AMENDMENT
TO THE INFORMIX CORPORATION
FIRST AMENDED AND RESTATED RIGHTS AGREEMENT
NOVEMBER 17, 1997
WHEREAS, Informix Corporation (the "Company") and BankBoston, N.A. (the
"Rights Agent") are parties to the First Amended and Restated Rights Agreement,
dated as of August 12, 1997 (the "Rights Agreement");
WHEREAS, the Company's Board of Directors has authorized the designation
and exchange of the Company's Series A-1 Convertible Preferred Stock and the
designation and sale of the Company's Series B Convertible Preferred Stock;
WHEREAS, the Company has determined that pursuant to Section 27 of the
Rights Agreement, the Rights Agreement may be amended as set forth herein
without the approval of the holders of the Rights (as defined in the Rights
Agreement);
NOW THEREFORE, in consideration of the promises and mutual agreements set
forth in the Rights Agreement, the parties hereby amend the Rights Agreement as
follows:
The Definition of "Acquiring Person" set forth in Section 1(a) is hereby
amended, in its entirety, to provide that:
"ACQUIRING PERSON" shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of
20% or more of the Common Shares then outstanding, but shall not include the
Company, any Subsidiary of the Company or any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall be deemed to be an "Acquiring Person" (i) as the
result of an acquisition of Common Shares by the Company which, by reducing
the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 20% or more of the Common Shares
of the Company then outstanding; PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of 20% or more of the Common Shares of the
Company then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person," or (ii) if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares so that such
Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph (a); and
PROVIDED FURTHER that no Xxxxxxxx Party (as defined below) shall be deemed an
"Acquiring Person" as a result of its being the Beneficial Owner of any
securities (any such securities, "Xxxxxxxx Securities") issued or issuable
pursuant to the Subscription Agreement (including the exhibits that are a
part thereof, and in particular including any Common Shares which have been
or may be issued upon conversion of shares of preferred stock issued
thereunder or upon exercise of warrants granted thereunder for the purchase
of preferred stock) dated August 12, 1997 between the Company and Xxxxxxxx,
as amended, and a related Exchange Agreement between the Company and Xxxxxxxx
dated as of November 17, 1997; and PROVIDED FURTHER that no Series B Party
(as defined below) shall be deemed an "Acquiring Person" as a result of its
being the Beneficial Owner of any securities (any such securities, "Series B
Securities") issued or issuable pursuant to the Securities Purchase Agreement
(including the exhibits that are a part thereof, and in particular including
any Common Shares which have been or may be issued upon conversion of shares
of preferred stock issued thereunder, issued upon exercise of the warrants to
be granted thereby or otherwise issued in accordance with the terms of such
agreement or related documents) dated as of November 17, 1997 between the
Company and the Purchasers named therein. A "Xxxxxxxx Party" shall include
(i) Xxxxxxxx International Limited, a company organized under the laws of the
Cayman Islands ("Xxxxxxxx"), Xxxxxxxx Asset Management, Inc., Polaris Fund,
L.P., and The Xxxxxxxx Fund, L.P., (ii) any Affiliate of Xxxxxxxx, (iii) any
creditor of Xxxxxxxx who acquires Xxxxxxxx Securities upon the exercise of
creditor rights in connection with a bona fide credit arrangement, and (iv)
any other person who acquires Xxxxxxxx Securities provided that such person
has stated or intends to state in a timely fashion in a filing pursuant to
Regulation 13D-G under the Securities Exchange Act of 1934, as amended, or
any successor provision thereto, that such person has acquired such
securities in the ordinary course of business and not with the purpose or
effect of changing or influencing control of Informix, nor in connection with
or as a participant in any transaction having such purpose or effect,
including any transaction subject to Rule 13d-3(b). A "Series B Party" shall
include each of (i) Proprietary Convertible Investment Group, Inc., Capital
Ventures International, and C.C. Investments, L.D.C., (the "Purchasers") (ii)
any Affiliate of a Purchaser, (iii) any creditor of a Purchaser who acquires
Series B Securities upon the exercise of creditor rights in connection with a
bona fide credit arrangement, and (iv) any other person who acquires Series B
Securities provided that such person has stated or intends to state in a
timely fashion in a filing pursuant to Regulation 13D-G under the Securities
Exchange Act of 1934, as amended, or any successor provision thereto, that
such person has acquired such securities in the ordinary course of business
and not with the purpose or effect of changing or influencing control of
Informix, nor in connection with or as a participant in any transaction
having such purpose or effect, including any transaction subject to Rule
13d-3(b).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
INFORMIX CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx, Xx.
---------------------------------
Xxxxxx Xxxxxxxxx, Xx., Chairman of the Board,
President and Chief Executive Officer
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
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Title: Director
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[SIGNATURE PAGE]
[AMENDMENT TO THE INFORMIX CORPORATION FIRST AMENDED AND RESTATED RIGHTS
AGREEMENT]
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