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EXHIBIT 10.1
FORM OF
INFORMATICA CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into as of the 5th day of May, 1995, between
Informatica Corporation, a California corporation (the "Company") and Xxxxxx X.
Xxxxxxx (the "Recipient").
W I T N E S S E T H:
WHEREAS, the Company regards Recipient as a valuable contributor to the
Company, and has determined that it would be in the interest of the Company and
its shareholders to sell or grant the Stock provided for in this Agreement to
the Recipient as an incentive for continued service with the Company or its
Affiliates and increased achievements in the future by Recipient;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties to this Agreement hereby agree as follows:
1. Restricted Stock Purchase. Contemporaneously with the execution of
this Agreement, the Company will issue to Recipient 200,000 shares of Common
Stock of the Company (the "Stock") for an aggregate consideration of $20,000.00
("Purchase Price"). Payment for the Stock in the amount of the Purchase Price
shall be made to the Company upon execution of this Agreement by execution of a
five year promissory note and a security agreement in the forms attached hereto.
Recipient shall have all rights of a shareholder with respect to all
shares of Stock issued hereunder, including the right to vote, receive dividends
(including stock dividends), participate in stock splits or other
recapitalizations, and exchange such shares in a merger, consolidation or other
reorganization. The Company shall pay any applicable stock transfer taxes. The
term "Stock" also refers to the purchased Stock and all securities received in
replacement of the Stock, as a stock dividend or as a result of any stock split,
recapitalization, merger, reorganization, exchange or the like, and all new,
substituted or additional securities or other properties to which Recipient is
entitled by reason of Recipient's ownership of the Stock.
2. Restrictions. No Stock issued to the Recipient hereunder shall be
sold, transferred by gift, pledged, hypothecated, or otherwise transferred or
disposed of by the
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Recipient prior to the date when the Recipient shall become vested in such Stock
pursuant to Section 3 hereof, and such Stock shall constitute "Non-Vested Stock"
until such date. Any attempt to transfer Stock in violation of this Section 2
shall be null and void and shall be disregarded by the Company. In addition,
Non-Vested Stock shall be subject to a repurchase option in favor of the Company
(the "Repurchase Option").
The Repurchase Option shall be subject to the following terms and
conditions. In the event of the voluntary or involuntary termination of
employment of Recipient with the Company for any reason, with or without cause
(including death or disability), the Company shall, upon the date of such
termination, have an irrevocable, exclusive option for a period of ninety (90)
days from such date to repurchase the Non-Vested Stock from Recipient or any
person receiving the Non-Vested Stock by operation of law of other involuntary
transfer, at the original Purchase Price for the Non-Vested Stock.
The Repurchase Option shall be exercised by written notice by the
Company to Recipient or his executor and, at the Company's option, (i) by
delivery to the Recipient or his executor, with such notice, of a check in the
amount of the Purchase Price for the Non-Vested Stock being repurchased, or (ii)
in the event the Recipient is indebted to the Company, by cancellation by the
Company of an amount of such indebtedness equal to the Purchase Price for the
Non-Vested Stock being repurchased, or (iii) by a combination of (i) and (ii) so
that the combined payment and cancellation of indebtedness equals such Purchase
Price. Upon delivery by the Company of such notice and payment of the Purchase
Price in any of the ways described above, the Company shall become the legal and
beneficial owner of the Non-Vested Stock being repurchased and all rights and
interest therein or related thereto, and the Company shall have the right to
transfer to its own name the number of shares of Non-Vested Stock being
repurchased by the Company, without further action by Recipient.
For purposes of facilitating the enforcement of the provisions of this
Section 2, Recipient agrees, immediately upon receipt of the certificate(s) for
his Stock, to deliver such certificate(s), together with a stock power executed
in blank by Recipient and Recipient's spouse (if required for transfer) with
respect to each such stock certificate, to the Secretary or Assistant Secretary
of the Company, or their designee, to hold in escrow for so long as such stock
remains as Non-Vested Stock, with the authority to take all such actions and to
effectuate all such transfers and/or releases as may be necessary or appropriate
to accomplish the objectives of this Agreement in accordance with the terms
hereof. Recipient hereby acknowledges that the appointment of the Secretary or
Assistant Secretary of the Company (or their designee) as the escrow holder
hereunder with
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the stated authorities is a material inducement to the Company to make this
Agreement and that such appointment is coupled with an interest and is
accordingly irrevocable. Recipient agrees that such escrow holder shall not be
liable to any party hereto (or to any other party) for any actions or omissions
unless such escrow holder is grossly negligent relative thereto. The escrow
holder may rely upon any letter, notice or other document executed by any
signature purported to be genuine and may resign at any time.
3. Vesting. For purposes of this Agreement, the term "vest" shall mean
with respect to any share of the Stock that such share is no longer subject to
the restrictions on transfer set forth in Section 2 and that such share is
released from the Repurchase Option. If Recipient would become vested in any
fraction of a share of Stock on any date, such fractional share shall not vest
and shall remain Non-Vested Stock until the Recipient becomes vested in the
entire share. The Stock subject to this Agreement shall vest as follows:
(a) Commencing on October 1, 1994 and on the first day of each
succeeding month, for 47 months 4,166 of the shares covered by this
Agreement shall vest in Recipient, and on the first day of the next
succeeding months 4,151 shares shall vest in Recipient so that on September
1, 1998, the Stock shall be fully-vested.
Notwithstanding the foregoing, in the event that the Company shall be
acquired by way of (i) a sale, merger, exchange, reorganization or other form of
business combination that results in the shareholders of the Company immediately
prior to such transaction owning shares representing less than fifty percent
(50%) of the outstanding voting securities of the Company or other surviving
entity after such transaction; or (ii) the sale of all or substantially all of
the Company's assets, the Stock shall fully vest as of the closing of such
acquisition.
4. Withholding of Taxes. Recipient shall provide the Company with a copy
of any timely election made pursuant to Section 83(b) of the Internal Revenue
Code or similar provision of state law (collectively, an "83(b) Election"). If
Recipient makes a timely 83(b) Election, Recipient shall immediately pay Company
(or the Affiliate that employs Recipient) the amount necessary to satisfy any
applicable federal, state, and local income tax withholding requirements and
social security tax withholding requirements. If Recipient does not make a
timely 83(b) Election, Recipient shall, either at the time that the restrictions
lapse under this Agreement or at the time withholding is otherwise required by
any applicable law, pay Company (or the Affiliate that employs Recipient) the
amount necessary to satisfy any applicable federal, state, and local income tax
withholding requirements and social security tax withholding requirements.
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5. Acceleration of Time for Vesting. The Company may, in the sole
discretion of its Board of Directors, accelerate, in whole or in part, the time
for vesting of Stock as set forth in Section 3 above.
6. Additional Securities. Any securities received as the result of
ownership of Non-Vested Stock (hereinafter called "Additional Securities"),
including, but not by way of limitation, warrants, options and securities
received as a stock dividend or stock split, or as a result of a
recapitalization or reorganization, shall be retained by the Company in the same
manner and subject to the same conditions as the Non-Vested Stock with respect
to which they were issued. Recipient shall be entitled to direct the Company to
exercise any warrant or option received as Additional Securities upon supplying
the funds necessary to do so, in which event the securities so purchased shall
constitute Additional Securities, but the Recipient may not direct Company to
sell any such warrant or option. If Additional Securities consist of a
convertible security, Recipient may exercise any conversion right, and any
securities so acquired shall be deemed Additional Securities. Additional
Securities shall be subject to the provisions of Sections 2, 3 and 5 above in
the same manner as the Non-Vested Stock.
7. Investment Representations.
(a) This Agreement is made in reliance upon the Recipient's
representation to the Company, which by its acceptance hereof the Recipient
hereby confirms, that the shares of Stock to be received by him will be
acquired for investment for his own account and not with a view to the sale
or distribution of any part thereof within the meaning of the Securities
Act of 1933, as amended (the "1933 Act").
(b) The Recipient understands that the Stock is not registered under
the 1933 Act, on the basis that the sale provided for in this Agreement and
the issuance of securities hereunder is exempt from registration under the
1933 Act pursuant to Section 4(2) and/or Section 3(b) thereof, and that the
Company's reliance on such exemption is predicated on the Recipient's
representations set forth herein.
(c) The Recipient understands that the Stock may not be sold,
transferred, or otherwise disposed of without registration under the 1933
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Stock or an available exemption from
registration under the 1933 Act, the Stock must be held indefinitely. In
particular, the Recipient is aware that the Stock (and any Common Stock
issued on conversion thereof) may not be sold pursuant to Rule 144 or Rule
701 promulgated under the 1933 Act unless all of the conditions
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of the applicable Rules are met. Among the conditions for use of Rule 144
is the availability of current information to the public about the Company.
Such information is not now available, and the Company has no present plans
to make such information available. The Recipient represents that, in the
absence of an effective registration statement covering the Stock, it will
sell, transfer, or otherwise dispose of the Stock only in a manner
consistent with its representations set forth herein and then only in
accordance with the provisions of Section 7(d) hereof.
(d) The Recipient agrees that in no event will it make a transfer or
disposition of any of the Stock (other than pursuant to an effective
registration statement under the 1933 Act), unless and until (i) the
Recipient shall have notified the Company of the proposed disposition and
shall have furnished the Company with a statement of the circumstances
surrounding the disposition, and (ii) if requested by the Company, at the
expense of the Recipient or transferee, the Recipient shall have furnished
to the Company either (A) an opinion of counsel, reasonably satisfactory to
the Company, to the effect that such transfer may be made without
registration under the 1933 Act or (B) a "no action" letter from the
Securities and Exchange Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the
staff of the Securities and Exchange Commission that action be taken with
respect thereto. The Company will not require such a legal opinion or "no
action" letter (a) in any transaction in compliance with Rule 144, (b) in
any transaction in which the Recipient which is a partnership distributes
Stock after six months after the purchase of such securities hereunder
solely to partners or retired partners (including spouses and ancestors,
descendants and siblings of such partners or spouses who acquire Stock by
gift, will or intestate succession) thereof for no consideration, provided
that each transferee agrees in writing to be subject to the terms of this
Section 7(d), (c) in any transaction in which the Recipient transfers any
or all shares held by such Recipient by gift to such Recipient's immediate
family ("immediate family" used herein shall mean spouse, father, mother,
brother, sister, or lineal descendant), (d) in any transaction in
compliance with Rule 701(c), or (e) in any transfer of unlegended
securities.
8. Legends; Stop Transfer California Securities Law.
(a) All certificates for shares of the Stock shall bear the following
legends:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. 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 AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS
OF THAT CERTAIN RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE
COMPANY AND THE NAMED SHAREHOLDER. THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SUCH AGREEMENT,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
(b) The certificates for shares of the Stock shall also bear any
legend required by any applicable state securities law.
(c) THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS
AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF
THE STATE OF CALIFORNIA, AND THE ISSUANCE OF SUCH 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.
9. Grant of "Piggy-Back" Registration Rights.
(a) If the Company at any time within ten (10) years of the date
hereof proposes to register any of its securities under the Securities Act
(other than pursuant to a registration statement on Forms X-0, X-00 or S-15
or similar form) (the "Shares"), it shall each such time promptly give
written notice to Recipient of its intention to do so, and, upon the
written request of Recipient given within thirty (30) days after his
receipt of any such notice from the Company (which request shall specify
the number of such Stock he intends to have registered and sell as part of
such registration), the Company shall use its best efforts to register
under the Securities Act all Stock requested to be so registered by
Recipient so as to permit the sale or other disposition of such Stock in
such offering. If the
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proposed registration by the Company is in whole or in part an underwritten
public offering of Shares of the Company, any Stock of the Recipient to be
included in such underwriting shall be offered and sold on the same terms
and conditions as the shares of Common Stock, if any, otherwise being sold
through the underwriters under such registration; provided, however, that
if the managing underwriter determines and advises in writing that the
inclusion of all Stock of Recipient requested to be registered and all
other issued and outstanding shares of Common Stock to be included therein
by other shareholders in such underwritten public offering would interfere
with the successful marketing and sale of the Shares by the Company, then
(i) the number of shares of Common Stock to be included in the underwritten
public offering shall be reduced in such manner as the Company and such
managing underwriter shall determine in good faith to permit the success of
such underwritten public offering and as necessary for the Company to
comply with contractual registration rights granting priorities as to
inclusion in Company registrations, and (ii) those shares of Common Stock
excluded from the underwritten public offering shall be withheld from the
market by Recipient for a period, not to exceed one-hundred-eighty (180)
days, which the managing underwriter reasonably determines as necessary in
order to effect the underwritten public offering.
(b) All expenses incurred by the Company in complying with Paragraph
6(a), including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), fees and expenses of complying with securities
and blue sky laws, premium on any securities act insurance required by the
managing underwriter naming it as beneficiary, printing expenses and fees
and disbursements of counsel, reasonable fees and disbursements of not more
than one counsel for the seller or sellers requesting registration
thereunder, and the independent certified public accountants shall be paid
by the Company; provided, however, that all underwriting discounts and
selling commissions applicable to the Stock covered by such registration
shall be borne by Recipient.
10. Lock-Up Agreement. Recipient, if requested of Recipient and all
employees of the Company holding equal or larger numbers of shares of the
Company's Common Stock, by an underwriter of Common Stock or other securities of
the Company, shall agree not to sell or otherwise transfer or dispose of any
Common Stock of the Company held by the Recipient (except Common Stock included
in such registration) during the 180 day period following the effective date of
a registration statement of the Company filed under the 1933 Act, or such
shorter period of time as the underwriter shall require. Such agreement shall be
in
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writing in the form satisfactory to such underwriter. The Company may impose
stop-transfer instructions with respect to such Common Stock subject to the
foregoing restriction until the end of said period.
11. NO EMPLOYMENT RIGHTS. THIS AGREEMENT SHALL NOT CONFER UPON RECIPIENT
ANY RIGHT WITH RESPECT TO CONTINUATION OF HIS EMPLOYMENT WITH THE COMPANY OR ITS
SUBSIDIARIES, NOR SHALL IT INTERFERE IN ANY WAY WITH THE RIGHT OF RECIPIENT OR
THE COMPANY, OR ANY OF ITS SUBSIDIARIES, TO TERMINATE RECIPIENT'S EMPLOYMENT
WITH THE COMPANY AT ANY TIME OR CHANGE THE TERMS OF EMPLOYMENT OF RECIPIENT.
12. Distributions. Company shall disburse to Recipient all dividends,
interest and other distributions paid or made in cash or property (other than
Additional Securities) with respect to Non-Vested Stock and Additional
Securities, less any applicable federal or state withholding taxes.
13. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
14. Notice. Any notice or other paper required to be given or sent
pursuant to the terms of this Agreement shall be sufficiently given or served
hereunder to any party when transmitted by registered or certified mail, postage
prepaid, addressed to the party to be served as follows:
Company: Informatica Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Recipient: At Recipient's address as it appears under Recipient's
signature to this Agreement, or to such other address as
Recipient may specify in writing to the Company
Any party may designate another address for receipt of notices so long
as notice is given in accordance with this paragraph.
15. California Law. The interpretation, performance and enforcement of
this Agreement shall be governed by the laws of the State of California.
16. Section 83(b) Election. Recipient hereby represents that he
understands (a) the contents and requirements of the 83(b) Election; (b) the
application of Section 83(b) to the purchase of Shares by Recipient pursuant to
this Agreement;
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(c) the nature of the election to be made by Recipient under Section 83(b); and
(d) the effect and requirements of the 83(b) Election under relevant state and
local tax laws. Recipient further represents that he intends to file an election
pursuant to Section 83(b) with the Internal Revenue Service within thirty (30)
days following purchase of the Shares hereunder, and a copy of such election
with his federal tax return for the calendar year in which the date of this
Agreement falls. Recipient covenants to inform the Company of any change in
Recipient's state of residency.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Restricted Stock Purchase Agreement as of the date first above written.
INFORMATICA CORPORATION, a
California corporation
By: [SIG]
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Its: Chairman
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Xxxxxx X. Xxxxxxx
Address:
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