EXHIBIT 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT")
is made and entered into as of September 29, 2003 by and among Informatica
Corporation, a Delaware corporation ("PARENT"), Stopwatch Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("MERGER SUB"), Striva Corporation, a Delaware corporation (the "COMPANY"), and
Xxxx Xxxxxxxx (the "STOCKHOLDER REPRESENTATIVE" and together with Parent, Merger
Sub and the Company, the "PARTIES"). Capitalized terms used herein, unless
otherwise defined herein, shall have the meanings assigned to them in the Merger
Agreement (as defined below).
RECITALS
A. The Parties entered into an Agreement and Plan of Merger dated
as of September 11, 2003, as amended on September 22, 2003 (the "MERGER
AGREEMENT").
B. Pursuant to Section 8.3 of the Merger Agreement, the Merger
Agreement may be amended at any time only by execution of an instrument in
writing signed on behalf of each of the Parties.
C. The Parties desire to amend the Merger Agreement as set forth
herein.
AGREEMENT
In consideration of the foregoing premises, the mutual covenants and
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
1. Amendments. The Merger Agreement shall be amended as follows:
1.1. Section 1.5(p) of the Merger Agreement shall be
amended and restated in its entirety as follows:
""COMPANY STOCKHOLDERS" shall mean the persons who are the
holders of Company Common Stock, Company Series A Preferred Stock or
Company Series B Preferred Stock immediately prior to the Effective
Time (including persons who become holders of Company Common Stock upon
the conversion of Company Preferred Stock or the exercise of Company
Options or the Company Series A Preferred Warrant immediately prior to
the Effective Time); provided, however, that for the purposes of
determining the Escrow Amount and any Company Stockholder's Pro Rata
Portion of the Escrow Amount, Company Stockholders shall include each
holder of a Company Option and Company Series A Preferred Warrant to
the extent such Company Option or Company Series A Warrant has been
exercised."
1.2. Section 1.5(r) of the Merger Agreement shall be
amended and restated in its entirety as follows:
""ESCROW AMOUNT" shall mean an amount equal to sixteen and
two-thirds percent (16 2/3%) of the Merger Cash and sixteen and
two-thirds percent (16 2/3%) of the Merger Shares."
1.3. Section 1.5(z) of the Merger Agreement shall be
amended and restated in its entirety as follows:
""PRO RATA PORTION" shall mean with respect to each Company
Stockholder an amount equal to the quotient of (i) the sum of (A) the
product of the number of Merger Shares multiplied by the Trading Price,
plus (B) the amount of Merger Cash, in each case issuable pursuant to
Section 1.6 in respect of the shares of Company Capital Stock (or
options or warrants to purchase Company Capital Stock) owned by such
Company Stockholder as of the Effective Time divided by (ii) the sum of
(A) the product of the aggregate number of Merger Shares multiplied by
the Trading Price, plus (B) the aggregate amount of Merger Cash."
1.4. Section 1.8(a) of the Merger Agreement shall be
amended and restated in its entirety as follows:
"Parent to Deposit Escrow Amount. Promptly after the Effective
Time, Parent shall make available to the Exchange Agent for exchange in
accordance with this Article I, the Merger Consideration payable
pursuant to Section 1.6 hereof; provided, however, that on behalf of
the Company Stockholders entitled to receive the Merger Consideration,
Parent shall deposit into an escrow account the Escrow Amount, which,
in the case of holders of Company Options and the Company Series A
Preferred Warrant, shall be deposited into such escrow account when and
if such Company Options and the Company Series A Preferred Warrant are
exercised. The portion of the Escrow Amount contributed on behalf of
each Company Stockholder shall be determined with reference to the Pro
Rata Portion of each such Company Stockholder."
1.5. The second sentence of Section 7.2(a) of the Merger
Agreement shall be amended and restated in its entirety as follows:
"As soon as practicable after the Effective Time, Parent will
deposit the Escrow Amount, which, in the case of holders of Company
Options and the Company Series A Preferred Warrant, shall be deposited
when and if such Company Options and the Company Series A Preferred
Warrant are exercised, with an escrow agent acceptable to Parent and
the Stockholder Representative (the "ESCROW AGENT"), such deposit to
constitute an escrow fund (the "ESCROW FUND") to be governed by the
terms set forth herein and at Parent's cost and expense."
2. Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof; provided that issues involving the corporate governance of any of
the parties hereto shall be governed by their respective jurisdictions of
incorporation. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction of any state or federal court within the State of California, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, other than issues involving the corporate
governance of any of the parties hereto, agrees that process may be served upon
them in any manner authorized by the laws of the State of California for such
persons and waives and covenants not to assert or plead any objection that they
might otherwise have to such jurisdiction and such process.
3. Amendment Limited. Except as provided herein, each of the
provisions of the Merger Agreement shall remain in full force and effect
following the execution of this Amendment.
4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed
by their duly authorized respective officers as of the date first written above.
INFORMATICA CORPORATION
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Title: Executive Vice President, Chief
Financial Officer and Secretary
STOPWATCH ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Title: Chief Financial Officer
STRIVA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
STOCKHOLDER REPRESENTATIVE
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title:
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