SHALL BE MADE IN
WRITING BY THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS IMMEDIATELY PRIOR TO
CHANGE OF CONTROL (THE "ACCOUNTANTS"), WHOSE DETERMINATION SHALL BE CONCLUSIVE
AND BINDING UPON THE EXECUTIVE AND THE COMPANY FOR ALL PURPOSES. FOR PURPOSES OF
MAKING THE CALCULATIONS REQUIRED BY THIS SECTION 5, THE
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ACCOUNTANTS MAY MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING
APPLICABLE TAXES AND MAY RELY ON REASONABLE, GOOD FAITH INTERPRETATIONS
CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF THE CODE. THE COMPANY
AND THE EXECUTIVE SHALL FURNISH TO THE ACCOUNTANTS SUCH INFORMATION AND
DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN ORDER TO MAKE A
DETERMINATION UNDER THIS SECTION. THE COMPANY SHALL BEAR ALL COSTS THE
ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS SECTION 5.
6.
SECTION 409A. ADVENT WILL AMEND THIS
AGREEMENT AS NECESSARY OR APPROPRIATE TO USE REASONABLE EFFORTS TO AVOID
IMPOSITION TO AN EXECUTIVE OF ANY ADDITIONAL TAX OR INCOME RECOGNITION UNDER
SECTION 409A OF THE CODE AND ANY TEMPORARY OR FINAL TREASURY REGULATIONS AND
INTERNAL REVENUE SERVICE GUIDANCE THEREUNDER ("SECTION 409A") PRIOR TO THE
ACTUAL PAYMENT TO EXECUTIVE OF PAYMENTS OR BENEFITS UNDER THIS AGREEMENT.
7.
SUCCESSORS.
(A)
THE COMPANY'S SUCCESSORS. ANY SUCCESSOR TO
THE COMPANY (WHETHER DIRECT OR INDIRECT AND WHETHER BY PURCHASE, MERGER,
CONSOLIDATION, LIQUIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE
COMPANY'S BUSINESS AND/OR ASSETS SHALL ASSUME THE OBLIGATIONS UNDER THIS PLAN
AND AGREE EXPRESSLY TO PERFORM THE OBLIGATIONS UNDER THIS PLAN IN THE SAME
MANNER AND TO THE SAME EXTENT AS THE COMPANY WOULD BE REQUIRED TO PERFORM SUCH
OBLIGATIONS IN THE ABSENCE OF A SUCCESSION. FOR ALL PURPOSES UNDER THIS PLAN,
THE TERM "COMPANY" SHALL INCLUDE ANY SUCCESSOR TO THE COMPANY'S BUSINESS AND/OR
ASSETS WHICH EXECUTES AND DELIVERS THE ASSUMPTION AGREEMENT DESCRIBED IN THIS
SECTION 7(A) OR WHICH BECOMES BOUND BY THE TERMS OF THIS PLAN BY OPERATION OF
LAW.
(B)
THE EXECUTIVE'S SUCCESSORS. THE TERMS OF
THIS PLAN AND ALL RIGHTS OF THE EXECUTIVE HEREUNDER SHALL INURE TO THE BENEFIT
OF, AND BE ENFORCEABLE BY, THE EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
8.
NOTICES. ALL NOTICES, REQUESTS, DEMANDS
AND OTHER COMMUNICATIONS CALLED FOR HEREUNDER SHALL BE IN WRITING AND SHALL BE
DEEMED GIVEN (I) ON THE DATE OF DELIVERY, OR, IF EARLIER, (II) ONE (1) DAY AFTER
BEING SENT BY A WELL ESTABLISHED COMMERCIAL OVERNIGHT SERVICE, OR
(III) THREE (3) DAYS AFTER BEING MAILED BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, PREPAID AND ADDRESSED TO THE PARTIES OR THEIR SUCCESSORS AT
THE FOLLOWING ADDRESSES, OR AT SUCH OTHER ADDRESSES AS THE PARTIES MAY LATER
DESIGNATE IN WRITING.
If to the Company:
Advent Software, Inc.
301 Brannan Street
San Francisco, CA 94107
Attention: Chief Executive Officer
or to such other address or the attention of such other person as the recipient
party has previously furnished to the other party in writing in accordance with
this paragraph.
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9.
MISCELLANEOUS PROVISIONS.
(A)
NO DUTY TO MITIGATE. THE EXECUTIVE