<PAGE> 1
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:
<TABLE>
<S> <C>
/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 sec.240.14a-11(c) or sec.240.14a-12
</TABLE>
LEGATO SYSTEMS, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ $125 per Exchange Act Rules 0-11(c)(1)(ii), or 14a-6(i)(1), or 14a-6(i)(2)
or Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
_
(2) Form, Schedule or Registration Statement No.:
Preliminary Proxy Material
(3) Filing Party:
Registrant
(4) Date Filed:
_
<PAGE> 2
[LOGO]
LEGATO SYSTEMS, INC.
3145 PORTER DRIVE
PALO ALTO, CALIFORNIA 94304
May , 1996
TO THE STOCKHOLDERS OF LEGATO SYSTEMS, INC.
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Legato Systems, Inc. (the "Company"), that will be held at the Company's
principal executive offices at 3145 Porter Drive, Palo Alto, California, on
Tuesday, July 2, 1996, at 8:00 a.m.
Details of the business to be conducted at the Special Meeting are given in
the attached Proxy Statement and Notice of Special Meeting of Stockholders.
It is important that your shares be represented and voted at the meeting.
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN,
DATE AND PROMPTLY RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED POSTAGE-PAID
ENVELOPE. Returning the proxy does NOT deprive you of your right to attend the
Special Meeting. If you decide to attend the Special Meeting and wish to change
your proxy vote, you may do so automatically by voting in person at the meeting.
On behalf of the Board of Directors, I would like to express our
appreciation for your continued interest in the affairs of the Company. We look
forward to seeing you at the Special Meeting.
Sincerely,
LOUIS C. COLE
Chairman of the Board, President and
Chief Executive Officer
<PAGE> 3
[LOGO]
LEGATO SYSTEMS, INC.
3145 PORTER DRIVE
PALO ALTO, CALIFORNIA 94304
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD JULY 2, 1996
TO THE STOCKHOLDERS OF LEGATO SYSTEMS, INC.:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Legato
Systems, Inc., a Delaware corporation (the "Company"), will be held on Tuesday,
July 2, 1996, at 8:00 a.m., Pacific Daylight Time, at the Company's principal
executive offices located at 3145 Porter Drive, Palo Alto, California 94304, for
the following purposes:
1. To approve an amendment and restatement to the Company's Certificate of
Incorporation to (i) effect a two-for-one split of the Company's Common
Stock, (ii) increase the number of authorized shares of the Company's
Common Stock from 20,000,000 to 50,000,000 shares, and (iii) increase
the number of authorized shares of the Company's Preferred Stock from
2,000,000 to 5,000,000 shares.
2. To transact such other business as may properly come before the Special
Meeting and any adjournment or postponement thereof.
The foregoing item of business is more fully described in the Proxy
Statement accompanying this Notice.
Only stockholders of record at the close of business on May 24, 1996 are
entitled to notice of and to vote at the Special Meeting. A list of such
stockholders will be available for inspection at the Company's principal
executive offices during ordinary business hours for the ten-day period prior to
the Special Meeting.
BY ORDER OF THE BOARD OF DIRECTORS
ROBERT V. GUNDERSON, JR.
Secretary
Palo Alto, California
May , 1996
IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN,
DATE AND PROMPTLY RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED POSTAGE-PAID
ENVELOPE. YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO THE SPECIAL MEETING. IF
YOU DECIDE TO ATTEND THE SPECIAL MEETING AND WISH TO CHANGE YOUR PROXY VOTE, YOU
MAY DO SO AUTOMATICALLY BY VOTING IN PERSON AT THE MEETING.
<PAGE> 4
LEGATO SYSTEMS, INC.
------------------------
PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD JULY 2, 1996
The enclosed Proxy is solicited on behalf of the Board of Directors of
Legato Systems, Inc. (the "Company") for use at the Special Meeting of
Stockholders (the "Special Meeting") to be held on Tuesday, July 2, 1996 at 8:00
a.m., Pacific Daylight Time, and at any adjournment or postponement thereof, for
the purposes set forth herein and in the accompanying Notice of Special Meeting
of Stockholders. The Special Meeting will be held at the Company's principal
executive offices located at 3145 Porter Drive, Palo Alto, California 94304. The
Company's telephone number at that location is (415) 812-6000.
These proxy solicitation materials were first mailed on or about May ,
1996 to all stockholders entitled to vote at the Special Meeting.
INFORMATION CONCERNING VOTING AND SOLICITATION
RECORD DATE AND SHARES OUTSTANDING
Only stockholders of record at the close of business on May 24, 1996 (the
"Record Date") are entitled to notice of and to vote at the Special Meeting. As
of the Record Date, shares of the Company's Common Stock were issued
and outstanding. No shares of Preferred Stock were outstanding.
PROXIES; REVOCABILITY OF PROXIES
Whether or not you are able to attend the Special Meeting, you are urged to
complete and return the enclosed proxy, which is solicited by the Company's
Board of Directors and which will be voted as described below. Any proxy given
pursuant to this solicitation may be revoked by the person giving it at any time
prior to its use by delivering to the Secretary of the Company a written
instrument revoking the proxy or a duly executed proxy bearing a later date or
by attending the Special Meeting and voting in person.
VOTING AND SOLICITATION
Each stockholder is entitled to one vote for each share of Common Stock on
all matters to be voted on by the stockholders. The affirmative vote of a
majority of the outstanding shares of Common Stock is required to approve the
only matter scheduled to be voted on at the Special Meeting: the amendment and
restatement of the Company's Certificate of Incorporation to (i) effect a
two-for-one split of the Company's Common Stock, (ii) increase the number of
authorized shares of the Company's Common Stock from 20,000,000 to 50,000,000
shares, and (iii) increase the number of authorized shares of the Company's
Preferred Stock from 2,000,000 to 5,000,000 shares (the "Restatement"). All
votes will be tabulated by the inspector of election appointed for the meeting,
who will separately tabulate affirmative and negative votes, abstentions and
broker non-votes.
Upon the execution and return of the enclosed form of proxy, the shares
represented thereby will be voted in accordance with the terms of the proxy,
unless the proxy is revoked. If no directions are indicated in such proxy, the
shares represented thereby will be voted "FOR" the approval of the proposed
Restatement. For purposes of the approval of the proposed Restatement, both
abstentions and broker non-votes will have the same effect as votes against this
proposal.
The total cost of soliciting proxies, including the preparation, assembly,
printing and mailing of this Proxy Statement, the proxy and any additional
soliciting material furnished to stockholders, will be borne by the Company and
is currently estimated to be approximately $4,500. The Company has retained the
services of Beacon Hill Partners, Inc. to assist in the solicitation of proxies.
Copies of solicitation material will be furnished to brokerage houses,
fiduciaries, and custodians holding shares in their names that are beneficially
1
<PAGE> 5
owned by others so that they may forward such solicitation material to such
beneficial owners. In addition, the Company may reimburse brokerage firms and
other persons representing beneficial owners of shares for their expenses in
forwarding solicitation material to such beneficial owners. The original
solicitation of proxies by mail may be supplemented by solicitation by certain
of the Company's directors, officers and employees, personally or by telephone,
telegram, letter or facsimile. No additional compensation will be paid to these
individuals for any such services. Except as described above, the Company does
not presently intend to solicit proxies other than by mail.
QUORUM; ABSTENTIONS; BROKER NON-VOTES
A majority of the outstanding shares of Common Stock entitled to vote on
the Record Date, whether present in person or represented by proxy, shall
constitute a quorum for the transaction of business at the Special Meeting and
any adjournment or postponement thereof. The Company intends to include
abstentions and broker non-votes as present or represented for purposes of
establishing a quorum for the transaction of business.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
Proposals of the Company's stockholders intended to be presented at the
1997 Annual Meeting of Stockholders must be received by the Company at its
offices at 3145 Porter Drive, Palo Alto, California 94304, no later than January
16, 1997, and must satisfy the conditions established by the Securities and
Exchange Commission for stockholder proposals to be included in the Company's
proxy statement and related proxy materials for that meeting. Such proposals
should be addressed to the attention of Rick Ruiz, Corporate Finance.
STOCK OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of April 30, 1996, certain information
with respect to shares beneficially owned by (i) each person who is known by the
Company to be the beneficial owner of more than five percent of the Company's
outstanding shares of Common Stock, (ii) each of the Company's directors, (iii)
the Company's Chief Executive Officer and four other most highly compensated
executive officers for the year ended December 31, 1995, and (iv) all current
directors and executive officers as a group. Beneficial ownership has been
determined in accordance with Rule 13d-3 under the Exchange Act. Under this
rule, certain shares may be deemed to be beneficially owned by more than one
person (if, for example, persons share the power to vote or the power to dispose
of the shares). In addition, shares are deemed to be beneficially owned by a
person if the person has the right to acquire shares (for example, upon exercise
of an option or warrant) within sixty (60) days of the date as of which the
information is provided; in computing the percentage ownership of any person,
the amount of shares is deemed to include the amount of shares beneficially
owned by such person (and only such person) by reason of such acquisition
rights. As a result, the percentage of outstanding shares of any person as shown
in the following table does not necessarily reflect the person's actual voting
power at any particular date.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED(1)(2)
----------------------------------------
BENEFICIAL OWNER NUMBER OF SHARES PERCENTAGE OF CLASS
- ----------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Greylock Capital, Limited Partnership(3)................... 1,160,440 14.18%
1 Federal Street
Boston, MA 02110
Entities affiliated with Mayfield Fund(4).................. 1,132,743 13.84%
2800 Sand Hill Road
Menlo Park, CA 94025
Putnam Investment Management............................... 906,000 11.07%
One Post Office Square, 12th Floor
Boston, MA 02109
</TABLE>
2
<PAGE> 6
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED(1)(2)
----------------------------------------
BENEFICIAL OWNER NUMBER OF SHARES PERCENTAGE OF CLASS
- ----------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Pilgrim Baxter & Associates................................ 904,500 11.05%
1255 Drummers Lane, Suite 300
Wayne, PA 19087
Louis C. Cole(5)........................................... 558,973 6.71%
3145 Porter Drive
Palo Alto, CA 94304
Stephen L. Ruvolo(6)....................................... 43,000 *
John A. Siegel(7).......................................... 66,149 *
Kent D. Smith(8)........................................... 100,500 1.21%
Gilbert C. Wai(9).......................................... 69,000 *
Eric A. Benhamou(10)....................................... 41,000 *
Kevin A. Fong(4)........................................... 1,157,217 14.12%
David N. Strohm(3)......................................... 1,182,440 14.42%
Phillip E. White(11)....................................... 37,111 *
All directors and executive officers as a group
(12 persons)(12)......................................... 3,749,462 42.28%
</TABLE>
- ---------------
* Less than 1% of the outstanding shares of Common Stock.
(1) Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, the persons named in the table have
sole voting and investment power with respect to all shares of Common
Stock. To the Company's knowledge, the entities named in the table have
sole voting and investment power with respect to all shares of Common Stock
shown as beneficially owned by them.
(2) The number of shares of Common Stock deemed outstanding includes shares
issuable pursuant to stock options that may be exercised within sixty (60)
days after April 30, 1996.
(3) Greylock Capital, Limited Partnership ("Greylock"), is the beneficial owner
of 1,160,400 shares of Common Stock. Mr. Strohm, a director of the Company
and a General Partner of Greylock, is the beneficial owner of an additional
10,000 shares of Common Stock and holds options exercisable into 12,000
shares of Common Stock under the 1995 Plan. Greylock disclaims beneficial
ownership in the additional shares and options held by Mr. Strohm. Mr.
Strohm disclaims beneficial ownership of the shares held by Greylock except
to the extent of his pecuniary interest therein arising from his general
partnership interest in Greylock.
(4) The beneficial ownership of Common Stock by entities affiliated with
Mayfield Fund includes 1,087,433 shares held by Mayfield VI, a California
Limited Partnership ("Mayfield VI"), and 45,310 shares held by Mayfield
Associates, a California Limited Partnership ("Mayfield Associates"). Mr.
Fong, a director of the Company and a General Partner of Mayfield VI
Management Partners, a California Limited Partnership, which is the general
partner of Mayfield VI, is the beneficial owner of an additional 12,474
shares of Common Stock and holds options exercisable into 12,000 shares of
Common Stock under the Company's 1995 Stock Option/Stock Issuance Plan (the
"1995 Plan"). Mayfield VI and Mayfield Associates disclaim beneficial
ownership in the additional shares and options held by Mr. Fong. Mr. Fong
disclaims beneficial ownership in the shares held by Mayfield VI and
Mayfield Associates except to the extent of his pecuniary interest therein
arising from his general partnership interest in Mayfield VI. Messrs. F.
Gibson Myers, Jr., A. Grant Heidrich III, Michael J. Levinthal, William D.
Unger, Wendell G. Van Auken III and Kevin A. Fong are affiliated with
Mayfield VI and share voting and investment powers over the shares held by
Mayfield VI. Except for Mr. Fong, these individuals also share voting and
investment powers over the shares held by Mayfield Associates. All five of
these individuals disclaim beneficial ownership of the stock held by the
other individuals and by the partnerships except as to their pecuniary
interests in the partnerships.
(5) Includes options exercisable into 146,800 shares of Common Stock under the
Company's 1989 Stock Option and Restricted Stock Plan (the "1989 Plan") and
412,173 shares held by The Louis and
3
<PAGE> 7
Jolene Cole 1988 Revocable Trust, dated November 7, 1988 (the "Cole
Trust"), of which Mr. Cole is a trustee. Excludes 16,000 shares transferred
by the Cole Trust to Mr. Cole's sons, as Mr. Cole has no voting or
dispositive power over such shares.
(6) Includes options exercisable into 43,000 shares of Common Stock under the
1989 Plan.
(7) Includes options exercisable into 65,660 shares of Common Stock under the
1989 Plan.
(8) Includes options exercisable into 100,000 shares of Common Stock under the
1989 Plan.
(9) Includes options exercisable into 69,000 shares of Common Stock under the
1989 Plan.
(10) Includes options exercisable into 25,000 shares of Common Stock under the
1989 Plan and 12,000 shares of Common Stock under the 1995 Plan.
(11) Includes options exercisable into 20,000 shares of Common Stock under the
1989 Plan and 12,000 shares of Common Stock under the 1995 Plan.
(12) Includes options exercisable into 633,585 shares of Common Stock under the
1989 Plan and options exercisable into 48,000 shares of Common Stock under
the 1995 Plan.
PROPOSAL TO AMEND AND RESTATE THE CERTIFICATE OF INCORPORATION
The Board of Directors has determined that it is in the best interests of
the Company and its stockholders to amend and restate the Company's Certificate
of Incorporation to effect a two-for-one split of the Company's Common Stock
(the "Stock Split"). In addition, the Board of Directors has determined that it
is in the best interests of the Company and its stockholders to amend and
restate the Company's Certificate of Incorporation to increase the number of
authorized shares of Common Stock of the Company from 20,000,000 to 50,000,000
shares and to increase the number of authorized shares of Preferred Stock of the
Company from 2,000,000 to 5,000,000 shares. Accordingly, the Board of Directors
has unanimously approved the proposed Amended and Restated Certificate of
Incorporation, in substantially the form attached hereto as Exhibit A (the
"Restated Certificate"), and hereby solicits the approval of the Company's
stockholders of the Restated Certificate.
If the stockholders approve the Restated Certificate, the Board of
Directors currently intends to file the Restated Certificate with the Secretary
of State of the State of Delaware as soon as practicable following such
stockholder approval. In connection with the Stock Split, the numbers of shares
of Common Stock subject to outstanding options and reserved for issuance under
the Company's various stock option and stock purchase plans would be
proportionately adjusted pursuant to the terms of such plans to reflect the
Stock Split described above, and the exercise prices of outstanding options
thereunder would be proportionately reduced. If the Restated Certificate is not
approved by the stockholders, the existing Certificate of Incorporation will
continue in effect and the Company will not effect the Stock Split.
PURPOSE OF THE PROPOSED AMENDMENT AND RESTATEMENT
The objectives of the Stock Split are to lower the market price of the
Company's Common Stock and to increase its trading activity, each of which is
expected to increase the liquidity and broaden the marketability of the
Company's Common Stock. The objectives of the increases in the authorized number
of shares of Common Stock and Preferred Stock are to ensure that the Company has
a sufficient number of authorized shares to effect the Stock Split and that the
Company has sufficient shares available for future issuances. For these reasons,
the Board of Directors believes that the Stock Split and the increase in the
authorized number of shares of Common Stock and Preferred Stock are in the best
interests of the Company and its stockholders.
The Board of Directors believes that it is prudent to increase the
authorized number of shares of Common Stock and Preferred Stock to the proposed
levels in order to provide a reserve of shares available for
4
<PAGE> 8
issuance to meet business needs as they arise. Such future activities may
include, without limitation, financings, establishing strategic relationships
with corporate partners, providing equity incentives to employees, officers or
directors, or effecting stock splits or dividends. The additional shares of
Common Stock or Preferred Stock authorized may also be used to acquire or invest
in complementary businesses or products or to obtain the right to use
complementary technologies. Although the Company has no present obligation to
issue additional shares of Common Stock or Preferred Stock (except pursuant to
employee stock incentive plans), the Company continues to evaluate and conduct
discussions with third parties with respect to potential acquisitions or
investments. However, the Company has no current plans, agreements or
commitments, and is not currently engaged in any negotiations with respect to
any such transactions.
The additional Common Stock issuable upon the Stock Split would have rights
identical to the currently outstanding Common Stock of the Company. Adoption of
the proposed Restated Certificate would not affect the rights of the holders of
currently outstanding Common Stock of the Company, except for effects incidental
to increasing the number of shares of the Company's Common Stock outstanding.
POSSIBLE EFFECTS OF THE PROPOSED AMENDMENT AND RESTATEMENT
If the stockholders approve the proposed Restated Certificate, the Board of
Directors may cause the issuance of additional shares of Common Stock or
Preferred Stock without further vote of the stockholders of the Company, except
as provided under Delaware corporate law or under the rules of any securities
exchange on which shares of Common Stock and Preferred Stock of the Company are
then listed. Current holders of Common Stock have no preemptive or similar
rights, which means that current stockholders do not have a prior right to
purchase any new issue of capital stock of the Company in order to maintain
their proportionate ownership thereof. The issuance of additional shares of
Common Stock or Preferred Stock would decrease the proportionate equity interest
of the Company's current stockholders and, depending upon the price paid for
such additional shares, could result in dilution to the Company's current
stockholders.
In addition, the Board of Directors could use authorized but unissued
shares to create impediments to a takeover or a transfer of control of the
Company. For example, the Board of Directors has the authority to issue the
Preferred Stock in one or more series and to fix the rights, preferences,
privileges and restrictions thereof, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices,
liquidation preferences and the number of shares constituting any series or the
designation of such series, without further vote or action by the stockholders.
The issuance of Preferred Stock may have the effect of delaying, deferring or
preventing a change in control of the Company without further action by the
stockholders and may adversely affect the voting and other rights of the holders
of Common Stock. The issuance of Preferred Stock with voting and conversion
rights may adversely affect the voting power of the holders of Common Stock,
including the loss of voting control to others. At present, the Company has no
plans to issue any of the Preferred Stock. Accordingly, the increase in the
number of authorized shares of Common Stock and Preferred Stock may defer a
takeover attempt that holders of Common Stock may deem to be in their best
interest or in which holders of Common Stock may be offered a premium for their
shares over the market price. The Board of Directors is not currently aware of
any attempt by other persons or entities to take over or acquire the Company.
While it may be deemed to have potential anti-takeover effects, the proposed
amendment and restatement to increase the authorized Common Stock and Preferred
Stock is not prompted by any specific effort or takeover threat currently
perceived by management.
REQUIRED VOTE; RECOMMENDATION OF BOARD OF DIRECTORS
The affirmative vote of a majority of the outstanding shares of Common
Stock entitled to vote at the Special Meeting will be required to approve the
Restated Certificate. Both abstentions and broker non-votes are not affirmative
votes and, therefore, will have the same effect as votes against this proposal.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR" APPROVAL OF THE
RESTATED CERTIFICATE.
5
<PAGE> 9
TRANSACTION OF OTHER BUSINESS
The Board of Directors of the Company knows of no other matters which may
be brought before the Special Meeting. If any other matters properly come before
the Special Meeting, or any adjournment thereof, it is the intention of the
persons named in the accompanying form of Proxy to vote the Proxy on such
matters in accordance with their best judgment.
BY ORDER OF THE BOARD OF DIRECTORS,
ROBERT V. GUNDERSON, JR.
Secretary
Palo Alto, California
May , 1996
IMPORTANT
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN,
DATE AND PROMPTLY RETURN THE ACCOMPANYING PROXY IN THE ENCLOSED POSTAGE-PAID
ENVELOPE. YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO THE SPECIAL MEETING. IF
YOU DECIDE TO ATTEND THE SPECIAL MEETING AND WISH TO CHANGE YOUR PROXY VOTE, YOU
MAY DO SO AUTOMATICALLY BY VOTING IN PERSON AT THE MEETING.
THANK YOU FOR YOUR ATTENTION TO THIS MATTER. YOUR PROMPT RESPONSE WILL GREATLY
FACILITATE ARRANGEMENTS FOR THE SPECIAL MEETING.
6
<PAGE> 10
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
LEGATO SYSTEMS, INC.
A Delaware Corporation
(Pursuant to Sections 242 and 245
of the Delaware General Corporation Law)
LEGATO SYSTEMS, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, hereby certifies
as follows:
ONE: That the name of the corporation is Legato Systems, Inc. and that the
corporation was originally incorporated on September 15, 1988, under the name
Legato Network Services, Inc. pursuant to the General Corporation Law of the
State of Delaware.
TWO: That the Board of Directors of the corporation, by unanimous vote,
adopted resolutions proposing to amend and restate the Amended and Restated
Certificate of Incorporation of the corporation and authorizing the appropriate
officers of the corporation to solicit the vote of the stockholders therefor,
which resolution setting forth the proposed amendment and restatement is as
follows:
"RESOLVED, that the Certificate of Incorporation of the corporation (the
"Certificate") be amended and restated in its entirety as follows:
ARTICLE I
The name of this corporation is Legato Systems, Inc.
ARTICLE II
The address of the registered office of this corporation in the State of
Delaware is 32 Loockerman Square, Suite L-100 in the City of Dover, County of
Kent. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV
This corporation is authorized to issue two classes of stock to be
designated common stock ("Common Stock") and preferred stock ("Preferred
Stock"). The number of shares of Common Stock authorized to be issued is Fifty
Million (50,000,000), par value $0.0001 per share, and the number of shares of
Preferred Stock authorized to be issued is Five Million (5,000,000), par value
$0.0001 per share.
The Preferred Stock may be issued from time to time in one or more series,
without further stockholder approval. The Board of Directors is hereby
authorized, in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any wholly unissued series of Preferred Stock, within
the limitations and restrictions stated in this Amended and Restated Certificate
of Incorporation, to fix or alter the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, and the liquidation preferences of
any wholly unissued series of Preferred Stock, and the number of shares
constituting any such series and the designation thereof, or any of
A-1
<PAGE> 11
them, and to increase or decrease the number of shares of any series subsequent
to the issue of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall resume the status
that they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
Immediately upon the filing of this Amended and Restated Certificate of
Incorporation, each one (1) share of this corporation's outstanding Common
Stock, par value $0.0001 per share, shall be automatically split into two (2)
shares of this corporation's Common Stock, par value $0.0001 per share, without
any action required by the holder thereof.
ARTICLE V
Except as otherwise provided in this Amended and Restated Certificate of
Incorporation, in furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend, and rescind any or all of the Bylaws of this corporation.
ARTICLE VI
The number of directors of this corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws of
this corporation shall so provide.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of this corporation.
ARTICLE IX
A director of this corporation shall, to the full extent permitted by the
General Corporation Law of the State of Delaware as it now exists or as it may
hereafter be amended, not be liable to this corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Neither any
amendment nor repeal of this Article, nor the adoption of any provision of this
Amended and Restated Certificate of Incorporation inconsistent with this
Article, shall eliminate or reduce the effect of this Article in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article, would accrue or arise, prior to such amendment, repeal or adoption of
an inconsistent provision.
ARTICLE X
No action required to be taken or that may be taken at any annual or
special meeting of the stockholders of this corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
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<PAGE> 12
ARTICLE XI
To the fullest extent permitted by applicable law, this corporation is also
authorized to provide indemnification of (and advancement of expenses to) such
agents (and any other persons to which Delaware law permits this corporation to
provide indemnification) through Bylaw provisions, agreements with such agents
or other persons, vote of stockholders or disinterested directors or otherwise,
in excess of the indemnification and advancement otherwise permitted by Section
145 of the General Corporation Law of the State of Delaware, subject only to
limits created by applicable Delaware law (statutory or non-statutory), with
respect to actions for breach of duty to this corporation, its stockholders, and
others.
Any repeal or modification of any of the foregoing provisions of this
Article shall not adversely affect any right or protection of a director,
officer, agent or other person existing at the time of, or increase the
liability of any director of this corporation with respect to any acts or
omissions of such director, officer or agent occurring prior to such repeal or
modification.
ARTICLE XII
This corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation."
* * * *
THREE: That thereafter said amendment and restatement was duly adopted in
accordance with the provisions of Section 242 and Section 245 of the General
Corporation Law of the State of Delaware by obtaining a majority vote of each of
the Common Stock and Preferred Stock, in favor of said amendment and restatement
in the manner set forth in Section 222 of the General Corporation Law.
IN WITNESS WHEREOF, LEGATO SYSTEMS, INC. has caused its corporate seal to
be hereunto affixed and this Amended and Restated Certificate of Incorporation
to be signed by its President and attested to by its Secretary this day of
, 1996.
LEGATO SYSTEMS, INC.
--------------------------------------
Louis C. Cole,
President
ATTEST:
- ---------------------------------------------------------
Robert V. Gunderson, Jr.,
Secretary
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<PAGE> 13
PROXY PROXY
LEGATO SYSTEMS, INC.
SPECIAL MEETING OF STOCKHOLDERS
JULY 2, 1996
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF LEGATO SYSTEMS, INC.
The undersigned revokes all previous proxies, acknowledges receipt of the notice
of stockholders meeting to be held July 2, 1996 and the proxy statement, and
appoints Louis C. Cole and Kent D. Smith, or either of them, the proxy for the
undersigned, with full power of substitution, to vote all shares of Common Stock
of Legato Systems, Inc. that the undersigned is entitled to vote, either on his
or her own behalf or on behalf of another person or persons or an entity or
entities, at the Special Meeting of Stockholders of the Company to be held at
the Company's principal executive offices at 3145 Porter Drive, Palo Alto,
California 94304, on Tuesday, July 2, 1996 at 8:00 a.m., and at any adjournment
or postponement thereof, with the same force and effect as the undersigned might
or could do if personally present thereat. The shares represented by this proxy
shall be voted in the manner set forth on the reverse side.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
<PAGE> 14
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR EACH OF THE PROPOSALS LISTED BELOW.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS SPECIFIED BELOW. THIS PROXY
WILL BE VOTED FOR PROPOSALS NO. 1 AND 2 IF NO SPECIFICATION IS MADE BELOW.
1. Proposal to amend and restate the Company's Certificate of Incorporation to
(i) effect a two-for-one split of the Company's Common Stock, (ii) increase
the number of authorized shares of the Company's Common Stock from
20,000,000 to 50,000,000 shares, and (iii) increase the number of
authorized shares of the Company's Preferred Stock from 2,000,000 to
5,000,000 shares.
For Withheld Abstain
/ / / / / /
2. Proposal to transact such other business as may properly come before the
Special Meeting and any adjournment or postponement thereof.
MARK HERE FOR ADDRESS
CHANGE AND NOTE AT LEFT / /
_______________________________________
Signature Date
_______________________________________
Signature Date
Please sign exactly as your name(s) is
(are) shown on the share certificate to
which the Proxy applies. When shares are
held by joint tenants, both should sign.
When signing as an attorney, executor,
administrator, trustee or guardian,
please give full title of such. If a
corporation, please sign in full
corporate name by President or other
authorized officer. If a partnership,
please sign in partnership name by
authorized person.
LEGATO SYSTEMS, INC.
PLEASE MARK VOTE IN OVAL IN THE FOLLOWING MANNER USING DARK INK ONLY. /X/
