REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of November 17,
1997, by and among Informix Corporation, a Delaware corporation (the "COMPANY"),
and each of the entities whose names appear on the signature pages hereof. Such
entities are each referred to herein as a "PURCHASER" and, collectively, as the
"PURCHASERS".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"SECURITIES PURCHASE AGREEMENT"), to issue and sell to each Purchaser shares
(the "PREFERRED SHARES") of the Company's Series B Convertible Preferred Stock
(the "PREFERRED STOCK"). The Preferred Shares are convertible into (i) shares
(the "CONVERSION SHARES") of the Company's Common Stock (the "COMMON STOCK"),
and (ii) a Warrant (each, a "WARRANT" and, when taken together with all of the
warrants issued pursuant to the Company's Certificate of Designation (the
"CERTIFICATE OF DESIGNATION"), the "Warrants") entitling the holder thereof to
purchase shares (the "WARRANT SHARES") of Common Stock. In order to induce the
Purchasers to enter into the Securities Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933,
as amended (the "SECURITIES ACT"), and under applicable state securities laws.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Securities Purchase Agreement.
In consideration of each Purchaser entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meanings
specified:
(a) "CLOSING" shall have the meaning specified in the Securities
Purchase Agreement;
(b) "REGISTRATION DEADLINE" means the one hundred and fiftieth
(150th) day following Closing;
(c) "HOLDER" means any person owning or having the right to acquire,
through conversion of Preferred Shares or exercise of the Warrant,
Registrable Securities, including initially each Purchaser and
thereafter any permitted assignee thereof;
(d) "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration
statement or statements in compliance with the Securities Act and
pursuant to Rule 415 under the Securities Act ("RULE 415") or any
successor rule providing for the offering of securities on a
continuous or delayed basis
("REGISTRATION STATEMENT"), and the declaration or ordering of
effectiveness of the Registration Statement by the Securities and
Exchange Commission (the "COMMISSION"); and
(e) "REGISTRABLE SECURITIES" means the Conversion Shares, the Warrant
Shares and the Dividend Payment Shares (as defined in the Certificate
of Designation), and any other shares of Common Stock issuable
pursuant to the terms of the Preferred Stock, whether as a dividend,
payment of a redemption price or otherwise, and any shares of capital
stock issued or issuable from time to time (with any adjustments) in
replacement of, in exchange for or otherwise in respect of the
Conversion Shares, the Warrant Shares or such Dividend Payment Shares,
including without limitation any securities received by a Holder in
connection with a Change of Control Transaction (as defined in the
Certificate of Designation), but excluding any securities that have
already been sold to the public by the Holder thereof and any
securities received by a Holder in connection with a Change of Control
Transaction and which may be publicly sold without any restriction
under applicable securities law as to the amount of such securities
that may be sold.
2. MANDATORY REGISTRATION.
(a) On or before the forty-fifth (45th) day following Closing, the
Company shall prepare and file with the Commission a Registration Statement on
Form S-1 as a "shelf" registration statement under Rule 415 covering the resale
of at least 150% of the number of shares of Registrable Securities then issuable
on conversion of the Preferred Shares (assuming that the Conversion Date (as
defined in the Certificate of Designation) for such conversion were to occur on
the date on which the Registration Statement is so filed) and exercise of the
Warrants. The Registration Statement shall state, to the extent permitted by
Rule 416 under the Securities Act, that it also covers such indeterminate number
of shares of Common Stock as may be required to effect (i) conversion of the
Preferred Shares to prevent dilution resulting from stock splits, stock
dividends or similar events, or by reason of changes in the Conversion Price in
accordance with the terms of the Certificate of Designation and (ii) exercise of
the Warrants in full to prevent dilution resulting from stock splits, stock
dividends or similar events. The Company agrees that, upon becoming eligible to
file with the Commission a Registration Statement on Form S-3, the Company will
replace the Registration Statement on Form S-1 referred to above with a
Registration Statement on Form S-3.
(b) The Company shall use its best efforts to cause the Registration
Statement to become effective as soon as practicable following the filing
thereof, but in no event later than the Registration Deadline, and shall submit
to the Commission, within five (5) business days after the Company learns that
no review of the Registration Statement will be made by the staff of the
Commission or that the staff of the Commission has no further comments on the
Registration Statement, as the case may be, a request for acceleration of the
effectiveness of the Registration Statement to a time and date not later than
forty-eight (48) hours after the submission of such request, and maintain the
effectiveness of the Registration Statement until the earlier to occur of (i)
the date on which all of the
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Registrable Securities have been sold pursuant to the Registration Statement
and (ii) the date on which all of the remaining Registrable Securities (in
the reasonable opinion of counsel to the Purchasers) may be immediately sold
to the public without registration and without regard to the amount of
Registrable Securities which may be sold by a Holder thereof at a given time
(the "REGISTRATION PERIOD").
(c) If the Registration Statement is not declared effective by the
Commission on or before the Registration Deadline as a result of the failure by
the Company to use its best efforts to cause the Registration Statement to
become effective, including without limitation a failure to respond completely
and as soon as practicable to comments made by the Commission on the
Registration Statement, the Company shall pay to each Holder an amount equal to
the lesser of (x) two percent (2%) per month and (y) the highest rate permitted
by applicable law, TIMES the aggregate purchase price of the Preferred Shares
held by such Holder, accruing daily and compounded monthly, from the
Registration Deadline until the date on which the Registration Statement is
declared effective. The amounts paid or payable by the Company hereunder shall
be in addition to any other remedies available to such Holder at law or in
equity or pursuant to the terms of any other Transaction Document. Payments of
cash pursuant hereto shall be made within five (5) days after the end of each
period that gives rise to such obligation, provided that, if any such period
extends for more than thirty (30) days, payments shall be made at the end of
each thirty-day period.
(d) In the event that (A) the Registration Statement is not declared
effective by the twentieth (20th) Business Day following the Registration
Deadline, (B) after the Registration Statement has been declared effective by
the Commission, sales of Registrable Securities cannot be made by a Holder under
the Registration Statement for any reason not within the exclusive control of
such Holder (other than such Registrable Securities as are then freely saleable
pursuant to Rule 144(k) under the Securities Act and except during a Blackout
Period (as defined below)), (C) the Common Stock is not included for quotation
on the Nasdaq Stock Market ("NASDAQ") or listed on the New York Stock Exchange
or the American Stock Exchange, or (D) the Company breaches, in any material
respect, any material covenant or other material term or condition of the
Securities Purchase Agreement, the Registration Rights Agreement, the Warrants
or any other agreement, document, certificate or other instrument delivered in
connection with the transactions contemplated hereby or thereby, and such breach
continues for a period of ten (10) Business Days after written notice thereof to
the Company from a Holder; (each event described in clause (A), (B), (C) or (D)
being hereinafter referred to as a "REPRICING EVENT"), in addition to the
amounts payable pursuant to paragraph 2(c) above, (I) the Fixed Conversion Price
(as defined in the Certificate of Designation) for any conversion of Preferred
Shares occurring during the three Trading Days following the Cure Date (as
defined below) with respect to such event shall be deemed to be equal to the
lesser of (i) the lowest Conversion Price (as defined in the Certificate of
Designation) that would have applied had such conversion occurred during the
period between the date on which a Repricing Event occurs and the date on which
such Repricing Event is no longer continuing (a "CURE DATE") and (ii) the Fixed
Conversion Price that would otherwise be in effect on the relevant Conversion
Date (as defined in the Certificate of Designation) and (II) the Company shall
pay to such Holder an amount equal to the lesser of (x) one and one quarter
percent (1.25%) per month and (y) the highest rate permitted by applicable law,
TIMES the aggregate purchase price of the Preferred Shares held by such Holder,
accruing daily and compounded monthly, from the date on which such
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Repricing Event occurs until the applicable Cure Date. For purposes hereof,
"BLACKOUT PERIOD" means such day or days, not to exceed an aggregate of
thirty (30) days during any period of twelve (12) consecutive months, with
respect to which the Board of Directors of the Company determines in good
faith (A) that an amendment or supplement to the Registration Statement (as
defined below) or prospectus contained therein is necessary, in light of
subsequent events, in order to correct a material misstatement made therein
or to include information the absence of which would render the Registration
Statement or such prospectus materially misleading and (B) that the filing of
such amendment or supplement would result in the disclosure of information
which the Company has a BONA FIDE business purpose for preserving as
confidential; provided that the Company shall be entitled to impose no more
than two (2) Blackout Periods during any period of twelve (12) consecutive
months. In the event that the Company imposes a Blackout Period hereunder,
each Holder shall be entitled, upon written notice to the Company, to use as
a Conversion Price (as defined in the Certificate of Designation) for any
conversion of Preferred Shares occurring after the termination of such
Blackout Period the lower of (a) the Conversion Price in effect pursuant to
the terms of the Certificate of Designation and (b) the lowest Conversion
Price that would have applied had such conversion occurred during such
Blackout Period. The Company agrees that it will not disclose any material,
non-public information to any Holder regarding the reasons for imposing a
Blackout Period, except to a Holder who specifically requests in writing such
information.
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration Period, (i)
the Company proposes to register shares of Common Stock under the Securities Act
in connection with the public offering of such shares for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan or employee stock award or a registration on Form S-4 under
the Securities Act or any successor or similar form registering stock issuable
upon a reclassification, a business combination involving an exchange of
securities or an exchange offer for securities of the issuer or another entity)
(a "PROPOSED REGISTRATION") and (ii) a registration statement covering the sale
of all of the Registrable Securities is not then effective and available for
sales thereof by the Holders, the Company shall, at such time, promptly give
each Holder written notice of such Proposed Registration. Each Holder shall
have thirty (30) days from its receipt of such notice to deliver to the Company
a written request specifying the amount of Registrable Securities that such
Holder intends to sell and such Holder's intended method of distribution;
PROVIDED, HOWEVER, that in no event shall a Holder be entitled to sell
Registrable Securities pursuant to the Proposed Registration if such Registrable
Securities may then be sold pursuant to the Registration Statement filed by the
Company pursuant to Section 2 hereof. Upon receipt of such request, the Company
shall use its best efforts to cause all Registrable Securities which the Company
has been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such Holder;
PROVIDED, HOWEVER, that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 3 without obligation to the
Holder. If, in connection with any underwritten public offering for the account
of the Company, the managing underwriter(s) thereof shall impose a limitation on
the number of shares of Common Stock which may be included in the Registration
Statement because, in such underwriter(s)' judgment, marketing or other factors
dictate such
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limitation is necessary to facilitate public distributions, then the Company
shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which each
Holder has requested inclusion hereunder as such underwriter(s) shall permit.
Any exclusion of Registrable Securities shall be made pro rata among the
Holders seeking to include Registrable Securities in the Registration
Statement, in proportion to the number of Registrable Securities sought to be
included by such Holders; provided, however, that the Company shall not
exclude any Registrable Securities unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion of
such securities in such Registration Statement or are not entitled to pro
rata inclusion with the Registrable Securities; and provided, further,
however, that, after giving effect to the immediately preceding proviso, any
exclusion of Registrable Securities shall be made pro rata with holders of
other securities having the right to include such securities in the
Registration Statement.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including those
pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) in the event that the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive trading days to cover 125% of the Registrable
Securities then issued or issuable, the Company shall promptly amend the
Registration Statement, or file a new Registration Statement, or both, so as to
cover 150% of such Registrable Securities, in any event as soon as practicable,
but not later than the tenth business day following the last day of such three
day period. Any Registration Statement filed pursuant to this Section 4 shall
state that, to the extent permitted by Rule 416 under the Securities Act, such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of the Preferred
Shares or exercise of the Warrants in full. Unless and until such amendment or
new Registration Statement becomes effective, each Holder shall have the rights
described in Section 2(c) above;
(c) secure the designation and quotation of the Registrable
Securities on the Nasdaq Stock Market or the listing thereof on the New York
Stock Exchange or the American Stock Exchange;
(d) furnish to each Holder such number of copies of the prospectus
included in such Registration Statement, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Holder may reasonably request in order to facilitate the disposition of
such Holder's Registrable Securities;
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(e) use all commercially reasonable efforts to register or qualify
the Registrable Securities under the securities or "blue sky" laws of such
jurisdictions within the United States as shall be reasonably requested from
time to time by a Holder, and do any and all other acts or things which may be
necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction;
(f) in the event of an underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form reasonably acceptable to the
Company, with the managing underwriter of such offering (who shall be reasonably
acceptable to the Company);
(g) notify each Holder immediately upon the occurrence of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and as promptly as practicable, prepare, file and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(h) use all commercially reasonable efforts to prevent the issuance
of any stop order or other order suspending the effectiveness of such
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(i) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) an opinion, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, regarding the effectiveness of the Registration Statement and the
absence of any stop order, and (y) in the case of an underwriting, (A) an
opinion, dated such date, of such outside counsel, in form and substance as is
customarily given to underwriters in an underwritten public offering, and (B) a
letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to each Holder;
(j) provide each Holder and its representatives the opportunity to
conduct a reasonable inquiry of the Company's financial and other records during
normal business hours and make available its officers, directors and employees
for questions regarding information which such Holder may reasonably request in
order to fulfill any due diligence obligation on its part; and
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(k) permit counsel for each Holder (at such Holder's expense) to
review such Registration Statement and all amendments and supplements thereto,
and all correspondence between the Commission and the Company relating thereto,
a reasonable period of time prior to the filing thereof with the Commission.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of the Registrable Securities pursuant
to the Registration Statement, each Holder shall:
(a) furnish to the Company such information regarding itself and the
intended method of disposition of Registrable Securities as the Company shall
reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraphs 4(g) or 4(h), immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement until the filing of an amendment or supplement as described in
paragraph 4(g) or withdrawal of the stop order referred to in paragraph 4(h), as
the case may be; and
(c) in the event of an underwritten offering of the Registrable
Securities, enter into a customary and reasonable underwriting agreement and
execute such other documents as the managing underwriter for such offering may
reasonably request.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify and
hold harmless each Holder, the officers, directors, employees, agents and
representatives of such Holder, and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "1934 ACT"), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "LOSSES"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company will reimburse such Holder, and each such
officer, director, employee, agent, representative or controlling person for any
legal or other expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the
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Company (which consent will not be unreasonably withheld), nor shall the
Company be obligated to indemnify any person for any Loss to the extent that
such Loss arises out of or is based upon and in conformity with written
information furnished by such person expressly for use in such Registration
Statement; and provided, further, that the Company shall not be required to
indemnify any person to the extent that any Loss results from such person
selling Registrable Securities (i) to a person to whom there was not sent or
given, at or prior to the written confirmation of the sale of such shares, a
copy of the prospectus, as most recently amended or supplemented, if the
Company has previously furnished or made available copies thereof or (ii)
during any period following written notice by the Company to such Holder of
an event described in Section 4(g) or 4(h).
(b) To the extent permitted by law, each Holder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any Losses to the extent (and only to the extent)
that any such Losses arise out of or are based upon and in conformity with
written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder (which consent will
not be unreasonably withheld); provided, that, in no event shall any indemnity
under this subsection 6(b) exceed the net purchase price of securities sold by
such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 6 with respect to such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6 or
with respect to any other action.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable or insufficient to hold harmless an indemnified
party for any reason, the Company and each Holder agree, severally and not
jointly, to contribute to the aggregate Losses to which the Company or
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such Holder may be subject in such proportion as is appropriate to reflect
the relative fault of the Company and such Holder in connection with the
statements or omissions which resulted in such Losses; provided, however,
that in no case shall such Holder be responsible for any amount in excess of
the net purchase price of securities sold by it under the Registration
Statement. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or by such Holder. The Company and each Holder agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person
who controls a Holder within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
such Holder shall have the same rights to contribution as such Holder, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer, director, employee,
agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion or redemption, if any, of the Preferred
Shares, the exercise of the Warrants, the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this
Agreement, or otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of Rule
144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing such Holder of any rule or regulation of the Commission which
permits the selling of any such securities without registration.
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8. MISCELLANEOUS.
(a) EXPENSES OF REGISTRATION. All expenses, other than underwriting
discounts and commissions and fees and expenses of counsel to each Holder,
incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(i) hereof, shall be borne
by the Company.
(b) AMENDMENT; WAIVER. Any provision of this Agreement may be
amended only pursuant to a written instrument executed by the Company and
Holders of two-thirds (2/3) of the outstanding Registrable Securities. Any
waiver of the provisions of this Agreement may be made only pursuant to a
written instrument executed by the party against whom enforcement is sought.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each Holder, each future Holder, and the Company. The failure of
any party to exercise any right or remedy under this Agreement or otherwise, or
the delay by any party in exercising such right or remedy, shall not operate as
a waiver thereof.
(c) NOTICES. Any notice, demand or request required or permitted to
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day and (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier, addressed to the
parties as follows:
IF TO THE COMPANY:
Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
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WITH A COPY TO:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) TERMINATION. This Agreement shall terminate on the earlier to
occur of (a) the end of the Registration Period and (b) the date on which all of
the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) ASSIGNMENT. The rights of a Holder hereunder shall be assigned
automatically to any transferee of the Preferred Shares, the Warrants or
Registrable Securities from such Holder as long as: (i) the Company is, within a
reasonable period of time following such transfer, furnished with written notice
of the name and address of such transferee, (ii) the transferee agrees in
writing with the Company to be bound by all of the provisions hereof, (iii) such
transfer is made in accordance with the applicable requirements of the
Securities Purchase Agreement or the Warrants, as the case may be.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflict of laws provisions thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
INFORMIX CORPORATION
By: /s/ XXXXXX XXXXXXXXX, XX.
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Name: Xxxxxx Xxxxxxxxx, Xx.
Title: Chairman of the Board, President
and Chief Executive Officer
PURCHASER NAME: Proprietary Convertible Investment Group, Inc.
----------------------------------------------
By: /s/ XXXXX XXXXX
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice-President
-12-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
INFORMIX CORPORATION
By: /s/ XXXXXX XXXXXXXXX, XX.
------------------------------------
Name: Xxxxxx Xxxxxxxxx, Xx.
Title: Chairman of the Board, President
and Chief Executive Officer
PURCHASER NAME: CC INVESTMENTS, LDC
-------------------
By: /s/ XXX XXXXX
------------------------------------
Name: Xxx Xxxxx
Title: Director
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
INFORMIX CORPORATION
By: /s/ XXXXXX XXXXXXXXX, XX.
------------------------------------
Name: Xxxxxx Xxxxxxxxx, Xx.
Title: Chairman of the Board, President
and Chief Executive Officer
PURCHASER NAME: Capital Ventures International
--------------------------------
By: Heights Capital Management, Inc., its authorized agent
By: /s/ XXXXXX XXXXX
------------------------------------
Name: Xxxxxx Xxxxx
Title: President, Heights Capital Management, Inc.
