Exhibit 10.12
AMENDMENT NO. 1 TO
SUBSCRIPTION AGREEMENT
This Amendment No. 1 dated as of November 17, 1997 (the "Amendment")
is entered into by and between Informix Corporation, a Delaware corporation
(together with its successors, "Informix" or the "Company"), and Xxxxxxxx
International Limited, a company organized under the laws of the Cayman Islands
(together with its successors, "Xxxxxxxx"), to amend the Subscription Agreement
(the "Subscription Agreement") dated August 12, 1997 by and between Informix and
Xxxxxxxx.
In exchange for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree to amend
the Subscription Agreement as follows, effective as of the Closing (as defined
in the Exchange Agreement (the "Exchange Agreement") dated as of the date hereof
by and between Informix and Xxxxxxxx):
A. The Certificate of Designation attached to the Subscription
Agreement as Annex A (the "Certificate of Designation") shall be replaced with
the form attached to the Exchange Agreement as Exhibit A (the "New Certificate
of Designation"). The Subscription Agreement is hereby amended such that all
references to the Certificate of Designation in the Subscription Agreement
shall, mutatis mutandis, refer to the New Certificate of Designation (as defined
in the Exchange Agreement).
B. Section 1.c. of the Subscription Agreement is hereby amended and
restated in its entirety as follows:
1.c. WARRANT. i. Informix grants Xxxxxxxx a warrant (the "Warrant",
and together with the Joint Option, an "Option") to purchase from Informix from
time to time up to an additional number of shares (the "Warrant Preferred
Shares", and together with the Joint Option Preferred Shares, the "Option
Preferred Shares") of Preferred Stock as determined below at a purchase price
(the "Warrant Purchase Price", and together with the Joint Option Purchase
Price, the "Option Purchase Price") equal to the liquidation preference of such
Warrant Preferred Shares. To exercise the Warrant, Xxxxxxxx shall have
delivered one or more written notice(s) in the form attached hereto as Annex G
(a "Warrant Notice") to Informix from time to time (a "Warrant Exercise Date")
prior to April 15, 1999 (the "Warrant Expiration Date"), provided that the
Warrant Expiration Date shall be extended by one trading day for each trading
day past November 21, 1997 on which Informix is not a Reporting Issuer (as
defined in Regulation S). If the Warrant is exercised, such sale shall take
place on a Warrant Closing Date (as defined below) upon satisfaction of the
terms and conditions described herein. The aggregate liquidation preference of
the Warrant Preferred Shares shall not exceed $35,000,000. Upon satisfaction
or, if applicable, waiver of the relevant conditions set forth in Sections 8 and
9 hereof, the closing of the sale of the Warrant Preferred Shares (the "Warrant
Closing", and together with the Joint Closing, an "Option Closing") shall take
place
initially via facsimile at Xxxxxxxx'x option on (i) the date that is three
trading days following delivery of the Warrant Notice or (ii) in the event
Xxxxxxxx has made a Registration Request under Section 7.a., the date that is 10
trading days excluding and following the date on which Informix notifies
Xxxxxxxx that a registration statement relating to all shares of Converted Stock
has been declared effective, or at such other date and time as Xxxxxxxx and
Informix shall mutually agree (such date and time being referred to herein as
the "Warrant Closing Date", and together with the Joint Closing Date, an "Option
Closing Date"). In the event Xxxxxxxx has made a Registration Request under
Section 7.a., and notwithstanding Informix's best efforts, such registration
statement has not been declared effective on or before September 15, 1999, the
Warrant shall expire and no longer be exercisable and any prior notice of
exercise of the Warrant shall be deemed to have been rescinded unless prior to
such date Xxxxxxxx exercises the Warrant by delivery of a further Warrant Notice
stating that Warrant Closing Date shall be the date that is three trading days
following delivery of such Warrant Notice. Nothing in this section limits
Informix's obligations under Section 7.
The Warrant represented hereby shall be issued on the Closing Date
pursuant to the Subscription Agreement dated August 12, 1997 between
Informix Corporation and Xxxxxxxx International Limited, as amended on
November 17, 1997. Neither the Warrant represented hereby nor the
securities issued upon exercise of the Warrant have been registered
under the Securities Act of 1933, as amended (the "Securities Act").
The Warrant represented hereby may not be exercised by or on behalf of
any U.S. Person (as defined in regulation S under the Securities Act
("Regulation S")) unless the securities issuable upon exercise of the
Warrant are registered under the Securities Act or an exemption from
registration is available. The Warrant represented hereby shall be
issued and sold in reliance on the exemption from registration
provided by Regulation S.
ii. The Company covenants and agrees with the registered holder of the
Warrant not to enter into a Transaction (as defined in the Certificate of
Designation), unless as a condition to the consummation of any such Transaction:
(1) such person shall expressly assume in writing all of the
obligations of the Company under the Subscription Agreement and
hereunder and deliver notice thereof to the registered holder
hereof; and
(2) upon consummation of such Transaction, the Warrant shall
automatically become exercisable for the preferred stock of the
acquiror (without regard to the form of acquisition
consideration) with similar terms and at an exercise price equal
to the Liquidation Preference of the Preferred Stock.
It shall be a condition to any Transaction that such warrant, in
accordance with the terms hereof, be delivered immediately prior to the
consummation of the Transaction.
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C. Section 5.b. of the Subscription Agreement is hereby amended and
restated in its entirety as follows:
5.b. For a period beginning on the date hereof and ending on the day
which is six months after the Warrant Expiration Date, or in the event no Option
is exercised, on May 2, 1999, Informix will not offer or sell any Preferred
Stock (other than the Option Preferred Shares), Common Stock or other equity
securities (or any securities convertible into or exchangeable for such
Preferred Stock, Common Stock, or other equity securities) in reliance upon
Regulation S and in any event will not take any action which would extend the
Restricted Period of any securities issued or issuable hereunder, PROVIDED,
HOWEVER, that the covenants and agreements contained in this Section 5.b. shall
not be required to be made in respect of any Option Closing Date or any
Conversion Date if the provisions of Section 7 are applicable and Informix is in
full compliance therewith and Xxxxxxxx is permitted to resell the Common Stock
thereunder.
D. Section 5.h. of the Subscription Agreement is hereby amended and
restated in its entirety as follows:
5.h. For a period beginning on the date any Option is exercised and
ending on the day which is three months after the date of exercise of an Option,
Informix will not offer or sell any of its or its subsidiaries' Preferred Stock,
Common Stock or other equity securities (or any securities convertible into or
exchangeable for such Preferred Stock, Common Stock or other equity securities)
in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated
thereunder (an "Equity Placement"), unless Informix shall have given Xxxxxxxx at
least eight business days prior written notice of its intention to engage in any
such Equity Placement or other capital raising transaction in advance of
soliciting or negotiating with any prospective investor and the parties hereto
shall have negotiated in good faith during such eight business days with respect
to any proposed Equity Placement, PROVIDED that during such eight business day
period, Informix shall not negotiate with any party other than Xxxxxxxx with
respect to any proposed Equity Placement. Except during the five trading days
excluding and immediately prior to and excluding and immediately following each
of the Closing Date and the Option Closing Date, the above restrictions shall
not apply to (i) the sale of 50% or more of the outstanding common stock of a
subsidiary of Informix, (ii) any strategic partnership or arrangement or joint
venture entered into by Informix or any of its subsidiaries, (iii) the merger or
consolidation of Informix with or into any other corporation or entity (other
than a merger or consolidation that in substance results in the issuance of
Informix's securities for cash), (iv) any registered, underwritten public
offering of Informix's equity securities, (v) any issuances of Common Stock
(including warrants and options exercisable for or convertible into Common
Stock) in connection with bank or equipment financing, (vi) any issuances of
Common Stock (including warrants and options exercisable for or convertible into
Common Stock) in connection with any employee, consultant or director
compensation plan or arrangement or (vii) any transaction intended to be made in
reliance upon Rule 144A of the
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Securities Act so long as such transaction involves more than 10 purchasers.
Solely to the extent necessary to avoid conflict with this paragraph, Xxxxxxxx
consents to the transaction (the "Series B Transaction") by and between Informix
and the proposed purchasers of the Series B preferred stock substantially on the
terms and in the form attached hereto as Appendix 1, which is expected to be
consummated on or about November 18, 1997.
E. Section 6A. of the Subscription Agreement is hereby amended and
restated in its entirety as follows:
6A. LEGEND. The term "Restricted Period," with respect to any
security, shall mean the Restricted Period then applicable to such security
pursuant to Regulation S (or any applicable successor thereto), provided that,
the parties agree that absent an intervening change in the applicable law, (i)
the Restricted Period with respect to the Initial Preferred Shares and the
Converted Stock issuable with respect thereto and the Warrant and the Warrant
Preferred Shares issuable with respect thereto will expire on the 40th calendar
day after and including the Closing Date, and (ii) the Restricted Period with
respect to the Joint Preferred Shares and the Converted Stock issuable with
respect thereto will expire on the 40th calendar day after and including the
Joint Closing Date. Informix may place the following legend on the certificate
representing the Initial Preferred Shares and the Joint Preferred Shares (and
any Warrant Preferred Shares issued during the Restricted Period applicable to
the Warrant):
The securities represented by this certificate were issued on [___
__], 199[7] (the "Closing Date") pursuant to the Subscription
Agreement dated August 12, 1997, as amended on November 17, 1997,
between Informix Corporation ("Informix") and Xxxxxxxx International
Limited. The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), and have been sold in reliance on the exemption
from registration provided by Regulation S under the Securities Act
("Regulation S"). Prior to the expiration of a 40-day restricted
period beginning on the Closing Date (the "Restricted Period"), the
securities represented by this certificate may not be offered or sold,
directly or indirectly, within the United States (as defined in
Regulation S under the Securities Act), to a U.S. Person (as defined
in Regulation S under the Securities Act) or for the account or
benefit of a U.S. Person. After the Restricted Period, such
securities may be resold in the United States or to a U.S. Person only
if they are registered under the Securities Act or an exemption from
registration is available.
At any time after the expiration of the Restricted Period with respect
to the Initial Preferred Shares, the Warrant or the Joint Preferred Shares,
certificates for any Warrant Preferred Shares issued or for any Converted Stock
issued or in respect of transferred shares of Common Stock will not be legended
unless required by Regulation S or other applicable law.
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F. Section 7.a. of the Subscription Agreement is hereby amended and
restated in its entirety as follows:
7. REGISTRATION PROVISIONS.
a. If, at any time after the Closing Date, there is any
determination of application of, or change in, any law or regulation relating to
the issuance and resale of the Initial Preferred Shares, the Option Preferred
Shares or the Converted Stock, including any interpretation or revision by the
SEC or action by the United States government relating to Regulation S or any
successor or revision to Regulation S, and such determination, change,
interpretation, successor provision or revision imposes a Restricted Period
applicable to any security issued or issuable hereunder that is greater than
that in effect on the date of this Agreement, or would materially impair the
ability of Xxxxxxxx or any of its affiliates to offer, sell or otherwise dispose
of any such security pursuant to Regulation S as contemplated hereby, or
requires any such offer, sale or other disposition to be registered under the
Securities Act, then upon the written request of Xxxxxxxx (a "Registration
Request") made in good faith after consultation with counsel, Informix shall, as
promptly as practicable and in any event no later than (i) 30 calendar days
thereafter if Informix is eligible to use Form S-3 or (ii) 45 calendar days
thereafter if Informix is not eligible to use Form S-3 and at its own expense,
file a registration statement on an appropriate form of the SEC (the
"Registration Statement") (which Registration Statement shall be filed on Form
S-3, if available) under the Securities Act covering the sale or resale of all
shares of Converted Stock (each a "Covered Security") and shall use its best
efforts to cause such Registration Statement to be declared effective as
promptly as practicable following its filing; provided that Xxxxxxxx shall have
provided such information and cooperation in connection therewith as Informix
may reasonably request. Informix shall amend the Registration Statement from
time to time upon the request of Xxxxxxxx if the maximum number of shares of
Common Stock issuable upon conversion of the Initial Preferred Shares and any
Option Preferred Shares that have been issued or may be issuable to Xxxxxxxx is
greater than the number of shares of Common Stock registered pursuant to such
Registration Statement; provided that Xxxxxxxx shall have provided such
information and cooperation in connection therewith as Informix may reasonably
request. Upon the effectiveness of such Registration Statement (A) Informix
shall issue such securities to Xxxxxxxx in accordance with the terms hereof and
(B) the provisions of Sections 3(1), (m) and (o) and (p), 4(e), (f), (g), (h),
(i) and (j), 5(a), (b), (c) and (d), 6(a) (collectively, the "Specified
Provisions"), 8(a) and (b) (to the extent applicable to the Specified
Provisions), 9(b), (c) and (d) (to the extent applicable to the Specified
Provisions) shall thereafter be of no force and effect with respect to the
issuance of such Covered Securities.
G. MISCELLANEOUS
a. This Amendment may be executed in one or more counterparts
and it is not necessary that signatures of all parties appear on the same
counterpart, but such counterparts together shall constitute but one and the
same agreement.
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b. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
c. Except as expressly provided herein, each provision of the
Subscription Agreement remains in full force and effect without alteration. The
Subscription Agreement (including the terms and conditions of the New
Certificate of Designation relating to the Initial Preferred Shares and the
Option Preferred Shares), as amended by this Amendment, constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, between the parties hereto with respect to the subject matter of this
Amendment and is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder or under the terms of the term sheets
between such parties.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Amendment, all as of the day and year first above written.
INFORMIX CORPORATION
By: /s/Xxxxxx Xxxxxxxxx, Xx.
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx, Xx.
Title: Chairman, President and
Chief Executive Officer
XXXXXXXX INTERNATIONAL LIMITED
By: /s/Xxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman
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