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EXHIBIT 10.2
INFORMATICA CORPORATION
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
This Agreement is made as of June 2, 1997 among Informatica
Corporation, a California corporation (the "Company"), and the persons and
entities listed on the Schedule of Purchasers attached hereto as Exhibit A (the
"Purchasers").
In consideration of the mutual promises, conditions and covenants
hereinafter set forth, the parties hereto agree as follows:
SECTION 1
AUTHORIZATION AND SALE OF PREFERRED STOCK
1.1 Authorization of Series D Preferred Stock. On or before the Closing
(as defined in Section 2.1 below), the Company will authorize the sale and
issuance of up to 2,275,000 shares (the "Shares") of its Series D Preferred
Stock (the "Series D Preferred") with such series having the rights,
preferences, privileges and restrictions as set forth in the Restated Articles
of Incorporation (the "Restated Articles") in the form attached to this
Agreement as Exhibit B.
1.2 Sale of Series D Preferred. Subject to the terms and conditions
hereof and at the Closing (as defined below), the Company will issue and sell to
each of the Purchasers, and the Purchasers will severally buy from the Company,
the total number of shares of Series D Preferred specified opposite such
Purchaser's name on the Schedule of Purchasers, at a purchase price of $4.00 per
share of the Series D Preferred for the aggregate purchase price set forth on
the Schedule of Purchasers opposite the name of each Purchaser. The Company's
agreements with each of the Purchasers are separate agreements, and sales of the
Series D Preferred to each of the Purchasers are separate sales.
SECTION 2
CLOSING DATE; DELIVERY
2.1. Closing. The closing of the purchase and sale of the Series D
Preferred hereunder shall be held at the offices of Xxxxxxxx & Xxxxxxxx LLP, 755
Page Mill Road, Palo Alto, California at 11:00 a.m., local time, on June 2, 1997
(the "Closing") or at such other time and place upon which the Company and the
Purchasers shall agree. The date of the Closing is hereinafter referred to as
the "Closing Date".
2.2. Delivery. At the Closing, the Company shall deliver to each
Purchaser a certificate or certificates, registered in such Purchaser's name set
forth on the Schedule of Purchasers, representing the number of Shares
designated on the Schedule of Purchasers to be purchased by such Purchaser,
against payment of the purchase price therefor, by check payable to the Company,
wire transfer per the Company's instructions, cancellation of indebtedness, or
any combination thereof.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in that certain Schedule of Exceptions
attached hereto as Exhibit C ("Schedule of Exceptions"), the Company represents
and warrants to the Purchasers, as of the Closing Date, as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
California and is in good standing under such laws. The Company has requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as currently conducted and as proposed to be conducted.
The Company is duly qualified to transact business and is in good standing in
each jurisdiction in which the failure so to qualify would have a material
adverse effect on its business or properties. The Company has furnished copies
of its Articles of Incorporation and By-Laws, as amended. Said copies are true,
correct and complete and contain all amendments through the Closing Date.
3.2 Corporate Power. The Company has now, or will have at the Closing
Date, as applicable, all requisite legal and corporate power and authority to
execute and deliver this Agreement, that certain Second Amended and Restated
Investor Rights Agreement in substantially the form attached hereto as Exhibit D
(the "Rights Agreement") that certain Second Amended and Restated Shareholders
Agreement in substantially the form attached hereto as Exhibit E (the
"Shareholders Agreement"), to sell and issue the Shares hereunder, to issue the
shares of its Common Stock (the "Common Stock") issuable upon conversion of the
Shares (the "Conversion Shares"), and to carry out and perform all of its
obligations under the terms of this Agreement and such other agreements and
instruments.
3.3 Subsidiaries. The Company has no subsidiaries or affiliated
companies and does not otherwise control, directly or indirectly, or have any
ownership interest in any corporation, partnership, business trust, association
or business entity.
3.4 Capitalization. The authorized capital stock of the Company
consists, or will, upon the filing of the Restated Articles, which will be filed
prior to the Closing Date, consist, of Thirteen Million Four Hundred Seventy
Thousand (13,470,000) shares of Common Stock, of which up to 2,740,010 shares
will be issued and outstanding immediately prior to the Closing, and Eight
Million One Hundred Seventy Thousand (8,170,000) shares of Preferred Stock.
2,250,000 shares of Preferred Stock of the Company shall have been designated
"Series A Preferred Stock," all of which will be issued and outstanding prior to
the Closing. One Million (1,000,000) shares of Preferred Stock of the Company
shall have been designated "Series B Preferred Stock," all of which will be
issued and outstanding prior to the Closing, and 2,645,000 shares of Preferred
Stock of the Company shall have been designated "Series C Preferred Stock,"
2,440,000 of which will be issued and outstanding prior to the Closing and
2,275,000 shares of Preferred Stock of the Company shall have been designated
"Series D Preferred," none of which will be issued and outstanding prior to the
Closing. All outstanding shares have been duly authorized and validly issued,
are fully paid and nonassessable, were issued in compliance with
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all federal and state securities laws, and were not issued in violation of any
preemptive rights. The Company has reserved 2,559,990 shares of its Common Stock
for issuance to employees, consultants, or directors under stock option plans,
stock purchase plans or arrangements approved by the Board of Directors of the
Company (the "Board"). The Series D Preferred shall have the rights,
preferences, privileges and restrictions set forth in the Restated Articles.
Except as set forth above or in the Rights Agreement, there are no other
authorized or outstanding subscription, warrant, option or other rights or
commitments (including, without limitation, preemptive rights or rights of first
refusal) to purchase or acquire from the Company any shares of any class of
capital stock of the Company or securities convertible into or exchangeable for
such capital stock. The Company is under no duty to redeem or to repurchase any
shares of any class or series of stock.
3.5 Authorization. All corporate action on the part of the Company, its
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement, the Rights Agreement and the Shareholders
Agreement by the Company, the authorization, sale, issuance and delivery of the
Shares, the Conversion Shares and the performance of all of the Company's
obligations hereunder and thereunder has been taken or will be taken prior to
the Closing, as applicable. Each of this Agreement and the Rights Agreement,
when each is executed and delivered by the Company, shall constitute a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except this Agreement and the Rights Agreement may be limited by principles of
public policy, and subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies. The Shares
when issued in compliance with the provisions of this Agreement, will be validly
issued, fully paid and nonassessable, and will have the rights, preferences,
privileges and restrictions described in the Restated Articles. The Conversion
Shares have been duly and validly reserved and, when issued in compliance with
the provisions of this Agreement and the Restated Articles, as the case may be,
will be validly issued, fully paid and nonassessable. The issuance and delivery
of the Shares and the Conversion Shares, as applicable, are not subject to any
preemptive rights or any liens or encumbrances; provided, however, that the
Shares and the Conversion Shares, as applicable, may be subject to restrictions
on transfer under state and/or federal securities laws as set forth herein or in
the Rights Agreement or in the Shareholders Agreement.
3.6 Title to Properties and Assets; Liens, etc. The Company has good and
marketable title to its properties and assets, and has good title to all its
leasehold interests, in each case subject to no mortgage, lien, or encumbrance,
other than the lien of current taxes not yet due and payable. All leases
pursuant to which the Company leases real or personal property are valid and
effective in accordance with their respective terms, and there exists no
material default on the part of the Company under any thereof.
3.7 Compliance with Other Instruments, None Burdensome, etc. The Company
is not in breach or violation of any term of its Articles of Incorporation or
By-Laws, of any term or provision of any mortgage, deed of trust, indebtedness,
indenture, contract, agreement, instrument, judgment or decree, or any order,
statute, rule or regulation, in each case where such breach or violation would
have a material adverse effect on the Company. No event or failure of
performance has occurred that, with the passage of time or the giving of notice,
would constitute
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such a breach or violation by the Company. The execution, delivery and
performance of and compliance with this Agreement and the Rights Agreement and
the issuance, sale and delivery of the Shares and the Conversion Shares, do not
conflict with, and will not result in a breach or violation of the terms,
conditions or provisions of, or constitute a default (or an event that, with the
giving of notice or passage of time, or both, could result in a default) under,
or result in the creation or imposition of any lien pursuant to the terms of,
the Company's Articles of Incorporation or Bylaws, or any statute, law, rule or
regulation, any state or federal order, judgment or decree, or any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company, or any of its properties, is subject.
3.8 Litigation, etc. There is no action, proceeding or investigation
pending or threatened against the Company or any of its properties or assets or
that questions the validity of this Agreement, the Rights Agreement or the
Shareholders Agreement or any action taken or to be taken in connection
herewith. The foregoing includes, without limitation, actions pending or
threatened involving the prior employment of any of the Company's employees,
their use in connection with the Company's business of any information or
techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. No action, suit or
proceeding has been instituted or is threatened by the Company.
3.9 Registration Rights. Except as set forth in the Rights Agreement,
the Company is not under any contractual obligation to register (as defined in
Section 1 of the Rights Agreement) any of its currently outstanding securities
or any of its securities which hereafter may be issued.
3.10 Certain Transactions. Neither the Company nor, to the Company's
knowledge, any of its officers has any interest (other than as holders of less
than 1% of the voting securities of a publicly-traded company), either directly
or indirectly, in any entity that currently (i) provides any services or
designs, produces or sells any products or product lines that are the same,
similar to or competitive with any activity or business in which the Company is
engaged or proposes to engage; (ii) is a supplier, customer, or creditor of the
Company; or (iii) has any direct or indirect interest in any asset or property,
real or personal, tangible or intangible, of the Company or any property, real
or personal, tangible or intangible, that is necessary for the Company's
business as currently conducted or proposed to be conducted. No employee,
shareholder, officer or director of the Company, or their spouses or children,
is indebted to the Company in any amount in excess of $5,000, nor is the Company
indebted to any of them other than for payment of salary for services rendered
and reasonable expenses.
3.11 Intangible Property. The Company has taken all appropriate security
measures to protect the secrecy, confidentiality and value of all trade secrets,
know-how, inventions, designs, masks, processes and technical data required to
conduct its business. To the Company's knowledge, the Company has sufficient
right, title and interest in and to all intangible property and technology or is
able to obtain on reasonable terms sufficient permits, licenses and other
authority necessary for its business as currently conducted or proposed to be
conducted. The Company has not received any communication alleging that the
Company has violated any third party's patent, maskwork right, moral right,
trademark, trade secret, trade name or copyright. To
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the Company's knowledge, the Company owns and possesses or is licensed under all
patents, patent applications, licenses, trademarks, service marks, trade names,
inventions, processes and copyrights necessary for the operation of its business
as currently conducted or proposed to be conducted. To the Company's knowledge,
none of the Company's officers or employees has improperly used or is making
improper use of any confidential information or trade secrets of others,
including those of any former employer of such officer or employee. The Company
is not aware of any violation by a third party of any of its patents, licenses,
trademarks, trade names, service marks, copyrights, trade secrets or other
proprietary rights.
3.12 Employees. The Company does not have any collective bargaining
agreements with any of its employees, and no labor union organizing activity is
pending or threatened with respect to the Company. To the Company's knowledge,
no employee is obligated under any agreement or judgment that would conflict
with such employee's obligation to use his or her best efforts to promote the
interests of the Company or that would conflict with the Company's business as
currently conducted or proposed to be conducted. To the Company's knowledge, no
employee is in violation of any term of any employment agreement, proprietary
information agreement, non-competition agreement or any other agreement relating
to such employee's relationship with any previous employer. To the Company's
knowledge, neither the execution nor delivery of this Agreement or the Rights
Agreement nor the carrying on of the Company's business by the employees of the
Company, nor the conduct of the Company's business as proposed, will conflict
with or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under which any
of such employee is now obligated. The Company does not believe it is or will be
necessary to utilize any inventions of any of its employees (or people it
currently intends to hire) made prior to their employment by the Company.
3.13 Insurance. The Company has fire, casualty and liability insurance
policies sufficient in amount to allow it to replace any of its tangible
properties that might be damaged or destroyed and adequate to protect the
Company and its financial condition against the risks involved in the business
of the Company.
3.14 Securities Laws; Governmental Consent. Based in part on the
accuracy of the Purchasers' representations and warranties set forth in Section
4, the offer, sale and issuance of the Shares as provided in this Agreement are
and will be exempt from the registration and prospectus delivery requirements of
the Securities Act of 1933 as amended (the "Securities Act"), and have been
qualified (or are exempt from qualification) under all applicable state
securities qualification requirements. Except for the filing of (a) the Restated
Articles with the Secretary of State of the State of California, and (b) notices
required or permitted to be filed after the Closing Date with certain United
States federal and state securities commissions, which notices the Company will
file on a timely basis, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority on the part
of the Company is required in connection with the valid execution, delivery and
performance of this Agreement or the Rights Agreement, the offer, sale or
issuance of the Shares (and the issuance of the Common Stock issuable upon
conversion of the Shares) or the consummation of any other transaction
contemplated hereby or by the Rights Agreement.
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3.15 Contracts and Other Commitments. The Company is not a party to any:
(a) agreement for the purchase of fixed assets that involves an
expenditure by the Company in excess of $50,000 or for the purchase of
materials, supplies or equipment in excess of that amount;
(b) lease or agreement under which the Company is lessee of or
holds or operates any property, real or personal, owned by any other person
under which payments to such person exceed $50,000 per year;
(c) agreement or other commitment or arrangement with any person
continuing for a period of more than three months from the Closing Date which
involves an expenditure or receipt by the Company in excess of $50,000.
3.16 Disclosure. The Company has fully provided the Purchasers with all
the information that the Purchasers have requested for deciding whether to
purchase the Shares. This Agreement with the Exhibits hereto, when taken as a
whole, do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein not
misleading.
3.17 Environmental and Safety Laws. To the best of its knowledge, the
Company is not in violation of any applicable statute, law, or regulation
relating to the environment or occupational health and safety, and to the best
of its knowledge, no material expenditures are or will be required in order to
comply with any such existing statute, law, or regulation.
3.18 Manufacturing and Marketing Rights. The Company has not granted
rights to manufacture, produce, assemble, license, market, or sell its products
to any other person and is not bound by any agreement that affects the Company's
exclusive right to develop, manufacture, assemble, distribute, market, or sell
its products.
3.19 Section 83(b) Elections. To the best of the Company's knowledge,
all elections and notices required by Section 83(b) of the Internal Revenue Code
and any analogous provisions of applicable state tax laws have been timely filed
by all individuals who have purchased shares of the Company's Common Stock.
3.20 Qualified Small Business Stock. The Company qualifies as a
"Qualified Small Business" as defined in Section 1202(d) of the Internal Revenue
Code of 1986, as amended (the "Code"), and covenants that so long as the shares
of Series D Preferred are held by a Purchaser (or a transferee in whose hands
the Shares are eligible to qualify as "Qualified Small Business Stock" as
defined in Section 1202(c) of the Code), it will use its reasonable efforts to
cause the Shares, Series A, Series B and Series C Preferred Stock of the Company
to qualify as Qualified Small Business Stock.
3.21 Small Business Concern. The Company with its "affiliates" (as that
term is defined in Section 121.401 of Title 13 of the Code of Federal
Regulations) is a "small business concern" within the meaning of the Small
Business Act and Section 121.802 of said Regulations.
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The information pertaining to the Company set forth in Small Business
Administration Forms 480, 652 and 1031 is accurate and complete.
3.22 SBA Requirements. The Company will promptly furnish to Bay Partners
SBIC, L.P. ("Bay"), upon request from Bay, all forms that may be required to be
filed with the Small Business Administration ("SBA") from time to time with
respect to the transactions contemplated by this Agreement and Bay's ownership
of the Shares, and will provide to Bay and the SBA such other information and
forms as Bay may reasonably request or the SBA may from time to time request
with respect to the transactions contemplated by this Agreement and Bay's
ownership of the Shares. The Company will not engage in any activities
prohibited by 13 C.F.R. Section 113 and will not directly or indirectly use the
proceeds from the issuance and sale of the Shares for any purpose for which a
small business investment company is prohibited from providing funds under 13
C.F.R. Section 107.901.
3.23 Company Representation. The Company agrees to use its best efforts
to cooperate with Bay in meeting its obligations under the Small Business
Investment Act of 1958, as amended, and the regulations thereunder. Proceeds of
Bay's investment will be used for working capital purposes or to otherwise
finance the anticipated growth of the Company. Failure to apply the proceeds for
such purposes shall give Bay the right to rescind its investment pursuant to SBA
Regulation Section 107.305.
3.24 Section 1202 Representation. The Company represents and warrants to
the purchasers that it qualifies as a "Qualified Small Business" as defined in
Section 1202(d) of the Code.
3.25 Section 1202 Covenant. After the Closing, the Company shall (a) not
make any purchase of its stock during the one-year period following the Closing
having an aggregate value, when added to the aggregate value of stock purchased
by the Company during the one-year period preceding the Closing, exceeding 5% of
the aggregate value of all of the Company's stock (such value determined as of
the date one year prior to the Closing) without having given the holders of the
Series D Preferred prior notice of such purchase and the opportunity to discuss
with the Company means of achieving such purchase without adversely affecting
the qualification of the Series D Preferred as "qualified small business stock"
set forth in Section 1202(c) of the Code and without such repurchase having been
approved by the Board, (b) use commercially reasonable efforts to use at least
80% (by value) of its assets in the active conduct of one or more qualified
trades or businesses for substantially all of the five-year period following the
Closing, and (c) not cease to be a C corporation which is an eligible
corporation, as defined by Section 1202(e)(4) of the Code. To the extent not
otherwise prohibited by applicable law or regulatory authorities, the Company
will include in all future stock option and stock purchase agreements providing
for the sale of unvested stock (subject to a right of repurchase) with employees
and consultants a provision that permits the Company to delay any repurchase of
shares under vesting provisions by a period of time sufficient to facilitate
compliance with the covenant contained in clause (a) hereof or to assign its
right to repurchase shares to a third party. Notwithstanding anything to the
contrary in this Section 3.25, the Company shall not be obligated to take any
action or refrain from taking any action which the Company has determined, in
good faith, is not in its best business interests.
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3.26 Financial Statements. The Company has furnished to the Purchasers
its unaudited balance sheet as of March 31, June 30, September 30, and December
31, 1996, respectively, and the related statements of operations, shareholders'
equity and cash flows for the quarters ended March 31, June 30, September 30,
and December 31, 1996, respectively (the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles (except for the omission of footnotes) and fairly present the
financial position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended. Except for liabilities and
obligations that are accrued or reserved against in the Financial Statements,
the Company has no material liabilities or obligations, absolute or contingent
(individually or in the aggregate), except liabilities and obligations which
have been incurred in the ordinary course of business subsequent to December 31,
1996 which have not been, either in any case or in the aggregate, materially
adverse.
3.27 Not a Real Property Holder. The Company is not a real property
holding corporation within the meaning of Internal Revenue Code 897(c)(2) and
any regulations promulgated thereunder.
3.28 No Accelerated Vesting. The Company is not party to any agreements,
regarding employee or consultant compensation or otherwise, pursuant to which
the vesting of an individual's right to exercise options, the lapsing of the
Company's right of repurchase or any other means of acquiring Common Stock or
Preferred Stock of the Company is accelerated upon the occurrence of a certain
event or events, including without limitation, a merger or acquisition of the
Company or any other event which results in a change in control of the Company.
No employee of the Company has the right to have the vesting of any rights to
acquire any Common Stock or Preferred Stock of the Company accelerated upon the
occurrence of a certain event or events, including without limitation, the
merger of acquisition of the Company which results in a change in control of the
Company.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to the
Company with respect to the purchase of the Shares as follows:
4.1 Investment Experience. It is aware of the Company's business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Shares
and the underlying Common Stock.
4.2 Investment Intent. It is acquiring the Shares and the underlying
Common Stock for investment only for its own account, and not with the view to,
or for resale in connection with, any distribution thereof. It understands that
the Shares to be purchased and the underlying Common Stock have not been, and
will not be, registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of
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which depends upon, among other things, the bona fide nature of the investment
intent of such Purchaser as expressed herein.
4.3 Rule 144. It acknowledges that the Shares and the underlying Common
Stock must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. It is
aware of the provisions of Rule 144 promulgated under the Securities Act ("Rule
144") which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the shares, the availability of
certain current public information about the Company, the resale occurring not
less than two years after the security was last held by the Company or an
affiliate of the Company, the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" and the number of
shares being sold during any three-month period not exceeding specified
limitations.
4.4 No Public Market. It understands that no public market now exists
for any of the securities issued by the Company, and that the Company has made
no assurances that a public market will ever exist for the Company's securities.
4.5 Access to Data. It has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management and the
opportunity to review the Company's facilities. It has also had an opportunity
to ask questions of officers of the Company.
4.6 Authorization. Each of this Agreement, the Rights Agreement and the
Shareholders Agreement when executed and delivered by such Purchaser will
constitute a valid and legally binding obligation of the Purchaser, enforceable
in accordance with its terms, except as the indemnification provisions of
Section 5(f) of the Rights Agreement may be limited by principles of public
policy, and subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
4.7 Legend.
(a) Each certificate representing (i) the Shares purchased
hereunder, (ii) the Conversion Shares and (iii) any other securities issued in
respect of the Shares upon any stock split, stock dividend, recapitalization,
merger or similar event (unless no longer required in the opinion of counsel for
the Company) shall be stamped or otherwise imprinted with a legend substantially
in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
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SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO
RULE 144 OF SUCH ACT."
(b) Such certificates shall also bear any legend required by the
laws of the State of California, including any legend required by the California
Department of Corporations and Sections 417 and 418 of the California
Corporations Code.
SECTION 5
CONDITIONS TO CLOSING
5.1 Conditions to Both the Purchasers' and the Company's Obligations.
The obligations of the Purchasers to purchase and of the Company to issue and
sell the Shares are subject to the fulfillment, on or prior to the Closing Date,
of all of the following conditions, any of which may be waived in whole or in
part by mutual agreement of the Purchasers and the Company:
(a) The Company shall have obtained all consents, permits and
waivers necessary or appropriate on the part of the Company for consummation of
the transactions contemplated by this Agreement, the Rights Agreement and the
Shareholders Agreement. Except for the notices required to be filed after the
Closing Date with certain federal and state securities commissions, which
notices the Company will file on a timely basis, the Company shall have obtained
all approvals of any federal or state governmental authority or regulatory body
that are required on the part of the Company in connection with the lawful sale
and issuance of the Shares and the Conversion Shares issuable upon conversion
thereof.
(b) At the Closing, the purchase of the Shares by the Purchasers
hereunder shall be legally permitted by all laws and regulations to which the
Purchasers or the Company is subject.
(c) The Restated Articles shall have been filed with the
Secretary of State of the State of California.
(d) The Company and the Purchasers shall have entered into the
Rights Agreement.
(e) The Company, the Purchasers, the holders of a majority of
outstanding shares of Series A, Series B and Series C Preferred Stock of the
Company, Xxxxxx Xxxxxxx and Xxxx Nesamoney shall have entered into that certain
Amended and Restated Shareholders Agreement in the form attached hereto as
Exhibit E.
5.2 Additional Conditions to the Purchasers' Obligations at the Closing.
In addition to the conditions set forth in Section 5.1 hereof, each Purchaser's
obligation to purchase the Shares is subject to the fulfillment, on or prior to
the Closing Date, of all of the following conditions (except as otherwise
provided below), any of which may be waived in whole or in part by such
Purchaser:
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(a) The representations and warranties made by the Company in
Section 3 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date with the same force and effect as if they had been
made on and as of the same date.
(b) The Company shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing Date.
(c) The Purchasers shall have received from Xxxxxxxx & Xxxxxxxx
LLP, counsel to the Company, an opinion letter addressed to them, dated as of
the Closing Date and in substantially the form attached hereto as Exhibit F.
(d) The Company shall have delivered to the Purchasers a
certificate, executed by the Chief Executive Officer of the Company and dated
the Closing Date, certifying to the fulfillment of the conditions specified in
Sections 5.1(a), 5.2(a) and 5.2(b).
(e) There shall have been no material adverse change in the
Company's business condition or prospects since December 31, 1996.
5.3 Additional Condition to Obligations of the Company at the Closing.
In addition to the conditions set forth in Section 5.1 hereof, the Company's
obligation to issue and sell the Shares to each Purchaser is subject to the
fulfillment to the Company's satisfaction, on or prior to the Closing Date, of
the conditions, which may be waived in whole or in part by the Company:
(a) The representations and warranties made by such Purchaser in
Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date with the same force and effect as if they had been
made on and as of the same date.
(b) Such Purchaser shall have performed all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing Date.
(c) Such Purchaser shall have paid the consideration for the
Shares to be sold to such Purchaser as set forth on Exhibit A hereto.
SECTION 6
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
6.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by the Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder as of the date of such certificate or instrument.
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6.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successor and assigns of the parties hereto.
6.4 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
Neither this Agreement nor any provision hereof may be amended, changed, waived,
discharged or terminated other than by a written instrument signed by the party
against who enforcement of any such amendment, change, waiver, discharge or
termination is sought; provided, however, that holders of a majority of the
outstanding Shares (or Conversion Shares or a combination thereof) may waive or
amend (either generally or in a particular instance and either retroactively or
prospectively), on behalf of all Purchasers and other holders of Shares, any
provisions hereof benefiting the Purchasers so long as the effect thereof will
be that all such Purchasers and other holders of Shares will be treated equally
in accordance with their pro rata share ownership. Any amendment or waiver
effected in accordance with this section shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities have been converted), each future holder
of all such securities and the Company.
6.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be effective upon receipt and shall be in writing and
may be delivered in person, by telecopy, electronic mail, express delivery
service or U.S. mail, in which event it may be mailed by first-class, certified
or registered, postage prepaid, addressed (a) if to a Purchaser, at the address
set forth on Exhibit A or at such other address as such Purchaser shall have
furnished the Company in writing, with a copy to Xxxxx X. Xxxxx, Esq., Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or
(b) if to the Company, at its address set forth at the beginning of this
Agreement, or at such other address as the Company shall have furnished to the
Purchaser in writing, with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxxx &
Xxxxxxxx LLP, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
6.6 Severability. If any provision of this Agreement shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6.7 Finder's Fees.
(a) The Company (i) represents and warrants that it has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold the Purchasers
harmless of and from any liability for commission or compensation in the nature
of a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company, or any of its employees or representatives, is responsible.
(b) Each Purchaser (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold the Company and
the other Purchasers harmless of and from any
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liability for commission or compensation in the nature of a finder's fee to any
broker or other person or firm (and the costs and expenses of defending against
such liability or asserted liability) for which such Purchaser, or any of its
employees or representatives, is responsible.
6.8 California Corporate Securities Law. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT MAY NOT HAVE BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
6.9 Titles and Subtitles. The titles of the Articles and Sections of
this Agreement are for convenience of reference only and in no way define,
limit, extend, or describe the scope of this Agreement or the intent of any of
its provisions.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.11 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party upon any breach or
default of any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character of any breach or default under this Agreement, or any
waiver of any provisions or conditions of this Agreement must be in writing and
shall be effective only to the extent specifically set forth in writing, and
that all remedies, either under this Agreement, by law or otherwise, shall be
cumulative and not alternative.
6.12 Consents. Any permission, consent, or approval of any kind or
character under this Agreement shall be in writing or detrimentally relied upon
and proved by clear and convincing evidence (other than alleged reliance) and
shall be effective only to the extent specifically set forth in such writing or
proved.
6.13 Payment of Fees and Expenses. Each party shall be responsible for
paying its own fees, costs and expenses in connection with this Agreement and
the transactions herein contemplated; provided however, that if the Closing is
effected, the Company agrees to pay the reasonable fees and expenses of special
counsel to the Purchasers in an amount not to exceed $7,500.
6.14 Construction of Agreement. No provision of this Agreement shall be
construed against either party as the drafter thereof.
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6.15 Section References. Unless otherwise stated, any reference
contained herein to a Section or subsection refers to the provisions of this
Agreement.
6.16 Variations of Pronouns. All pronouns and all variations thereof
shall be deemed to refer to the masculine, feminine, or neuter, singular or
plural, as the context in which they are used may require.
6.17 Exhibits. All Exhibits and attachments hereto shall be deemed to be
a part of this Agreement and are fully incorporated herein by this reference.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
"COMPANY"
Informatica Corporation,
a California corporation
By:_______________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
"PURCHASERS"
BAY PARTNERS SBIC, L.P. DISCOVERY VENTURES I, L.L.C.
By:_______________________________ By:______________________________________
Name:_____________________________ Name:____________________________________
Title:____________________________ Title:___________________________________
PARTECH U.S. PARTNERS III C.V. PARVEST U.S. PARTNERS II C.V.
By:_______________________________ By:______________________________________
Name:_____________________________ Name:____________________________________
Title:____________________________ Title:___________________________________
MULTINVEST LIMITED C.V. TRADEINVEST LIMITED
By:_______________________________ By:______________________________________
Name:_____________________________ Name:____________________________________
Title:____________________________ Title:___________________________________
16
PARTECH INTERNATIONAL PROFIT
SHARING PLAN
U/A Dated 1/1/92
FBO: Xxxxxx X. XxXxxxxx XXXXX XXXXXXX
By:_______________________________ By:______________________________________
Name:_____________________________ Name:____________________________________
Title:____________________________ Title:___________________________________
INTEGRAL CAPITAL PARTNERS III, L.P. INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management III, By: Integral Capital Management III,
L.P. its General Partner L.P. its Investment General Partner
By:_______________________________ By:______________________________________
a General Partner a General Partner
WPG ENTERPRISE FUND III, X.X. XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV, L.P.
By: WPG Venture Partners IV, L.L.C., By: WPG Venture Partners IV, L.L.C.,
General Partner General Partner
By:_______________________________ By:______________________________________
Xxxx Xxxxx, Managing Member Xxxx Xxxxx, Managing Member
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES IV CAYMAN, L.P.
By: WPG Venture Advisers, Ltd.,
Administrative General Partner _________________________________________
By:_______________________________ By:______________________________________
, Director Name:____________________________________
Title:___________________________________
17
EXHIBIT A
SCHEDULE OF PURCHASERS
Number of Aggregate
Series D Shares Purchase Price
--------------- --------------
Bay Partners SBIC, L.P. 187,500 $ 750,000
00000 Xxxxx Xx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Discovery Ventures I, LLC. 25,000 $ 100,000
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0
Xxxxx 000
Menlo Park, California 94025
U.S. Growth Fund Partners C.V. 200,000 $ 800,000
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 94111
Axa U.S. Growth Fund LLC 100,000 $ 400,000
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Double Black Diamond II LLC 18,750 $ 75,000
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Parvest U.S. Partners II C.V. 127,817 $ 511,268
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Tradeinvest Limited 6,212 $ 24,848
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Multinvest Limited C.V. 2,828 $ 11,312
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Partech U.S. Partners III C.V. 127,817 $ 511,268
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Partech International Profit Sharing Plan 1,576 $ 6,304
U/A Dated 1/1/92
FBO: Xxxxxx X. XxXxxxxx
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxxx 12,500 $ 50,000
00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Integral Capital Partners III, L.P. 254,795 $1,019,180
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Integral Capital Partners International III, L.P. 60,205 $ 240,820
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
WPG Enterprise Fund III, L.P. 498,937 $1,995,748
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx, Xxxx & Xxxxx Venture Associates IV, L.P. 554,063 $2,216,252
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxx, Xxxx & Xxxxx Venture Associates IV 72,000 $ 288,000
Cayman, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
================================
Total 2,250,000 $9,000,000
