EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT")
is made and entered into as of September 22, 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 (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 hereto 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(b) of the Merger Agreement shall be
amended and restated in its entirety follows:
""CASH COMPONENT OF THE COMMON STOCK CONSIDERATION" shall
mean, for each share of Company Common Stock, Company Series A
Preferred Stock and Company Series B Preferred Stock, the quotient of
(i) the sum of (A) Twelve Million Dollars ($12,000,000), plus (B) the
dollar value of the Series B Dividend, plus (C) if Parent elects
pursuant to Section 1.6(h), the Cash Increment, divided by (ii) the
Total Outstanding Participating Shares."
1.2. Section 1.5(d) of the Merger Agreement shall be
amended and restated in its entirety follows:
""CASH COMPONENT OF THE SERIES B CONSIDERATION" shall mean,
for each share of Company Series B Preferred Stock, the difference of
(i) the product of (A) $5.250525 multiplied by (B) the quotient of (1)
Twenty Million Dollars ($20,000,000), divided by (2) the Preferred
Preference, less (ii) the Per Share Series B Dividend."
1.3. Section 1.5 of the Merger Agreement shall be amended
to include the following definition of "Per Share Series B Dividend" immediately
following the definition of "Option Exchange Ratio":
""PER SHARE SERIES B DIVIDEND" shall mean, the quotient of (i)
the Series B Dividend divided by (ii) the Total Outstanding Series B
Preferred Shares."
1.4 Section 5.24 of the Merger Agreement shall be amended
and restated in its entirety follows:
"Cash Dividend. Immediately prior to the Closing, the Company
shall declare and pay a cash dividend in an amount not to exceed $7.2
million to the holders of the Company Series B Preferred Stock out of
the Company's available cash balance (the "CASH DIVIDEND"); provided,
however, that at least five (5) days prior to the Closing, Parent shall
have reviewed and agreed with the calculation of such Cash Dividend;
provided further, however, that Company shall declare and pay such Cash
Dividend in compliance with applicable law, including applicable
reporting and withholding requirements. To the extent that the
Company's available cash balance immediately prior to the Closing is
less than $7.2 million, then Parent agrees that it will provide a
certain amount of cash to the holders of the Company Series B Preferred
Stock equal to the difference between (a) $7.2 million less (b) the
amount of available cash that is distributed to the holders of the
Company Series B Preferred Stock as part of the Cash Dividend
immediately prior to the Closing (the "GAP AMOUNT"). The Gap Amount
will be paid by Parent to the holders of the Company Series B Preferred
Stock within ninety (90) days following the Closing. Notwithstanding
anything to the contrary herein, Parent and the Company agree that any
and all Excess Transaction Expenses, as well as any and all costs
associated with the Company's compliance with Section 5.19 shall be
deducted from the Cash Dividend or Gap Amount otherwise payable to the
holders of the Company Series B Preferred Stock (such amount that is
actually paid or payable to the holders of the Company Series B
Preferred Stock pursuant to this Section 5.24, the "SERIES B
DIVIDEND")."
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 REPRENSENTATIVE
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title:
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