
resale of such shares by the optionee, any difference between the sales price
and the exercise price, to the extent not recognized as compensation income as
provided above, will be treated as capital gain or loss, and will qualify for
long-term capital gain or loss treatment if the shares have been held for more
than one year. The Company will be entitled to a tax deduction in the amount and
at the time that the optionee recognizes ordinary income with respect to shares
acquired upon exercise of a nonstatutory option.
REQUIRED VOTE
The approval of the amendment to the Director Option Plan requires the
affirmative vote of a majority of the Votes Cast on the proposal at the Annual
Meeting. The effect of an abstention is the same as a vote against the approval
of the amendment of the 1995 Directors' Option Plan.
THE COMPANY'S BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE
AMENDMENT TO THE DIRECTORS' OPTION PLAN TO INCREASE THE NUMBER OF SHARES
RESERVED FOR ISSUANCE THEREUNDER.
PROPOSAL NO. 4
RATIFICATION OF APPOINTMENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors has selected PricewaterhouseCoopers LLP, independent
accountants, to audit the financial statements of the Company for the fiscal
year ending December 31, 2000. PricewaterhouseCoopers LLP has audited the
Company's financial statements since 1989. A representative of
PricewaterhouseCoopers LLP is expected to be present at the meeting and will
have the opportunity to make a statement, and is expected to be available to
respond to appropriate questions.
10
REQUIRED VOTE
The Board of Directors has conditioned its appointment of the Company's
independent accountants upon the receipt of the affirmative vote of a majority
of the shares represented, in person or by proxy, and voting at the Annual
Meeting, which shares voting affirmatively also constitute at least a majority
of the required quorum. In the event that the stockholders do not approve the
selection of PricewaterhouseCoopers LLP, the appointment of the independent
accountants will be reconsidered by the Board of Directors.
THE BOARD OF DIRECTORS RECOMMENDS THAT SHTOCKHOLDERS VOTE "FOR" THE RATIFICATION
OF THE APPOINTMENT OF PRICEWATERHOUSECOOPERS LLP, AS INDEPENDENT ACCOUNTANTS FOR
FISCAL YEAR ENDING DECEMBER 31, 2000.
11
BENEFICIAL SECURITY OWNERSHIP OF MANAGEMENT
AND CERTAIN BENEFICIAL OWNERS
The following table sets forth the beneficial ownership of Common Stock of
the Company as of March 15, 2000 for the following: (i) each person or entity
who is known by the Company to own beneficially more than 5% of the outstanding
shares of the Company's Common Stock; (ii) each of the Company's directors;
(iii) the Company's Chief Executive Officer and each of the officers ("Named
Officers") named in the Summary Compensation Table on page 12 hereof; and (iv)
all directors and executive officers of the Company as a group.
Shares Percentage
Beneficially Beneficially
5% Stockholders, Directors and Officers Owned(1) Owned (1)
- -----------------------------------------------------------------------------
5% STOCKHOLDERS(2)
DiMarco/Harleen Revocable Trust(3)....................2,664,264 9.0
c/o Advent Software, Inc.
301 Brannan Street
San Francisco, CA 94107
Scudder Kemper Investments, Inc.......................2,144,400 7.3
345 Park Avenue
New York, NY 10154
Pilgrim Baxter & Associates, Ltd......................1,792,500 6.1
825 Duportail Road
Wayne, PA 19087
DIRECTORS AND NAMED OFFICERS
Frank H. Robinson(4).................................. 80,500 *
Wendell G. Van Auken(5)............................... 68,498 *
Monte Zweben (6)...................................... 15,000 *
William F. Zuendt (7)................................. 24,000 *
Stephanie G. DiMarco(3)...............................2,664,264 9.0
Peter M. Caswell(8)................................... 443,502 1.5
Lily S. Chang(9)...................................... 331,358 1.1
Irv H. Lichtenwald(10)................................ 81,898 *
Armistead D. Puryear (11)............................. 21,730 *
ALL DIRECTORS AND EXECUTIVE OFFICERS AS A GROUP
(9 persons)(12)....................................3,730,750 12.6
- -------------------------
* Less than 1%
(1) The number and percentage of shares beneficially owned is determined under
rules of the Securities and Exchange Commission ("SEC"), and the
information is not necessarily indicative of beneficial ownership for any
other purpose. Under such rules, beneficial ownership includes any shares
as to which the individual has sole or shared voting power or investment
power and also any shares which the individual has the right to acquire
within sixty days of March 15, 2000 through the exercise of any stock
option or other right. Unless otherwise indicated in the footnotes, each
person has sole voting and investment power (or shares such powers) with
respect to the shares shown as beneficially owned.
(2) This information was obtained from filings made with the SEC pursuant to
Sections 13(d) or 13(g) of the Exchange Act.
(3) Ms. DiMarco is also Chairman of the Board of the Company. Share amounts
include 1,984,462 shares held by the DiMarco/Harleen Revocable Living
Trust, 385,500 shares held by the DiMarco/Harleen Charitable Remainder
Trust and 1,800 shares held by the DiMarco/Harleen Children's Trust as to
which Ms. DiMarco shares voting and dispositive power. In addition,
includes options to purchase 292,502 shares of Common Stock exercisable
within 60 days of March 15, 2000.
(4) Includes options to purchase 56,500 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(5) Includes options to purchase 14,500 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(6) Includes options to purchase 15,000 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(7) Includes options to purchase 15,000 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(8) Includes 6,000 shares held under a trust for his children. Includes options
to purchase 391,240 shares of Common Stock exercisable within sixty days of
March 15, 2000.
(9) Includes options to purchase 108,998 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(10) Includes options to purchase 53,498 shares of Common Stock exercisable
within sixty days of March 15, 2000.
12
(11) Includes options to purchase 21,730 shares of Common Stock exercisable
within sixty days of March 15, 2000.
(12) Includes options held by executive officers and directors of the Company to
purchase 968,968 shares of Common Stock exercisable within sixty days of
March 15, 2000.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Section 16(a) of the Exchange Act ("Section 16(a)") requires the Company's
officers and directors, and persons who own more than ten percent of a
registered class of the Company's equity securities, to file reports of
ownership on Form 3 and changes in ownership on Form 4 or Form 5 with the
Securities and Exchange Commission (the "SEC") and the National Association of
Securities Dealers, Inc. Such officers, directors and ten-percent stockholders
are also required by SEC rules to furnish the Company with copies of all such
forms that they file.
Based solely on its review of the copies of such forms received by the
Company, or written representations from certain reporting persons that all
Forms 5 required for such persons were filed, the Company believes that during
fiscal 1999 all Section 16(a) filing requirements applicable to its officers,
directors and ten-percent stockholders were complied with.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Company's Compensation Committee was formed in October 1995 and is
currently composed of Messrs. Zweben and Robinson. No interlocking relationship
exists between any member of the Company's Board of Directors or Compensation
Committee and any member of the board of directors or compensation committee of
any other Company, nor has any such interlocking relationship existed in the
past. No member of the Compensation Committee is or was formerly an officer or
an employee of the Company or its subsidiaries.
During 1997 and 1998, Mr. Frank H. Robinson, a director of the Company,
served as a consultant to the Company and was paid $32,000 and $890,
respectively, in consulting fees for his services. No consulting services were
performed by him in 1999.
The Company has entered into indemnification agreements with each of its
directors and officers. Such agreements require the Company to indemnify such
individuals to the fullest extent permitted by law.
13
EXECUTIVE OFFICER COMPENSATION
SUMMARY COMPENSATION TABLE
The following table shows, as to the Chief Executive Officer and each of
the four other most highly compensated executive officers whose salary plus
bonus exceeded $100,000 during the last fiscal year, information concerning
compensation paid for services to the Company in all capacities during the last
three fiscal years.
Long-Term
Compensation
Annual Compensation Awards
--------------------------- Securities All Other
Underlying Compensation
Year Salary($) Bonus($)(1) Options (#) ($)(2)
Name and Principal Position
Stephanie G. DiMarco........................ 1999 $332,602 $ - - $10,824(3)(4)
Chairman of the Board 1998 324,626 - - 8,367(3)
1997 313,110 - 450,000 5,124(3)
- --------------------------------------------- -------- ---------------- ---------------- --------------- -----------------
Peter M. Caswell............................ 1999 305,909 50,000 100,000 12,036(3)(4)
Chief Executive Officer and President 1998 300,000 50,000 - 8,074(3)
1997 281,828 - 360,000 5,516(3)
- --------------------------------------------- -------- ---------------- ---------------- -------------- --------------
Lily S. Chang............................... 1999 305,909 - 202,500 10,549(3)(4)
Executive Vice President and 1998 300,000 - - 2,821(3)
Chief Technology Officer 1997 268,935 - 45,000 2,294(3)
- --------------------------------------------- -------- ---------------- ---------------- -------------- --------------
Irv H. Lichtenwald.......................... 1999 305,909 - 150,000 9,782(3)(4)
Senior Vice President, Chief Financial 1998 300,000 - - 4,671(3)
Officer and Secretary 1997 230,516 - 45,000 5,715(3)
- --------------------------------------------- -------- ---------------- ---------------- -------------- --------------
Armistead D. Puryear........................ 1999 175,000 115,397(5) - 12,691(3)
Senior Vice President, Worldwide Sales 1998 162,500 126,318(5) 120,000 7,239(3)
1997 117,097 93,857(5) 60,000 5,703(3)
- -------------------------
(1) Includes bonuses earned or accrued with respect to services rendered in the
fiscal year indicated, whether or not such bonus was actually paid during
such fiscal year.
(2) Unless otherwise indicated, consists of employer contributions pursuant to
the 401(k) Plan.
(3) Includes amounts paid for health care benefits.
(4) Includes amounts paid for life insurance where the Company is not the
beneficiary.
(5) Bonus includes sales commissions earned of $88,648, $121,054, and $109,756
earned for 1997, 1998 and 1999, respectively.
CERTAIN TRANSACTIONS
In April 1997 the Board of Directors of the Company approved and issued a
$200,000 loan to Peter Caswell, President, Chief Operating Officer and Director
of the Company, secured by Mr. Caswell's stock and options in the Company. The
largest amount outstanding in 1999 was $150,000, plus accrued interest. In
February 1999 the Board forgave $50,000 of the debt based upon Mr. Caswell's
meeting certain performance goals, and the total amount currently outstanding is
$100,000 and $39,596 in interest. The loan is due April 2001, or upon
termination of Mr. Caswell's employment with the Company if earlier, and accrues
interest at a rate of 8%.
14
OPTION GRANTS IN LAST FISCAL YEAR
The following table shows, as to each of the officers named in the Summary
Compensation Table, information concerning stock options granted during the
fiscal year ended December 31, 1999.
OPTION GRANTS IN FISCAL 1999
Individual Grants
Number of Percent of Potential Realizable Value
Securities Total Options at Assumed Annual Rates of
Underlying Granted to Stock Price Appreciation for
Options Employees in Exercise Expiration Option Term(4)
Name Granted(1) Fiscal Price Date(3)
Year(2) 5% 10%
- --------------------------- ----------- ------------- --------- ---------- ----------- ---------
Stephanie G. DiMarco....... - - $ - - $ - $ -
Peter M. Caswell........... 100,000 4.6 21.54 8/10/09 1,354,733 3,433,160
Lily S. Chang.............. 202,500 9.4 21.38 5/4/09 2,722,131 6,898,415
Irv H. Lichtenwald......... 150,000 7.0 21.38 5/4/09 2,016,420 5,110,005
Armistead D. Puryear....... - - - - - -
- -------------------------
(1) All options in this table were granted under the 1992 Stock Option Plan
and have exercise prices equal to the fair market value on the date of
grant. All such options have ten-year terms and vest monthly over a
five-year period.
(2) The Company granted options to purchase 2,153,470 shares of Common Stock to
employees in fiscal 1999.
(3) Options may terminate before their expiration upon the termination of
optionee's status as an employee or consultant, the optionee's death or an
acquisition of the Company.
(4) Potential realizable value assumes that the stock price increases from the
exercise price from the date of grant until the end of the option term (10
years) at the annual rate specified (5% and 10%). Annual compounding
results in total appreciation of approximately 62.9% (at 5% per year) and
159.4% (at 10% per year). The assumed annual rates of appreciation are
specified in SEC rules and do not represent the Company's estimate or
projection of future stock price growth. The Company does not necessarily
agree that this method can properly determine the value of an option.
OPTION EXERCISES AND HOLDINGS
The following table sets forth, for each of the officers in the Summary
Compensation Table, certain information concerning stock options exercised
during fiscal 1999, and the number of shares subject to both exercisable and
unexercisable stock options as of December 31, 1999. Also reported are values
for "in-the-money" options that represent the positive spread between the
respective exercise prices of outstanding stock options and the fair market
value of the Company's Common Stock as of December 31, 1999.
Aggregated Option Exercises in Fiscal 1999 and Fiscal 1999 Year-End Option Values
Number of Securities Value of Unexercised
Shares Underlying Unexercised In-the-Money Options at
Acquired on Value Options at Fiscal Year End Fiscal Year End($)(1)
Name Exercise(#) Realized($) Exercisable Unexercisable Exercisable Unexercisable
- --------------------------- ----------- ----------- ----------- ------------- ----------- -------------
Stephanie G. DiMarco....... - - 255,000 195,000 $5,803,928 $4,438,298
Peter M. Caswell........... 79,500 $1,521,938 404,904 296,834 10,870,791 5,721,694
Lily S. Chang.............. 78,000 2,192,112 83,872 220,630 1,793,922 2,934,876
Irv H. Lichtenwald......... 88,000 1,818,569 50,248 179,754 1,065,336 2,705,470
Armistead D. Puryear....... 93,496 1,521,257 4,128 136,078 102,956 3,205,482
- -------------------------
(1) Market value of underlying securities based on the closing price of
Company's Common Stock on December 31, 1999 (the last trading day of fiscal
1999) on the Nasdaq National Market of $32.219 minus the exercise price.
15
REPORT OF THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS
The Compensation Committee of the Board of Directors (the "Committee")
consists of directors Monte F. Zweben and Frank H. Robinson, neither of whom is
an employee or officer of the Company. The Committee sets policy and administers
the Company's cash and equity incentive programs for the purpose of attracting
and retaining highly skilled executives who will promote the Company's business
goals and build long-term stockholder value. The Committee is also responsible
for reviewing and making recommendations to the Board of Directors regarding all
forms of compensation to be provided to the executive officers and directors of
the Company, including stock compensation and loans, and all bonus and stock
compensation to all employees.
To the extent appropriate, the Company intends to take the necessary steps
to conform its compensation practices to comply with the $1 million compensation
deduction cap under Section 162(m) of the Internal Revenue Code of 1986, as
amended.
COMPENSATION PHILOSOPHY AND POLICIES
The policy of the Committee is to attract and retain key personnel through
the payment of competitive base salaries and to encourage and reward performance
through bonuses and stock ownership. The Committee's objectives are to:
o ensure that the executive team has clear goals and accountability with
respect to corporate performance;
o establish pay opportunities that are competitive based on prevailing
practices for the industry, the stage of growth, and the labor markets in
which the Company operates;
o independently assess operating results on a regular basis in light of
expected Company performance; and
o align pay incentives with the long-term interests of the Company's
stockholders.
ELEMENTS OF COMPENSATION
Compensation for officers and key employees includes both cash and equity
elements.
Cash compensation consists of base salary, which is determined by the level
of responsibility, expertise and experience of the employee, and competitive
conditions in the industry. The Committee believes that the salaries of its
officers fall within the software industry norm. In addition, cash bonuses may
be awarded to officers and other key employees. Compensation of sales personnel
also includes sales commissions tied to quarterly targets.
Ownership of the Company's Common Stock is a key element of executive
compensation. Officers and other employees of the Company are eligible to
participate in the 1992 Stock Plan (the "Option Plan") and the 1995 Employee
Stock Purchase Plan (the "Purchase Plan"), which were adopted prior to the
Company's initial public offering in November 1995. The Option Plan permits the
Board of Directors or the Committee to grant stock options to employees on such
terms as the Board or the Committee may determine. The Committee has the sole
authority to grant stock options to executive officers of the Company and
currently administers stock option grants to employees. In determining the size
of a stock option grant to a new officer or other key employee, the Committee
takes into account equity participation by comparable employees within the
Company, external competitive circumstances
16
and other relevant factors. Additional options may be granted to current
employees to reward exceptional performance or to provide additional unvested
equity incentives. The Purchase Plan permits employees to acquire Common Stock
of the Company through payroll deductions and promotes broad-based equity
participation throughout the Company. The Committee believes that such stock
plans align the interests of the employees with the long-term interests of the
stockholders.
The Company also maintains a 401(k) Plan to provide retirement benefits
through tax deferred salary deductions for all its employees. The Company
matches up to 50% of an employee's contribution, not to exceed $500 per
employee. In addition to the employer matching contribution, Advent may make a
profit sharing contribution to the 401(k) Plan at the discretion of the Board of
Directors.
1999 EXECUTIVE COMPENSATION
Executive compensation for 1999 included base salary, cash and equity-based
incentive compensation and, in the case of sales executives, sales commissions.
Cash incentive compensation is designed to motivate executives to attain
corporate, business unit and individual goals. The Company's policy is to have a
significant portion of an executive's total compensation at risk based on the
Company's overall performance. Executive officers, like other employees, were
eligible for option grants under the Option Plan.
CHIEF EXECUTIVE OFFICER COMPENSATION
Compensation for the Chief Executive Officer is determined by a process
similar to that discussed above for executive officers. The Chief Executive
Officer's target base pay level has been analyzed using data for comparable
software companies. Mr. Caswell receives no other material compensation or
benefits not provided to all executive officers, except for the loan previously
referred to under "Certain Transactions."
The Committee has considered the potential impact of Section 162(m) of the
Internal Revenue Code of 1986, as amended, which limits the tax deductibility of
cash compensation paid to individual executive officers to $1 million per
officer. The cash compensation to be paid to the Company's executive officers in
fiscal 2000 is not expected to exceed the $1 million limit per individual
officer.
COMPENSATION COMMITTEE
OF THE BOARD OF DIRECTORS
Monte F. Zweben
Frank H. Robinson
17
COMPARISON OF TOTAL CUMULATIVE STOCKHOLDER RETURN
The following graph sets forth the Company's total cumulative stockholder
return as compared to the Standard & Poor's 500 Index and the Nasdaq Computer &
Data Processing Index for the period November 16, 1995 (the date of the
Company's initial public offering) through December 31, 1999. Total stockholder
return assumes $100 invested at the beginning of the period in the Common Stock
of the Company, the stock represented in the Standard & Poor's 500 Index and the
stocks represented in the Nasdaq Computer & Data Processing Index, respectively.
COMPARISON OF 49 MONTH CUMULATIVE TOTAL RETURN*
Among Advent Software, Inc., the S&P 500 Index
and the Nasdaq Computer & Data Processing Index
Cumulative Total Return
11/16/95 12/95 12/96 12/97 12/98 12/99
Advent Software, Inc. 100.00 98.61 168.75 159.03 261.81 536.98
S&P 500 100.00 103.30 127.02 169.39 217.80 263.64
Nasdaq Computer & Data Processing 100.00 100.29 123.78 152.06 271.48 573.80
- ----------
* $100 invested on 11/16/95 in Stock or Index including reinvestment of
dividends. Fiscal year ending December 31.
OTHER MATTERS
The Company knows of no other matters to be submitted to the meeting. If
any other matters properly come before the meeting, it is the intention of the
persons named in the enclosed proxy card to vote the shares they represent as
the Company may recommend.
It is important that your shares be represented at the meeting, regardless
of the number of shares which you hold. You are, therefore, urged to execute and
return, at your earliest convenience, the accompanying proxy card in the
envelope which has been enclosed.
THE BOARD OF DIRECTORS
San Francisco, California
April 4, 2000
18
AMENDED AND RESTATED
BYLAWS
OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
I.1 REGISTERED OFFICE
The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
I.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
II.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
II.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date
and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the second
Friday in June in each year at 10:00 a.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be elected, and
any other proper business may be transacted.
II.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the chief executive
officer, or by one or more stockholders holding shares in the aggregate entitled
to cast not less than twenty percent (20%) of the votes of all shares of stock
owned by stockholders entitled to vote at that meeting.
II.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise
given in accordance with Sections 2.5 and 2.6 of these bylaws not less than ten
(10) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the purpose or purposes for which the meeting is called (no
business other than that specified in the notice may be transacted) or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the stockholders
(but any proper matter may be presented at the meeting for such action). The
notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
II.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special meeting,
nominations for the election of director or other business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors or other person so authorized pursuant to
Section 2.3 of these bylaws, (b) otherwise properly brought before the meeting
by or at the direction of the board of directors or (c) otherwise properly
brought before the meeting by a stockholder. For such nominations or other
business to be considered properly brought before the meeting by a stockholder,
such stockholder must have given timely notice and in proper form of his intent
to bring such business before such meeting. To be timely, such stockholder's
notice must be delivered to or mailed and received by the secretary of the
Corporation not less than 90 days prior to the meeting; provided, however, that
in the case of a meeting called by or on behalf of the Board of Directors of the
Corporation where prior notice, or public disclosure, of the meeting has not
been given or made at least 100 days prior to such meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper form,
a stockholder's notice to the secretary shall set forth:
2
(i) the name and address of the stockholder who intends to
make the nominations, propose the business, and, as the case
may be, the name and address of the person or persons to be
nominated or the nature of the business to be proposed;
(ii) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such
meeting and, if applicable, intends to appear in person or by
proxy at the meeting to nominate the person or persons
specified in the notice or introduce the business specified in
the notice;
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made
by the stockholder;
(iv) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would
be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission
had the nominee been nominated, or intended to be nominated,
or the matter been proposed, or intended to be proposed by the
board of directors' and
(v) if applicable, the consent of each nominee to serve
as director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
II.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
3
II.7 QUORUM
The holders of a majority in voting power of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.8 of these bylaws.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws of the State of Delaware or
of the certificate of incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.
II.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time and place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
II.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation
or these bylaws, each stockholder shall be entitled to one vote for each share
of capital stock held by such stockholder.
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II.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing setting forth the action so
taken shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Such consents shall be delivered to the corporation by delivery to it
registered office in the state of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
II.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors and which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.
If the board of directors does not so fix a record date, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section
8.1 of these bylaws.
II.12 PROXIES
Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission, telefacsimile or
otherwise) by the stockholder or the stockholder's attorney-
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in-fact. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212(e) of the General
Corporation Law of Delaware.
II.13 ORGANIZATION
The chairman of the board, or in the absence of the chairman, the
president, shall call the meeting of the stockholders to order, and shall act as
chairman of the meeting. In the absence of the chairman of the board, the
president, and all of the vice presidents, the stockholders shall appoint a
chairman for such meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and the conduct of
business. The secretary of the corporation shall act as secretary of all
meetings of the stockholders, but in the absence of the secretary at any meeting
of the stockholders, the chairman of the meeting may appoint any person to act
as secretary of the meeting.
II.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
ARTICLE III
DIRECTORS
III.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware
and to any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
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III.2 NUMBER OF DIRECTORS
The board of directors shall consist of six (6) members. The number of
directors may be changed by an amendment to this bylaw, duly adopted by the
board of directors or by the stockholders, or by a duly adopted amendment to the
certificate of incorporation.
III.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
III.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the resignation
becomes effective.
Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the shares represented and voting at a duly held meeting at which
a quorum is present (which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected shall hold office
until the next annual meeting of the stockholders and until a successor has been
elected and qualified.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
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of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
III.5 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
III.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within or outside the
State of Delaware that has been designated in the notice of the meeting or, if
not stated in the notice or if there is no notice, at the principal executive
office of the corporation.
Any meeting of the board, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such participating
directors shall be deemed to be present in person at the meeting.
III.7 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be
held at such time and place as shall be fixed by the vote of the stockholders at
the annual meeting. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
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III.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice
at such time as shall from time to time be determined by the board of directors.
If any regular meeting day shall fall on a legal holiday, then the meeting shall
be held at the same time and place on the next succeeding full business day.
III.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone, telecopy or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the director. The
notice need not specify the purpose or the place of the meeting, if the meeting
is to be held at the principal executive office of the corporation.
III.10 QUORUM
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.12 of these bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
certificate of incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the quorum for that meeting.
III.11 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice, whether before or after the meeting, or (ii) who attends the
meeting other than for the express purposed of
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objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. All such waivers shall
be filed with the corporate records or made part of the minutes of the meeting.
A waiver of notice need not specify the purpose of any regular or special
meeting of the board of directors.
III.12 ADJOURNMENT
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting of the board to another time and place.
III.13 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting of the
board need not be given unless the meeting is adjourned for more than
twenty-four (24) hours. If the meeting is adjourned for more than twenty-four
(24) hours, then notice of the time and place of the adjourned meeting shall be
given before the adjourned meeting takes place, in the manner specified in
Section 3.9 of these bylaws, to the directors who were not present at the time
of the adjournment.
III.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of directors
may be taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board of directors.
III.15 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.15 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
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III.16 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or any of its
subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
ARTICLE IV
COMMITTEES
IV.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of one (1) or more directors, to serve at the pleasure of the board.
The board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the board, shall have and
may exercise all the powers and authority of the board, but no such committee
shall have the power or authority to (i) amend the certificate of incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the board
of directors as provided in Section 151(a) of the General Corporation Law of
Delaware, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a revocation
of a dissolution or (v) amend the bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
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IV.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the following provisions of Article III of these
bylaws: Section 3.6 (place of meetings; meetings by telephone), Section 3.8
(regular meetings), Section 3.9 (special meetings; notice), Section 3.10
(quorum), Section 3.11 (waiver of notice), Section 3.12 (adjournment), Section
3.13 (notice of adjournment) and Section 3.14 (board action by written consent
without meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
IV.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
ARTICLE V
OFFICERS
V.1 OFFICERS
The Corporate Officers of the corporation shall be a chief executive
officer, a president, a secretary and a chief financial officer. The corporation
may also have, at the discretion of the board of directors, a chairman of the
board, one or more vice presidents (however denominated), one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these bylaws. Any
number of offices may be held by the same person.
In addition to the Corporate Officers of the Company described above,
there may also be such Administrative Officers of the corporation as may be
designated and appointed from time to time by the chief executive officer of the
corporation in accordance with the provisions of Section 5.13 of these bylaws.
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V.2 ELECTION OF OFFICERS
The Corporate Officers of the corporation, except such officers as may
be appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board of directors, subject to the rights,
if any, of an officer under any contract of employment, and shall hold their
respective offices for such terms as the board of directors may from time to
time determine.
V.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the chief executive
officer to appoint, such executive officers who are not Corporate Officers as
the business of the corporation may require, each of whom shall hold office for
such period, have such power and authority, and perform such duties as are
provided in these bylaws or as the board of directors may from time to time
determine.
The chief executive officer may from time to time designate and appoint
Administrative (or non-executive) Officers of the corporation in accordance with
the provisions of Section 5.13 of these bylaws.
V.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an executive officer under any
contract of employment, any executive officer may be removed, either with or
without cause, by the board of directors at any regular or special meeting of
the board or, except in case of an executive officer chosen by the board of
directors, by any Corporate Officer upon whom such power of removal may be
conferred by the board of directors.
Any executive officer may resign at any time by giving written notice
to the corporation. Any resignation shall take effect at the date of the receipt
of that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the executive
officer is a party.
Any Administrative (or non-executive) Officer may be removed, either
with or without cause, at any time by the chief executive officer. Any
Administrative (or non-executive) Officer may resign at any time by giving
written notice to the chief executive officer or to the secretary of the
corporation.
V.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
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V.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise such other
powers and perform such other duties as may from time to time be assigned to him
or her by the board of directors or as may be prescribed by these bylaws. If
there is no chairman of the board, then the chief executive officer of the
corporation shall have the powers and duties prescribed herein.
V.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman of the board, if there be such an officer,
the chief executive officer of the corporation shall, subject to the control of
the board of directors, have general supervision, direction and control of the
business and the officers of the corporation. He or she shall preside at all
meetings of the stockholders and, in the absence or nonexistence of a chairman
of the board, at all meetings of the board of directors. He or she shall have
the general powers and duties of management usually vested in the chief
executive officer of a corporation, and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or these
bylaws.
V.8 PRESIDENT AND CHIEF OPERATING OFFICER
Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman and chief executive officer, if there be such
an officer, the president and chief operating officer of the corporation shall,
subject to the control of the board of directors, have general supervision over
the operation of the corporation, including the general powers and duties of
management usually vested in the office of president of a corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or these bylaws.
V.9 VICE PRESIDENTS
In the absence or disability of the president, and if there is no
chairman of the board, the vice presidents, if any, in order of their rank as
fixed by the board of directors or, if not ranked, a vice president designated
by the board of directors, shall perform all the duties of the chief executive
officer and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the chief executive officer. The vice presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, these bylaws, the
chief executive officer or the chairman of the board.
V.10 SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of the board
of directors, committees of directors and stockholders. The minutes shall show
the time
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and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law or
by these bylaws. He or she shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these bylaws.
V.11 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director for a purpose reasonably related to his
position as a director.
The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated by the board of directors. He or she shall disburse the funds of
the corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his or
her transactions as chief financial officer and of the financial condition of
the corporation, and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or these bylaws.
V.12 ASSISTANT SECRETARY
The assistant secretary, if any, or, if there is more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
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V.13 ADMINISTRATIVE OFFICERS
In addition to the Corporate Officers of the corporation as provided in
Section 5.1 of these bylaws and such subordinate Corporate Officers as may be
appointed in accordance with Section 5.3 of these bylaws, there may also be such
Administrative (or non-executive) Officers of the corporation as may be
designated and appointed from time to time by the chief executive officer of the
corporation. Administrative Officers shall perform such duties and have such
powers as from time to time may be determined by the chief executive officer or
the board of directors in order to assist the Corporate Officers in the
furtherance of their duties. In the performance of such duties and the exercise
of such powers, however, such Administrative Officers shall have limited
authority to act on behalf of the corporation as the board of directors shall
establish, including but not limited to limitations on the dollar amount and on
the scope of agreements or commitments that may be made by such Administrative
Officers on behalf of the corporation, which limitations may not be exceeded by
such individuals or altered by the chief executive officer without further
approval by the board of directors.
V.14 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing powers, authority and duties, all officers
of the corporation shall respectively have such authority and powers and perform
such duties in the management of the business of the corporation as may be
designated from time to time by the board of directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
VI.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, indemnify any person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation shall mean any person (i) who is or
was a director or officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was a
director or officer of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
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The corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
board of Directors of the corporation.
The corporation shall pay the expenses (including attorney's fees)
incurred by a director or officer of the corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director or officer is
not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the corporation's Certificate of Incorporation,
these bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
VI.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware as the same now
exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the corporation (other than a director or officer) shall mean any person (i) who
is or was an employee or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
17
VI.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
VI.4 SAVINGS CLAUSE
If this Article VI or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each director, officer, employee or agent of the
corporation against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative, and whether internal
or external, including a grand jury proceeding and an action or suit brought by
or in the right of the corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated, or by
any other applicable law.
VI.5 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise prided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
RECORDS AND REPORTS
VII.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these bylaws as amended to date,
accounting books and other records of its business and properties.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books
18
and records and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
VII.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director.
VII.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
VII.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, if any, the president, any vice president,
the chief financial officer, the secretary or any assistant secretary of this
corporation, or any other person authorized by the board of directors or the
president or a vice president, is authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
VII.5 CERTIFICATION AND INSPECTION OF BYLAWS
The original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, shall be kept at the corporation's
principal executive office and shall be open to inspection by the stockholders
of the corporation, at all reasonable times during office hours.
19
ARTICLE VIII
GENERAL MATTERS
VIII.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not
precede the date upon which the resolution fixing the record date is adopted and
which shall not be more than sixty (60) days before any such action. In that
case, only stockholders of record at the close of business on the date so fixed
are entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board of directors adopts the
applicable resolution.
VIII.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
VIII.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these bylaws,
may authorize and empower any officer or officers, or agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of the
corporation; such power and authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within
the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
VIII.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and, upon request,
every holder of uncertificated shares, shall be entitled to have a certificate
signed by, or in the name of the corporation by, the chairman or vice-chairman
of the board of directors, or the president or vice-president, and by the
treasurer or an assistant
20
treasurer, or the secretary or an assistant secretary of such corporation
representing the number of shares registered in certificate form. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Certificates for shares shall be of such form and device as the board
of directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer or registration of transfer, if any; a statement as
to any applicable voting trust agreement; if the shares be assessable, or, if
assessments are collectible by personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, or upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
VIII.5 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences and the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences and the relative, participating, optional or other special
rights of each
21
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
VIII.6 LOST CERTIFICATES
Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
VIII.7 TRANSFER AGENTS AND REGISTRARS
The board of directors may appoint one or more transfer agents or
transfer clerks, and one or more registrars, each of which shall be an
incorporated bank or trust company -- either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the board of directors may designate.
VIII.8 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the generality of this
provision, as used in these bylaws, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both an
entity and a natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended
or repealed by the stockholders entitled to vote; provided, however, that the
corporation may, in its certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that such power has been so
conferred upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
22
Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or the filing of the operative written consent(s) shall be
stated in said book.
23
AMENDED AND RESTATED
BYLAWS
OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
(Amended as of November 19, 1999)
AMENDED AND RESTATED
BYLAWS OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
TABLE OF CONTENTS
Page
ARTICLE I CORPORATE OFFICES...................................................1
1.1 REGISTERED OFFICE....................................................1
1.2 OTHER OFFICES........................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...........................................1
2.1 PLACE OF MEETINGS....................................................1
2.2 ANNUAL MEETING.......................................................1
2.3 SPECIAL MEETING......................................................2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS.....................................2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS......2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.........................3
2.7 QUORUM...............................................................4
2.8 ADJOURNED MEETING; NOTICE............................................4
2.9 VOTING...............................................................4
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING..............5
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING...........................5
2.12 PROXIES..............................................................5
2.13 ORGANIZATION.........................................................6
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE................................6
ARTICLE III DIRECTORS.........................................................6
3.1 POWERS...............................................................6
3.2 NUMBER OF DIRECTORS..................................................7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.............................7
3.4 RESIGNATION AND VACANCIES............................................7
3.5 REMOVAL OF DIRECTORS.................................................8
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.............................8
3.7 FIRST MEETINGS.......................................................8
3.8 REGULAR MEETINGS.....................................................9
-i-
3.9 SPECIAL MEETINGS; NOTICE.............................................9
3.10 QUORUM...............................................................9
3.11 WAIVER OF NOTICE....................................................10
3.12 ADJOURNMENT.........................................................10
3.13 NOTICE OF ADJOURNMENT...............................................10
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING...................10
3.15 FEES AND COMPENSATION OF DIRECTORS..................................10
3.16 APPROVAL OF LOANS TO OFFICERS.......................................11
ARTICLE IV COMMITTEES........................................................11
4.1 COMMITTEES OF DIRECTORS.............................................11
4.2 MEETINGS AND ACTION OF COMMITTEES...................................12
4.3 COMMITTEE MINUTES...................................................12
ARTICLE V OFFICERS...........................................................12
5.1 OFFICERS............................................................12
5.2 ELECTION OF OFFICERS................................................13
5.3 SUBORDINATE OFFICERS................................................13
5.4 REMOVAL AND RESIGNATION OF OFFICERS.................................13
5.5 VACANCIES IN OFFICES................................................13
5.6 CHAIRMAN OF THE BOARD...............................................14
5.7 CHIEF EXECUTIVE OFFICER.............................................14
5.8 PRESIDENT AND CHIEF OPERATING OFFICER...............................14
5.9 VICE PRESIDENTS.....................................................14
5.10 SECRETARY...........................................................14
5.11 CHIEF FINANCIAL OFFICER.............................................15
5.12 ASSISTANT SECRETARY.................................................15
5.13 ADMINISTRATIVE OFFICERS.............................................16
5.14 AUTHORITY AND DUTIES OF OFFICERS....................................16
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS16
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS...........................16
6.2 INDEMNIFICATION OF OTHERS...........................................17
6.3 INSURANCE...........................................................17
6.4 SAVINGS CLAUSE......................................................18
6.5 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES........18
ARTICLE VII RECORDS AND REPORTS..............................................18
7.1 MAINTENANCE AND INSPECTION OF RECORDS...............................18
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7.2 INSPECTION BY DIRECTORS.............................................19
7.3 ANNUAL STATEMENT TO STOCKHOLDERS....................................19
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS......................19
7.5 CERTIFICATION AND INSPECTION OF BYLAWS..............................19
ARTICLE VIII GENERAL MATTERS.................................................20
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING...............20
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS...........................20
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED..................20
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES....................20
8.5 SPECIAL DESIGNATION ON CERTIFICATES.................................21
8.6 LOST CERTIFICATES...................................................22
8.7 TRANSFER AGENTS AND REGISTRARS......................................22
8.8 CONSTRUCTION; DEFINITIONS...........................................22
ARTICLE IX AMENDMENTS........................................................23
-iii-
ADVENT SOFTWARE, INC.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Advent Software, Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies that :
A. The name of this Corporation, and the name under which it was originally
incorporated, is Advent Software, Inc.
B. The date of filing of this Corporation's original Certificate of
Incorporation with the
Secretary of State of Delaware was October 4, 1995.
C. Pursuant to Sections 241 and 245 of the Delaware General Corporation
Law, this Amended and Restated Certificate of Incorporation restates, integrates
and amends the provisions of the Corporation's Certificate of Incorporation as
follows:
FIRST. The name of this corporation is Advent Software, Inc.
SECOND. The address of the corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
THIRD. The purpose of this corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. This corporation is authorized to issue two classes of shares to be
designated respectively Preferred Stock ("Preferred") and Common Stock
("Common"). The total number of shares of Preferred this corporation shall have
authority to issue shall be 2,000,000, $.01 par value, and the total number of
shares of Common which this corporation shall have the authority to issue shall
be 120,000,000, $.01 par value.
The Preferred Stock may be issued from time to time in one or more series
pursuant to a resolution or resolutions providing for such issue duly adopted by
the Board of Directors (authority to do so being hereby expressly vested in the
Board). The Board of Directors is further authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued series of Preferred Stock and, to fix the number of shares of
any such series of Preferred Stock and the designation of any such series of
Preferred Stock. The Board of Directors is authorized, within the limits and
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, to increase or
decrease (but not below the number of shares thereof then outstanding) the
number of shares of any such series subsequent to the issue of shares of that
series, to determine the designation of any series, and to fix the number of
shares of any series.
FIFTH. The corporation is to have perpetual existence.
SIXTH. The Board of Directors of the corporation is expressly authorized to
adopt, amend or repeal the bylaws of the corporation, but the stockholders may
make additional by-laws and may alter or repeal any by-law whether adopted by
them or otherwise.
SEVENTH. Elections of directors need not be by written ballot except and to
the extent provided in the by-laws of the corporation.
EIGHTH. A director of the corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as the same exists or may hereafter be amended. Any repeal or modification of
this Article EIGHTH shall not adversely affect any right or protection of a
director of the corporation existing hereunder with respect to any act or
omission occurring prior to such repeal or modification.
IN WITNESS WHEREOF, Advent Software, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by Peter M. Caswell, its
President, and attested by Irv H. Lichtenwald, its Secretary, this ______ day of
May, 2000.
ADVENT SOFTWARE, INC.
--------------------------------
Peter M. Caswell, President
Attested:
- ------------------------------------
Irv H. Lichtenwald, Secretary
PROXY
ADVENT SOFTWARE, INC.
PROXY FOR 2000 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of ADVENT SOFTWARE, INC., a Delaware corporation,
hereby acknowledges receipt of the Notice of Annual Meeting of Stockholders and
Proxy Statement, each dated March 26, 2000, and hereby appoints Stephanie G.
DiMarco and Irv H. Lichtenwald, and each of them, proxies and attorneys-in-fact,
with full power to each of substitution, on behalf and in the name of the
undersigned, to represent the undersigned at the 2000 Annual Meeting of
Stockholders of ADVENT SOFTWARE, INC. to be held on Thursday, May 4, 2000, at
10:00 a.m., local time, at its corporate offices located at 301 Brannan Street,
San Francisco, California and at any adjournment or adjournments thereof, and to
vote all shares of Common Stock which the undersigned would be entitled to vote,
if then and there personally present, on the matters set forth on the reverse
side.
A majority of such attorneys or substitutes as shall be present and shall act at
said meeting or any adjournment or adjournments thereof (or if only one shall
represent and act, then that one) shall have and may exercise all of the powers
of said attorneys-in-fact hereunder.
THIS PROXY WILL BE VOTED AS DIRECTED, OR IF NO CONTRARY DIRECTION IS INDICATED,
WILL BE VOTED FOR THE ELECTION OF DIRECTORS, FOR THE AMENDMENT TO THE
CERTIFICATE OF INCORPORATION, FOR THE AMENDMENT TO THE BOARD OF DIRECTORS'
OPTION PLAN, FOR THE RATIFICATION OF THE APPOINTMENT OF PRICEWATERHOUSECOOPERS
LLP AS INDEPENDENT ACCOUNTANTS OF THE COMPANY, AND AS SAID PROXIES DEEM
ADVISABLE ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING.
- ------------- -------------
SEE REVERSE CONTINUED AND TO BE SIGNED ON REVERSE SIDE SEE REVERSE
SIDE SIDE
- ------------- -------------
[X] Please mark
votes as in
this example
1. Election of Directors
NOMINEES: (01) Peter M. Caswell, (02)Stephanie G. DiMarco,
(03)Frank H. Robinson, (04) Wendell G. Van Auken, (05) William F. Zuendt,
(06)Monte Zweben
FOR WITHHELD
[_] [_]
[_] _____________________________________________________________________
For all nominees except as noted above.
FOR AGAINST ABSTAIN
2. Proposal to approve an amendment to the [_] [_] [_]
Company's certificate of incorporation to
increase the number of authorized shares
of the Company's Common Stock from
40,000,000 to 120,000,000.
FOR AGAINST ABSTAIN
3. Proposal to approve an amendment of the [_] [_] [_]
Company's 1995 Directors' Option Plan
providing for an increase in the number of
shares of the Company's Common Stock
reserved for issuance thereunder by 200,000
shares.
FOR AGAINST ABSTAIN
4. Proposal to ratify the appointment of [_] [_] [_]
PricwaterhouseCoopers LLP, as the independent
accountants of the Company for fiscal 2000.
MARK HERE IF YOU PLAN TO ATTEND THE MEETING [_]
MARK HERE FOR ADDRESS CHANGE AND NOTE BELOW [_]
Please sign exactly as your name(s) appear(s) hereon. All holders must sign.
When signing in a fiduciary capacity, please indicate full title as such. If a
corporation or partnership, please sign in full corporate or partnership name by
authorized person.
Signature:_________________ Date:______ Signature:_________________ Date:______