SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20459
Form 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period ended July 2, 1995
or
[ ] TRANSITION REPORT PURSUANT SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period to .
Commission File Number 0-15325
INFORMIX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-3011736
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4100 Bohannon Drive, Menlo Park, CA 94025
(415) 926-6300
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(Address of Principal Executive Offices, including zip code:
registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securi-
ties Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes _X_ No ___
At July 28, 1995 133,856,939 shares of Common Stock were outstanding.
Total number of pages 18.
PART I. FINANCIAL INFORMATION
<TABLE>
<CAPTION>
INDEX
Item Page
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(1) Condensed Consolidated Financial Statements (Unaudited):
Condensed Consolidated Statements of Income for the three
and six month periods ended July 2, 1995 and July 3, 1994 3
Condensed Consolidated Balance Sheets as of July 2, 1995 and
December 31, 1994 4
Condensed Consolidated Statements of Cash Flows for the six month
periods ended July 2, 1995 and July 3, 1994 5
Notes to Condensed Consolidated Financial Statements 6
(2) Management's Discussion and Analysis of Financial Condition and
Results of Operations 7
</TABLE>
<TABLE>
<CAPTION>
INFORMIX CORPORATION and Subsidiaries
Condensed Consolidated Statements of Income
(in thousands, except per share data)
(Unaudited)
Three months ended Six months ended
July 2, July 3, July 2, July 3,
1995 1994 1995 1994
--------- --------- --------- ---------
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Net revenues:
Licenses $ 123,179 $ 82,987 $ 233,548 $ 157,766
Services 40,428 22,699 77,844 44,020
--------- --------- --------- ---------
163,607 105,686 311,392 201,786
Costs and expenses:
Cost of software distribution 8,155 5,462 16,017 10,454
Cost of services 21,272 10,875 39,141 20,608
Sales and marketing 69,615 46,272 134,154 86,220
Research and development 18,977 15,085 36,511 27,990
General and administrative 11,978 7,182 23,035 16,708
--------- --------- --------- ---------
129,997 84,876 248,858 161,980
--------- --------- --------- ---------
Operating income 33,610 20,810 62,534 39,806
Interest income 1,783 884 3,337 1,689
Interest expense (169) (104) (219) (169)
Other (expense) / income, net 171 (887) 296 (1,061)
--------- --------- --------- ---------
Income before income taxes 35,395 20,703 65,948 40,265
Income taxes 13,273 7,453 24,730 14,495
--------- --------- --------- ---------
Net income $ 22,122 $ 13,250 $ 41,218 $ 25,770
========= ========= ========= =========
Net income per common and
common equivalent share* $ 0.16 $ 0.10 $ 0.30 $ 0.19
Weighted average number of
common and common equivalent
shares outstanding**: 138,228 133,484 137,589 134,292
** Share and per-share amounts applicable to the prior periods have been
restated to reflect the two-for-one stock split (effected in the form
of a stock dividend) which was effective June 26, 1995.
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<TABLE>
<CAPTION>
INFORMIX CORPORATION and Subsidiaries
Condensed Consolidated Balance Sheets
(in thousands)
July 02, Dec 31,
1995 1994
--------- ---------
(Unaudited) (Note)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 137,170 $ 131,882
Short-term investments 55,555 59,644
Accounts receivable, net 143,316 131,548
Deferred taxes 9,978 9,978
Other current assets 19,346 14,964
--------- ---------
Total current assets 365,365 348,016
Property and equipment, net 59,295 44,121
Software costs 30,252 24,681
Deferred taxes 7,651 7,651
Long-term investments 8,708 4,477
Intangible assets 49,789 6,089
Other assets 10,945 9,375
--------- ---------
Total assets $ 532,005 $ 444,410
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 25,081 $ 18,737
Accrued expenses 26,257 27,784
Accrued employee compensation 31,692 33,777
Income taxes payable 30,141 17,725
Deferred taxes 1,612 1,612
Deferred revenue 56,300 48,580
Other liabilities 14,433 5,337
--------- ---------
Total current liabilities 185,516 153,552
Deferred taxes 14,692 14,692
Other liabilities 1,774 522
Stockholders' equity:
Common stock 1,336 655
Additional paid-in capital 150,868 139,897
Retained earnings 177,243 136,025
Unrealized gain on available-for-sale
securities, net of tax 363 665
Foreign currency translation adjustment 213 (1,598)
--------- ---------
Total stockholders' equity 330,023 275,644
--------- ---------
Total liabilities and
stockholders' equity $ 532,005 $ 444,410
========= =========
</TABLE>
(Note) Derived from audited financial statements.
See Notes to Condensed Consolidated Financial Statements.
<TABLE>
<CAPTION>
INFORMIX CORPORATION and Subsidiaries
Condensed Consolidated Statements of Cash Flows
(in thousands)
(Unaudited)
Six months ended
July 2, July 3,
1995 1994
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 41,218 $ 25,770
Adjustments to reconcile net income to
cash and cash equivalents provided by
operating activities:
Depreciation and amortization 13,035 7,046
Amortization of capitalized software 5,506 3,441
Deferred tax expense -- 450
Provisions for losses on accounts receivable 2,973 790
Foreign currency transaction gain (6,804) (2,061)
Changes in operating assets and liabilities:
Accounts receivable (13,660) 8,275
Other current assets (2,811) 1,786
Accounts payable and accrued expenses 16,255 (473)
Deferred revenue 5,031 2,136
--------- ---------
Net cash and cash equivalents provided by
operating activities 60,743 47,160
INVESTING ACTIVITIES
Purchases of held-to-maturity securities (71,244) (32,018)
Purchases of available-for-sale securities (189) (62,500)
Maturities of held-to-maturity securities 44,601 33,961
Sales of available-for-sale securities 26,690 62,383
Purchase of property and equipment (21,947) (12,649)
Additions to software costs (10,828) (6,474)
Business combinations, net of cash acquired (35,758) --
Other (2,039) (2,510)
--------- ---------
Net cash and cash equivalents used in
investing activities (70,714) (19,807)
FINANCING ACTIVITIES
Proceeds from issuance of stock 11,652 469
Principal payments on capital leases, net (427) (589)
Acquisition of common stock -- (22,138)
Proceeds from reissuance of treasury stock -- 3,429
--------- ---------
Net cash and cash equivalents provided (used in)
financing activities 11,225 (18,829)
--------- ---------
Effect of exchange rate changes on cash
and cash equivalents 4,034 1,327
--------- ---------
Increase in cash and cash equivalents 5,288 9,851
Cash and cash equivalents at beginning of period 131,882 67,329
--------- ---------
Cash and cash equivalents at end of period $ 137,170 $ 77,180
========= =========
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
INFORMIX CORPORATION and Subsidiaries
Notes to Condensed Consolidated Financial Statements
July 2, 1995
(Unaudited)
NOTE A - PRESENTATION OF INTERIM FINANCIAL STATEMENTS
All significant adjustments, in the opinion of management, which are
normal, recurring in nature and necessary for a fair presentation of
the financial position and results of the operations of the Company
and its subsidiaries, have been consistently recorded. The operating
results for the interim periods presented are not necessarily
indicative of expected performance for the entire year.
NOTE B - NET INCOME PER COMMON SHARE
Net income per common share is based on the weighted average number of
common and dilutive common equivalent shares outstanding during each
period. All stock options are considered common stock equivalents and
are included in the weighted average computations when the effect is
dilutive.
<TABLE>
<CAPTION>
NOTE C - STOCKHOLDERS' Equity
<S> <C>
Reconciliation of outstanding shares:
Shares outstanding at April 2, 1995 132,064,910
Shares issued upon exercises of stock options 1,477,470
Shares sold under terms of the Employee Stock Purchase Plan 97,717
-----------
Shares outstanding at July 2, 1995 133,640,097
===========
</TABLE>
On May 18, 1995, the Company's stockholders at the 1995 annual meeting
approved an increase to the number of authorized shares of common
stock from 150,000,000 shares to 350,000,000 shares. On May 18, 1995,
the Board of Directors declared a two-for-one stock split to be
effected in the form of a stock dividend with a record date of June
9, 1995 and an effective date of June 26, 1995.
All share and per-share amounts applicable to the prior periods have
been restated to reflect the two-for-one stock split, effected in the
form of a stock dividend, which was effective June 26, 1995.
NOTE D - BUSINESS COMBINATIONS
In January 1995, the Company acquired a 90 percent interest in the
database division of ASCII Corporation, a distributor of its products
in Japan. The Company will acquire the remaining 10 percent in
January 1996. This acquisition has been recorded as a purchase. The
purchase price of this business was approximately $46.0 million, of
which $34.8 million has been allocated to intangible assets acquired
which are being amortized over a weighted average life of seven years.
The operating results of this business have not been material in
relation to those of the Company and are included in the Company's
consolidated results of operations from the date of acquisition.
In April 1995, the Company acquired an 80 percent interest in the
database division of Daou Corporation, a distributor of its products
in Korea. The Company will acquire the remaining 20 percent by
January 1997. This acquisition has been recorded as a purchase. The
purchase price of this business was approximately $4.6 million, of
which $4.0 million has been allocated to intangible assets acquired
which are being amortized over a weighted average life of seven years.
The operating results of this business have not been material in
relation to those of the Company and are included in the Company's
consolidated results of operations from the date of acquisition.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table sets forth operating results as a percentage of
net revenues for the three and six month periods ended July 2, 1995
and July 3, 1994, respectively.
<TABLE>
<CAPTION>
PERCENT OF NET REVENUES
THREE MONTHS ENDED SIX MONTHS ENDED
JULY 2, JULY 3, JULY 2, JULY 3,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
NET REVENUES:
Licenses 75% 79% 75% 78%
Services 25% 21% 25% 22%
Total net revenues 100% 100% 100% 100%
COSTS AND EXPENSES:
Cost of software distribution 5% 5% 5% 5%
Cost of services 13% 10% 13% 10%
Sales and marketing 42% 44% 43% 43%
Research and development 12% 14% 12% 14%
General and administrative 7% 7% 7% 8%
Total operating expenses 79% 80% 80% 80%
OPERATING INCOME 21% 20% 20% 20%
INTEREST INCOME 1% 1% 1% 1%
INTEREST EXPENSE 0% 0% 0% 0%
OTHER EXPENSE, NET (0%) (1%) (0%) (1%)
INCOME BEFORE INCOME TAXES 22% 20% 21% 20%
INCOME TAXES 8% 7% 8% 7%
NET INCOME 14% 13% 13% 13%
</TABLE>
The following table sets forth the percent change in the operating
results for the three and six month periods ended July 2, 1995
compared to the respective three and six month periods ended July 3,
1994.
<TABLE>
<CAPTION>
PERIOD-TO-PERIOD PERCENT
INCREASE (DECREASE)
THREE MONTHS ENDED SIX MONTHS ENDED
JULY 2, 1995 VS JULY 2, 1995 VS
JULY 3, 1994 JULY 3, 1994
<S> <C> <C>
NET REVENUES:
Licenses 48% 48%
Services 78% 77%
Total net revenues 55% 54%
COSTS AND EXPENSES:
Cost of software distribution 49% 53%
Cost of services 96% 90%
Sales and marketing 50% 56%
Research and development 26% 30%
General and administrative 67% 38%
Total operating expenses 53% 54%
OPERATING INCOME 62% 57%
INTEREST INCOME 102% 98%
INTEREST EXPENSE 64% 30%
OTHER EXPENSE, NET (119%) (128%)
INCOME BEFORE INCOME TAXES 71% 64%
INCOME TAXES 78% 71%
NET INCOME 67% 60%
</TABLE>
The Company's operating income in the second quarter and the first six
months of 1995 was 21 percent and 20 percent of net revenues,
respectively, compared to 20 percent in the same periods in 1994.
Although the Company's operating margins have exceeded or equaled 20
percent over the last several quarters, the Company's expenses are
relatively fixed in the near term and unexpected variances in planned
revenues, which are difficult to forecast, can result in variations in
operating margins and cost ratios. The Company's quarterly operating
margins have generally followed a seasonal pattern, with second half
revenues and operating margins generally being higher than those of
the preceding first half; however, there is no assurance that this
seasonal pattern will be repeated.
The Company derives revenues principally from licensing its software
and providing technical product support or updates to customers.
License revenues may involve the shipment of product by the Company
or the granting of a license to manufacture products. The Company's
products are sold directly to end user customers or through resellers:
original equipment manufacturers (OEM's), system integrators,
distributors, or application vendors. The Company's revenues have
been increasingly derived from sales contracts directly with end-users
and less from the distributor or OEM sales channels. These end-user
sales contracts can be relatively large in size and are difficult to
forecast both in timing and dollar value. In addition, these revenue
contracts have relatively lower associated software distribution and
selling costs. From time to time the Company has recognized
substantial net revenue from these large software license agreements.
These transactions, which are difficult to predict, have caused
fluctuations in net revenues and net income because of the relatively
high gross margin on such revenues. The Company expects that these
sorts of transactions and the resulting fluctuations will continue.
Throughout the remainder of 1995, the Company will continue to invest
more in customer services, marketing and research and development, and
make personnel additions to the Company's sales force worldwide.
These additional expenses may adversely affect the Company's operating
margin in 1995 if there are no offsetting increases in revenues or
reductions in other operating expenses.
As the number of software products and software patents in the
industry increases, the Company believes that software developers may
become increasingly subject to infringement claims. There can be no
assurance that a third party will not assert that its patents or other
proprietary rights are violated by products offered by the Company.
Any such claims, with or without merit, can be time-consuming and
expensive to defend and could have an adverse effect on the Company's
business, results of operations, financial position and cash flows.
The Company's stock price may be subject to significant volatility,
particularly on a quarterly basis. Any shortfall in revenue or
earnings from levels expected by securities analysts or others could
have an immediate and significant adverse effect on the trading price
of the Company's common stock in any given period. Additionally, as
is common in the industry, a disproportionate amount of the Company's
license revenue is derived from transactions that close in the last
few weeks of a quarter that make quarterly revenues difficult to
forecast. The Company may not learn of, or be able to confirm,
revenue or earnings shortfalls until the end of each quarter, which
could result in an even more immediate and adverse effect on the
trading price of the Company's common stock. Finally, the Company
participates in a highly dynamic industry, which often results in
significant volatility of the Company's common stock price.
NET REVENUES
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, Change JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
License fees $ 123.2 $ 83.0 48% $ 233.6 $ 157.8 48%
Percentage of net revenues 75% 79% 75% 78%
Services $ 40.4 $ 22.7 78% $ 77.8 $ 44.0 77%
Percentage of net revenues 25% 21% 25% 22%
Net revenues $ 163.6 $ 105.7 55% $ 311.4 $ 201.8 54%
</TABLE>
The increase in service revenue, which consists of customer support,
training and consulting, was primarily attributable to the continued
growth of the installed customer base, the renewal of maintenance
contracts and increased consulting revenue. The Company continues to
emphasize support services as a source of revenue.
The revenue growth in the second quarter and the first six months of
1995 primarily reflects continued strong worldwide acceptance for the
Company's new and existing technology and products. Although the
Company expects revenues to grow in the remainder of 1995, there can
be no assurance that such growth will be achieved or that growth rates
in the future will be comparable to those in the first six months of
1995. The Company's revenues, along with those of the relational
database management system (RDBMS) industry as a whole, have shown
substantial growth over the last several years. The industry has
benefited from trends to downsize from large proprietary computer
systems and market acceptance of UNIX and other open operating
environments.
The Company has focused on the UNIX, open operating system market
since 1980 and has broadened its open environments by releasing a
Windows and Windows NT version of an Informix database server in 1994.
The Company has also developed and released connectivity products to
allow access to other relational databases, both proprietary and open,
and access to this data through various protocols such as IBM's DRDA
and X/Open's XA. The industry movement to new open operating systems
like Windows NT and access through low-end, desktop machines may cause
downward pressure on prices of database and related products. If such
downward pressure on prices were to occur, margins would be adversely
affected.
The license revenue growth in the second quarter and the first six
months of 1995 reflects continued strong demand for the Company's
products, particularly for the Company's new generation of database
servers, INFORMIX-OnLine Dynamic Server(TM). The Company has also
started to see revenue growth in the tools area with the introduction
of INFORMIX-NewEra(TM) a second-generation client/server application
development tool which became available in the second half of 1994.
In July 1995, the Company introduced INFORMIX- OnLine Extended
Parallel Server 8.0, a new high-performance, scalable database server
based on the Company's Dynamic Scalable Architecture(TM) (DSA) which
is scheduled to be available on a limited basis on three platforms in
the third quarter of 1995, and INFORMIX-NewEra(TM) 2.0 which is
scheduled for availability on the Windows platform in August of 1995.
The Company's ability to sustain growth depends in part on the timely
release of successful new and updated products, and the success of new
and updated products from its competitors. The Company has experienced
product delays in the past and may have delays in the future.
A key factor in determining the success of the Company will continue
to be the ability of the Company's products to interoperate and
perform well with existing and future leading, industry-standard
application software products intended to be used in connection with
relational database management systems. Failure to meet existing or
future interoperability and performance requirements of certain
independent vendors marketing such applications in a timely manner
could adversely affect the market for the Company's products.
Over half of the Company's net revenues are derived from its
international operations. In Europe and Asia/Pacific, most revenues
and expenses are now denominated in local currencies. The U.S. dollar
weakened in the first six months of 1995 against the major European
and Asia/Pacific currencies, which resulted in higher revenue and
expenses recorded when translated into U.S. dollars and compared with
the prior year periods. Through 1994, most revenues from Asia/Pacific,
Canada, and Latin America were denominated in U.S. dollars.
Accordingly, the translation of the revenues for these regions was
less impacted by fluctuations in foreign exchange rates. The Company
has increased its direct sales presence in Asia/Pacific by opening
offices and acquiring its primary software distributors in Malaysia in
1994, and Japan and Korea in early 1995. This increased the
proportion of direct sales denominated in local currency in these
regions. The Company has also increased its direct presence in Latin
America, although a significant percentage of the revenue is still
denominated in U.S. dollars. In the future, the Company expects
currency fluctuations in Mexico, and to a lesser extent, other Latin
American countries to continue. The Company's operating and pricing
strategies take into account changes in exchange rates over time;
however, the Company's results of operations may be significantly
affected in the short term by fluctuations in foreign currency
exchange rates.
The Company has a hedging program in place to minimize foreign
exchange gains or losses, where possible, from recorded foreign
denominated transactions resulting from fluctuations in exchange
rates. This program involves the use of forward foreign exchange
contracts in the primary European and Asian currencies. The Company
has limited unhedged transaction exposures in certain secondary
currencies in Latin America and Eastern Europe because there are
limited forward currency exchange markets in these currencies. The
Company does not attempt to hedge the translation to U.S. dollars of
foreign denominated revenues and expenses not yet incurred.
The Company's distribution markets are organized into three general
markets: North America; Europe, the Middle East, and Africa; and
Intercontinental, consisting of Latin America and the Asia-Pacific
region. In the second quarter of 1995, these organizations
contributed 38 percent, 40 percent, and 22 percent of the Company's
net revenues compared to 42 percent, 41 percent, and 17 percent for
the same period in 1994.
COST OF SOFTWARE DISTRIBUTION
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, CHANGE JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Manufactured cost of
software distribution $ 5.8 $ 3.8 53% $ 10.5 $ 7.0 50%
Percentage of license revenue 5% 5% 5% 5%
Amortization of capitalized
software $ 2.4 $ 1.7 42% $ 5.5 $ 3.5 60%
Percentage of license revenue 2% 2% 2% 2%
Cost of software distribution $ 8.2 $ 5.5 49% $ 16.0 $ 10.5 53%
Percentage of license revenue 7% 7% 7% 7%
</TABLE>
Software distribution costs consist primarily of: 1) manufacturing and
related costs such as media, documentation, product assembly and
purchasing costs, freight and third party royalties; and 2)
amortization of previously capitalized software development costs.
The increase in amortization of capitalized software in absolute
dollars in the second quarter and the first six months of 1995
compared to the same periods in 1994 was due to the release of several
products in the latter half of 1994. The Company expects that
amortization of capitalized software in absolute dollars will increase
in the future as new products are released.
Manufactured cost of software distribution in the second quarter and
the first six months of 1995, as a percentage of license revenues,
remained flat compared to the same periods in 1994. The cost of
software distribution as a percentage of license revenue may vary
depending upon whether the product is reproduced by the Company or by
its customers.
COST OF SERVICES
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, CHANGE JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Cost of Services $ 21.3 $ 10.9 96% $ 39.1 $ 20.6 90%
Percentage of service revenue 53% 48% 50% 47%
</TABLE>
Cost of services consists primarily of maintenance, consulting and
training expenses. The increase in cost of services in the second
quarter and the first six months of 1995 in absolute dollars and as a
percentage of net revenues compared to the corresponding prior year
periods is primarily due to the Company's increased investments in
consulting and support services. In the future, the Company expects
that cost of services as a percentage of net revenues will approximate
the rate in the first six months of 1995.
SALES AND MARKETING EXPENSES
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, CHANGE JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Sales and marketing expenses $ 69.6 $ 46.3 50% $ 134.2 $ 86.2 56%
Percentage of net revenue 42% 44% 43% 43%
</TABLE>
The increase in sales and marketing expenses in the second quarter and
the first six months of 1995 in absolute dollars compared to the same
periods in 1994 was a result of increased sales headcount worldwide
and increased marketing programs associated with new product
introductions.
With the continuing expansion throughout 1995 of worldwide operations,
as well as increased sales and marketing expenditures in 1995 aimed at
positioning the Company and its new and existing products in the
marketplace, the Company expects that sales and marketing expenses for
the remainder of 1995, as a percentage of net revenues, will be
similar to those of the first six months of 1995.
RESEARCH AND DEVELOPMENT EXPENSES
The Company accounts for its product development costs in accordance
with Statement of Financial Accounting Standards No. 86. This
statement requires that once technological feasibility of a developing
product has been established, all subsequent costs incurred in
developing that product to a commercially acceptable level be
capitalized and amortized ratably over the revenue life of the
product. The Company's research and development expenses exclude
capitalized software costs of $4.1 million and $3.8 million in the
second quarters of 1995 and 1994, respectively, and $8.0 million and
$6.0 million in the first six months of 1995 and 1994, respectively,
and exclude amortization costs of previously capitalized software. The
following table summarizes research and product development costs for
the periods ended July 2, 1995 and July 3, 1994:
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, CHANGE JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Incurred product development
costs $ 23.1 $ 18.9 22% $ 44.5 $ 34.0 31%
Expenditures capitalized 4.1 3.8 8% 8.0 6.0 33%
Research and development
expenses $ 19.0 $ 15.1 26% $ 36.5 $ 28.0 30%
Expenditures capitalized as
a % of incurred 18% 20% n/a 18% 18% n/a
Amortization 2.4 1.7 42% 5.5 3.4 60%
</TABLE>
The increase in research and development expenditures in absolute
dollars in the second quarter and the first six months of 1995
compared to the corresponding periods in 1994 was attributed to an
increase in staff working on new products and product extensions.
The higher capitalization in absolute dollars of product development
expenditures in the second quarter and the first six months of 1995
compared to the same periods in 1994 resulted from an increase in the
work involved in projects reaching technological feasibility as they
neared their release dates. The Company expects the proportion of work
on capitalized projects to remain relatively stable throughout the
remainder of 1995.
Major new programs currently under development include the expansion
of the DSA family of servers and connectivity products and subsequent
versions of the Company's graphical, object-oriented tool, INFORMIX-
NewEra. The Company believes that research and development
expenditures are essential to maintaining its competitive position in
its primary markets and expects the expenditure levels to increase in
absolute dollars.
GENERAL AND ADMINISTRATIVE EXPENSES
General and administrative expenses for the second quarter and first
six months of 1995 remained relatively flat as a percentage of net
revenues compared to the corresponding periods in 1994. The Company
expects general and administrative expenses as a percentage of net
revenues for the remainder of 1995 to remain relatively stable with
the first six months of 1995.
<TABLE>
<CAPTION>
(DOLLARS IN MILLIONS)
QUARTER ENDED SIX MONTHS ENDED
JULY 2, JULY 3, CHANGE JULY 2, JULY 3, CHANGE
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
General and administrative
expenses $ 12.0 $ 7.2 67% $ 23.0 $ 16.7 38%
Percentage of net revenue 7% 7% 7% 8%
</TABLE>
PROVISION FOR INCOME TAXES
The Company's effective tax rate increased to 37.5 percent of pretax
income in the second quarter and the first six months of 1995 from
36.0 percent in the same periods in 1994. The higher effective tax
rate for the second quarter and the first six months of 1995 was
primarily due to the expiration of the U.S. federal research and
development tax credit in 1995.
The Company anticipates its fiscal 1995 effective tax rate to be
approximately 37.5 percent; however, this rate could change based on a
change in the geographic mix of the Company's earnings and the amount
of permanent reinvestment offshore of a portion of the 1995 earnings
of the Company's lower-taxed Irish operations and the potential
reinstatement of the U.S. federal research and development tax credit.
IMPACT OF INFLATION
The effect of inflation on the Company's financial position has not
been significant.
LIQUIDITY AND CAPITAL RESOURCES
<TABLE>
<CAPTION>
(IN MILLIONS OF DOLLARS)
SIX MONTHS ENDED
JULY 2, JULY 3,
1995 1994
<S> <C> <C>
Cash, cash equivalents, and investments $ 201.4 $ 151.6
Working capital 179.8 152.9
Cash provided by operations 60.7 47.2
Cash used in investment activities, excluding
investments of excess cash 70.6 21.6
Cash provided by (used in) financing activities 11.2 (18.8)
</TABLE>
Cash generated by operations provided sufficient resources to fund the
Company's headcount growth and capital asset needs in all periods
presented.
The increase in net cash and cash equivalents provided by operations
in the first six months of 1995 compared with the same period in 1994
was primarily attributable to higher net income before depreciation
and amortization charges.
Accounts receivable increased by $11.8 million in the second quarter
of 1995 as compared to the fourth quarter of 1994, principally as a
result of higher sales, partially offset by strong collections and the
use of third party financing programs. Days sales outstanding remained
flat at approximately 79 days, the same as the fourth quarter of 1994.
Commencing in late 1993, the Company instituted programs to have third-
party financial institutions provide financing for extended credit
terms instead of such terms being provided by the Company. The days
sales outstanding ratio is dependent on many factors, including the
mix of contract-based revenue with significant OEMs and large
corporate and government end-users versus revenue recognized on
shipments to application vendors and distributors and the success of
the Company's financing programs. Although a large portion of the
Company's revenues are derived from resellers, the Company's revenues
since 1993, particularly in Europe, have shifted substantially from
distributors to direct end-users. These end-user sales contracts
frequently bear extended payment terms which result in an increase in
days sales outstanding ratios unless the contracts are financed. The
shift in distributor channels is likely to continue as products and
markets mature. The Company is using a variety of activities to
reduce the days sales outstanding ratio. In the future, the Company
expects this ratio to vary within the range which prevailed in the
last several quarters; however, there is no assurance that it will do
so.
Excluding investments of excess cash, net cash and cash equivalents
used in investing activities increased in the first six months of 1995
compared with the same period in 1994. In the first six months of
1995 and 1994, the Company acquired $21.9 million and $12.6 million,
respectively, of capital equipment consisting primarily of computer
equipment, computer software and office equipment. The increase of
capital equipment purchases in the first six months of 1995 resulted
from the Company's growing employee headcount, the replacement of
obsolete equipment and investment in new technology. In the future,
the Company anticipates the actual level of capital spending will be
dependent on a variety of factors, including the Company's business
requirements and general economic conditions.
The Company's investments in software costs were previously discussed
under "Results of Operations."
In January 1995, the Company acquired a 90 percent interest in the
database division of ASCII Corporation, a distributor of its products
in Japan. The Company will acquire the remaining 10 percent interest
in January 1996. The Company accounted for the acquisition as a
purchase. The purchase price of ASCII's database division was
approximately $46.0 million, of which approximately $34.8 million has
been allocated to intangible assets acquired.
In April 1995, the Company acquired an 80 percent interest in the
database division of Daou Corporation, a distributor of its products
in Korea. The Company will acquire the remaining 20 percent by
January 1997. The acquisition was recorded as a purchase. The
purchase price of this business was approximately $4.6 million, of
which approximately $4.0 million has been allocated to intangible
assets acquired.
Net cash and cash equivalents provided by financing activities in the
first six months of 1995 consisted primarily of proceeds from the sale
of the Company's common stock to employees, partially offset by
payments on capital leases.
Net cash and cash equivalents used in financing activities in the
first six months of 1994 included repurchases of the Company's common
stock and payments on capital leases, partially offset by proceeds
from the sale of the Company's common stock to employees.
In 1993 and 1994, the Board of Directors authorized the repurchase of
up to 8 million (adjusted to reflect two-for-one stock splits,
effected in the form of stock dividends, which were effective June 14,
1993 and June 26, 1995) shares of the Company's common stock in the
open market. Through the second quarter of 1995, the Company had
repurchased 3,580,000 shares with an aggregate cost of approximately
$32.1 million on the open market.
The Company expects current balances of cash, cash equivalents, and
short-term investments will be sufficient to fund anticipated levels
of operations at least through the second quarter of 1996 and may be
used for investments and acquisitions to supplement internal revenue
growth and for other corporate purposes.
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES OR RIGHTS OF HOLDERS THEREOF.
On May 18, 1995, the Company's stockholders at the 1995 annual meeting
approved an increase to the number of authorized shares of common
stock from 150,000,000 shares to 350,000,000 shares. On May 18, 1995,
the Board of Directors declared a two-for-one stock split to be
effected in the form of a stock dividend with a record date of June
9, 1995 and an effective date of June 26, 1995.
In July 1995, the Board of Directors amended the Company's Amended and
Restated Preferred Shares Rights Agreement ("Rights Agreement") to
increase the exercise price of the rights issued thereunder to $154.00
per share. This adjustment was required in connection with the
substantially higher trading prices of the Company's common stock
since the date of the last amendment to the Rights Agreement in May
1992. The amendment also extends the term of the Rights Agreement to
July 25, 2005.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS
The Company held its 1995 Annual Meeting of Stockholders on May 18,
1995. The following matters were approved by the stockholders by the
votes (prior to the June 26, 1995 stock split) indicated below:
<TABLE>
<CAPTION>
MATTER VOTES FOR VOTES WITHHELD
<S> <C> <C>
Election of two Class II
directors to serve for a
three-year term
James L. Koch 57,570,816 161,458
Thomas A. McDonnell 57,572,404 159,870
</TABLE>
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN NO VOTE
<S> <C> <C> <C> <C>
Approval of an amendment to the
Company's Restated Certificate
of Incorporation to increase the
authorized number of shares of the
Company's $.01 par value Common
Stock by 200,000,000 shares 39,481,761 17,104,290 359,973 786,250
Ratification of the appointment
of Ernst & Young LLP as the
Company's independent
auditors for the fiscal year
ending December 31, 1995 57,634,898 20,203 77,173 0
</TABLE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A) Exhibits
Exhibit 3.1 - Restated Certificate of Incorporation, as amended.
Exhibit 3.2 - By-Laws, as amended.
Exhibit 4 - Amended and Restated Preferred Share Rights Agreement
(Incorporated by reference to exhibits to Form 8-A
Registration Statement filed on August 11, 1995).
Exhibit 11.1 - Statement Regarding Computation of Earnings Per Share.
Exhibit 27 - Financial Data Schedule.
B) Reports on Form 8-K. No reports on Form 8-K were filed during the
three months ended July 2, 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
INFORMIX CORPORATION
Dated: August 15, 1995
/s/ HOWARD H. GRAHAM
Howard H. Graham
Senior Vice President, Finance
and Chief Financial Officer
Dated: August 15, 1995
/s/ RICHARD C. BLASS
Richard C. Blass
Vice President, Corporate Controller
and Chief Accounting Officer
CERTIFICATE OF AMENDMENT
OF THE RESTATED CERTIFICATE OF
INCORPORATION OF
INFORMIX CORPORATION
Howard H. Graham and David H. Stanley certify that:
1. They are the Senior Vice President, Finance and Chief
Financial Officer and Vice President, Legal and Corporate
Services, General Counsel and Secretary, respectively, of
Informix Corporation, a Delaware corporation (the "Corporation").
2. The first paragraph of Article Four of the Restated
Certificate of the Corporation is amended to read as follows:
Section 1. The total number of shares of
common stock which the Corporation shall have the
authority to issue is Three Hundred-Fifty Million
(350,000,000), with a par value of One Cent ($.01)
per share (hereinafter referred to as "Common
Stock"), and the total number of shares of
preferred stock which the Corporation shall have
the authority to issue is Five Million (5,000,000),
with a par value of One Cent ($.01) per share
(hereinafter referred to as "Preferred Stock").
3. The foregoing amendment of the Corporation's Restated
Certificate of Incorporation has been duly approved by the
Board of Directors.
4. The foregoing amendment of the Corporation's Restated
Certificate of Incorporation has been duly approved by the
required vote of stockholders in accordance with Section 242
of the Delaware Corporations Code. The total number of
outstanding shares of Common Stock of the Corporation is
66,474,734. No shares of Preferred Stock are outstanding.
The number of shares voting in favor of the amendment equaled
or exceeded the vote required. The percentage vote required was
more than 50% of the outstanding Common Stock.
We further declare under penalty or perjury under the laws of the
State of Delaware that the matters set forth in the foregoing
certificate are true and correct of our own knowledge.
Executed at Menlo Park, California, this 19th day of May, 1995.
/S/Howard H. Graham
Howard H. Graham
/S/David H. Stanley
David H. Stanley
CERTIFICATE OF AMENDMENT
OF THE RESTATED CERTIFICATE OF
INCORPORATION OF
INFORMIX CORPORATION
Howard H. Graham and David H. Stanley certify that:
1. They are the Senior Vice President, Finance and Chief
Financial Officer and Vice President, Legal, General
Counsel and Secretary, respectively, of Informix Corporation,
a Delaware corporation.
2. Section 1 of Article Four of the Restated Certificate of
this Corporation as now reads:
"Section 1. The total number of shares of
common stock which the Corporation shall have the
authority to issue is Forty-Five Million (45,000,000),
with a par value of One Cent ($.01) per share (here-
inafter referred to as "Common Stock"), and the
total number of shares of preferred stock which the
Corporation shall have the authority to issue is
Five Million (5,000,000), with a par value of One
Cent ($.01) per share (hereinafter referred to as
"Preferred Stock")."
is amended to read as follows:
"Section 2. The total number of shares of
common stock which the Corporation shall have the
authority to issue is One Hundred-Fifty Million
(150,000,000), with a par value of One Cent ($.01)
per share (hereinafter referred to as "Common
Stock"), and the total number of shares of preferred
stock which the Corporation shall have the authority
to issue is Five Million (5,000,000), with a par
value of One Cent ($.01) per share (hereinafter
referred to as "Preferred Stock")."
3. The foregoing Certificate of Amendment of the Restated
Certificate of Incorporation has been duly approved by
the Board of Directors.
4. The foregoing Certificate of Amendment of the Restated
Certificate of Incorporation has been duly approved by
the required vote of stockholders in accordance with
Section 242 of the Delaware Corporations Code. The total
number of outstanding shares of Common Stock of the
Corporation is 32,143,218. No shares of Preferred
Stock are outstanding. The number of shares voting in
favor of the amendment equaled or exceeded the vote
required. The percentage vote required was more than 50%
of the outstanding Common Stock.
We further declare under penalty or perjury under the
laws of the State of Delaware that the matters set forth
in the foregoing certificate are true and correct of our
own knowledge.
Executed at Menlo Park, California, this 26th day of
May, 1993.
/S/Howard H. Graham
Howard H. Graham
/S/David H. Stanley
David H. Stanley
CERTIFICATE OF AMENDMENT
OF THE RESTATED CERTIFICATE OF
INCORPORATION OF
INFORMIX CORPORATION
Howard H. Graham and David H. Stanley certify that:
1. They are the Senior Vice President, Finance and Chief
Financial Officer and Vice President, Legal, General
Counsel and Secretary, respectively, of Informix Corpora-
tion, a Delaware corporation.
2. Section 1 of Article Four of the Restated Certificate of
this Corporation as now reads:
"Section 1. The total number of shares of
common stock which the Corporation shall have the
authority to issue is Twenty Million (20,000,000),
with a par value of One Cent ($.01) per share (here-
inafter referred to as "Common Stock"), and the
total number of shares of preferred stock which the
Corporation shall have the authority to issue is
Five Million (5,000,000), with a par value of One
Cent ($.01) per share (hereinafter referred to as
"Preferred Stock")."
is amended to read as follows:
"Section 1. The total number of shares of
common stock which the Corporation shall have the
authority to issue is Forty-Five Million
(45,000,000), with a par value of One Cent ($.01)
per share (hereinafter referred to as "Common
Stock"), and the total number of shares of preferred
stock which the Corporation shall have the authority
to issue is Five Million (5,000,000), with a par
value of One Cent ($.01) per share (hereinafter
referred to as "Preferred Stock")."
3. The foregoing Certificate of Amendment of the Restated
Certificate of Incorporation has been duly approved by
the Board of Directors.
4. The foregoing Certificate of Amendment of the Restated
Certificate of Incorporation has been duly approved by
the required vote of stockholders in accordance with
Section 242 of the Delaware Corporations Code. The total
number of outstanding shares of Common Stock of the
Corporation is 14,393,049. No shares of Preferred
Stock are outstanding. The number of shares voting in
favor of the amendment equaled or exceeded the vote
required. The percentage vote required was more than 50%
of the outstanding Common Stock.
We further declare under penalty of perjury under the
laws of the State of Delaware that the matters set forth
in the foregoing certificate are true and correct of our
own knowledge.
Executed at Menlo Park, California, this 22nd day of
June, 1992.
/S/Howard H. Graham
Howard H. Graham
/S/David H. Stanley
David H. Stanley
CERTIFICATE OF CORRECTION
CERTIFICATE OF CORRECTION FILED
TO CORRECT AN INACCURACY IN THE
RESTATED CERTIFICATE OF INCORPORATION OF
INFORMIX CORPORATION
FILED IN THE OFFICE OF THE SECRETARY OF
STATE OF DELAWARE ON FEBRUARY 8, 1988 AND
RECORDED IN THE OFFICE OF THE RECORDER
OF DEEDS FOR KENT COUNTY, DELAWARE
ON FEBRUARY 29, 1988
Informix Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Informix Corporation.
2. A Restated Certificate of Incorporation was filed with
the Secretary of State of Delaware on February 8, 1988 and
recorded in the office of the Recorder of Deeds of Kent County on
February 29, 1988 (the "Restated Certificate"), and the Restated
Certificate requires correction as permitted by subsection (f) of
Section 103 of the General Corporation Law of the State of Delaware.
3. The inaccuracy in the Restated Certificate to be
corrected is Section 1 of Article Four which reads as follows:
"Section 1. The total number of shares of stock
which the Corporation shall have authority to issue is
Twenty-One Million (21,000,000) shares, of which Twenty
Million (20,000,000) shares shall be common stock, of the
par value of One Cent ($.01) per share (hereinafter referred
to as "Common Stock", and One Million (1,000,000) shares
shall be preferred stock, with a par value of One Cent
($.01) per share (hereinafter referred to as "Preferred Stock")."
4. Section 1. of Article Four of the Restated Certificate
is corrected to read as follows:
"Section 1. The total number of shares of common
stock which the Corporation shall have authority to issue is
Twenty Million (20,000,000), with a par value of One Cent
($.01) per share (hereinafter referred to as "Common
Stock"), and the total number of shares of preferred stock
which the Corporation shall have authority to issue is Five
Million (5,000,000), with a par value of One Cent ($.01) per
share (hereinafter referred to as "Preferred Stock")."
IN WITNESS WHEREOF, the corporation has caused this Certificate
to be executed by David H. Stanley, its Vice President and
Assistant Secretary, effective this 28th day of March, 1990.
By: /S/David H. Stanley
David H. Stanley,
Vice President and
Assistant Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
INFORMIX CORPORATION
A Delaware Corporation
INFORMIX Corporation, a corporation organized and
existing under the General Corporation Law of the State of
Delaware, certifies that:
FIRST: The name of the corporation is INFORMIX
Corporation. The Corporation was originally incorporated
under the name of RDS Technology, Inc., and the original
Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on July 3, 1986.
SECOND: At a meeting of the Board of Directors of
INFORMIX Corporation, resolutions were duly adopted setting
forth the proposed amendment and restatement of the
corporation's Certificate of Incorporation, declaring such
amendment and restatement to be advisable, and calling for a
vote of the corporation's stockholders to approve such
amendment and restatement. The resolution setting forth the
proposed amendment and restatement was as follows:
RESOLVED, that the corporation's Certificate of
Incorporation be amended and restated so that the
Certificate reads in its entirety as follows:
ARTICLE ONE
The name of the Corporation is: INFORMIX Corporation
ARTICLE TWO
The address of its registered office in the State of
Delaware is 410 South State Street, in the City of Dover,
County of Kent. The name of its registered agent at such
address is Incorporating Services, Ltd.
ARTICLE THREE
The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be
organized under the General Corporation Law of Delaware.
ARTICLE FOUR
Section 1. The total number of shares of stock which
the Corporation shall have authority to issue is Twenty-one
Million (21,000,000) shares, of which Twenty Million
(20,000,000) shares shall be common stock, of the par value
of One Cent ($.01) per share (hereinafter referred to as
"Common Stock"), and One Million (1,000,000) shares shall be
preferred stock, with a par value of One Cent ($.01) per
share (hereinafter referred to as "Preferred Stock").
Section 2. The designations and the powers, preferences
and rights, and the qualifications, limitations or
restrictions of the shares of each class of stock are as
follows:
A. PREFERRED STOCK
The Preferred Stock may be issued from time to time
by the Board of Directors as shares of one or more series.
Subject to the provisions hereof and the limitations
prescribed by law, the Board of Directors is expressly
authorized, prior to issuance of, by adopting resolutions
providing for the issuance, or providing for a change in
the number of, shares of any particular series and, if and to
the extent from time to time required by law, by filing a
certificate pursuant to the General Corporation Law of
Delaware (or other law hereafter in effect relating to the
same or substantially similar subject matter), to establish
or change the number of shares to be included in each such
series and to fix the voting powers and the designations and
relative powers, preferences and rights and the
qualifications and limitations or restrictions thereof
relating to the shares of each such series. The authority of
the Board of Directors with respect to each series shall
include, but not be limited to, determination of the
following:
(a) the distinctive serial designation of such
series and the number of shares constituting such series,
which number may be increased or decreased (but not below the
number of then outstanding shares thereof) from time to time
by like action of the Board of Directors;
(b) the rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock of
such series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes, or series of the same or other
classes of stock, whether such dividends shall be cumulative
or non-cumulative, and, if so, from which date or dates;
(c) whether the shares of such series shall be
redeemable and, if so, the terms and conditions of such
redemption, including the date or dates upon and after which
such shares shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to
retire shares of such series, including the price or prices
which the Corporation shall be obligated to pay therefor, and
the terms of the sinking fund or redemption or purchase
account, if any, to be provided for the shares of such series;
(e) whether shares of such series shall be
convertible into, or exchangeable for, shares of stock of any
other class or classes and, if so, the terms and conditions
of such conversion or exchange, including the price or prices
or the rate or rates of conversion or exchange and the terms
of adjustment, if any;
(f) whether the shares of such series shall have
voting rights, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights (which
voting rights may, without limiting the generality of the
foregoing, include the right, voting as a series or by itself
or together with other series of Preferred Stock as a class,
to elect one or more Directors of the Corporation or to have
one or more votes per share on any or all matters as to which
a stockholder vote is required or permitted);
(g) the rights of the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, or in the event of a merger,
distribution or sale of assets; and
(h) any other relative rights, powers,
preferences, qualifications, limitations or restrictions
thereof relating to such series.
The number of authorized shares of Preferred Stock may
be increased or decreased by the affirmative vote of the
holders of two-thirds (2/3) or more of the Total Voting Power
of the then outstanding shares of Voting Stock, considered
for this purpose as one class and without the separate vote
of holders of Preferred Stock as a class (it being understood
that for purposes of this Article Four, each share of the
Voting Stock shall have the number of votes granted to it
pursuant to this Article Four). For the purposes of this
Article Four, Section 2A: (I) the term "Total Voting Power"
shall mean the aggregate of all votes of all outstanding
shares of Voting Stock; and (ii) the term "Voting Stock"
shall mean the shares of all classes of capital stock of the
Corporation entitled to vote on increasing or decreasing the
number of authorized shares of Preferred Stock.
The relative powers, preferences and rights of each
series of Preferred Stock in relation to the powers,
preferences and rights of each other series of Preferred
Stock shall, in each case, be as fixed from time to time by
the Board of Directors in the resolution or resolutions
adopted pursuant to authority granted in Section 2A of this
Article Four, and the consent, by class or series vote or
otherwise, of the holders of such of the series vote of Preferred
Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any
other series of Preferred Stock whether or not the powers,
preferences and rights of such other series shall be fixed by
the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or
any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series
of Preferred Stock adopted pursuant to Section 2A of this
Article Four that the consent of the holders of a majority
(or such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of
Preferred Stock.
Subject to the provisions of the foregoing paragraph of
this Section 2A, shares of any series of Preferred Stock may
be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
B. COMMON STOCK
After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with
the provisions of Section 2A of this Article Four), if any,
shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to
the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
Section 2A of this Article Four), and subject further to any
other conditions which may be fixed in accordance with the
provisions of Section 2A of this Article Four, then and not
otherwise the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time
by the Board of Directors.
After distribution in full of the preferential amount,
if any (fixed in accordance with the provisions of Section 2A
of this Article Four), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to receive all of the remaining
assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock
held by them respectively.
Except as may otherwise be required by law, each holder
of Common Stock shall have one vote in respect of each share
of Common Stock held by him on all matters voted upon by the
stockholders.
Shares of Common Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be
fixed by the Board of Directors.
Section 3. No holder of any shares of stock of the
Corporation of any class shall be entitled as such, as a
matter of right, to subscribe for or purchase any shares of
stock of the Corporation of any class, whether now or
hereafter authorized or whether issued for cash, property or
services or as a dividend or otherwise, or to subscribe for
or purchase any obligations, bonds, notes, debentures, other
securities or stock convertible into shares of stock of the
Corporation of any class or carrying or evidencing any right
to purchase shares of stock of any class.
ARTICLE FIVE
Section 1. The property, business and affairs of the
Corporation shall be managed and controlled by the Board of
Directors. The total number of Directors of the Corporation
shall be fixed by, or in the manner provided in, the Bylaws.
Section 2. A majority of the whole Board of Directors
shall constitute a quorum for the transaction of business,
and, except as otherwise provided in this Certificate of
Incorporation or the Bylaws, the vote of a majority of the
Directors present at a meeting at which a quorum is then
present shall be the act of the Board of Directors. As used
in this Certificate of Incorporation, the term "whole Board
of Directors" is hereby exclusively defined to mean the total
number of Directors which the Corporation would have if there
were no vacancies.
SECTION 3. The members of the Board of Directors, other
than those who may be elected by the holders of any Preferred
Stock of series thereof, shall be divided into three classes
(to be designated as Class I, Class II and Class III), with
the terms of office of one class expiring each year. Subject
to any shorter or longer term which may be applicable to a
director elected by any series of Preferred Stock voting
separately as a class, at each annual meeting of stockholders
the successors to the class of Directors whose term shall
then expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting and until
their respective successors shall be duly elected and
qualified or until their respective earlier resignation or
removal.
Section 4. Except for directorships created pursuant to
Article Four hereof relating to the rights of holders of
Preferred Stock, or any series thereof, and except for
vacancies in such directorships, any vacancies in the Board
of Directors for any reason, and any newly created
directorships resulting from any increase in the number of
Directors, may be filled only by the Board of Directors,
acting by a majority of the Directors then in office,
although less than a quorum, and any Directors so chosen
shall hold office until the next election of the class for
which such Directors shall have been chosen and until their
successors shall be elected and qualified. No decrease in
the number of Directors shall shorten the term of any
incumbent Director.
Section 5. Notwithstanding any other provisions of this
Certificate of Incorporation or the Bylaws of the Corporation
(and notwithstanding the fact that some lesser percentage may
be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), any director or the entire Board
of Directors of the Corporation, except for directors elected
by one or more series of Preferred Stock, voting separately
as a class, may be removed at any time, but only for cause
and only by the affirmative vote of the holders of at least a
majority of the Total Voting Power of the then outstanding
shares of Voting Stock, considered for this purpose as one
class (it being understood that for purposes of this Article
Five, Section 5, each share of the Voting Stock shall have
the number of votes granted to it pursuant to Article Four of
this Certificate of Incorporation). For the purposes of this
Article Five, Section 5: (i) the term "Total Voting Power"
shall mean the aggregate of all votes of all outstanding
shares of Voting Stock; and (ii) the term "Voting Stock"
shall mean the shares of all classes of capital stock of the
Corporation entitled to vote on removal of any director or
the entire Board of Directors in the manner provided in this
Article Five, Section 5 (except that if the next succeeding
sentence is operative, then the outstanding shares of
Preferred Stock shall not be considered "Voting Stock" for
purposes of this Article Five, Section). Notwithstanding
the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to
elect one or more Directors of the Corporation, the
provisions of this Article Five shall not apply with respect
to the Director or Directors elected by such holders of
Preferred Stock.
Section 6. There shall be no qualifications for
election as Directors of the Corporation, except that no
person shall be eligible to stand for election as a Director
if he has been convicted of a felony by a court of competent
jurisdiction where such conviction is no longer subject to
direct appeal.
Section 7. Elections of Directors need not be by ballot
unless the Bylaws of the Corporation shall so provide.
Section 8. Subject to the rights of holders of
Preferred Stock, nominations for the election of Directors
may be made by the Board of Directors or a proxy committee
appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally.
However, any stockholder entitled to vote in the election of
Directors generally may nominate one or more persons for
election as Directors at a meeting only if written notice of
such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
Corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders, one hundred
twenty (120) days in advance of the date of such meeting (as
set forth in the Corporation's Bylaws); and (ii) with respect
to an election to be held at a special meeting of
stockholders for the election of Directors, the close of
business on the seventh day following the date on which
notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the
person or persons to be nominated; (b) a representation that
the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) the name and
address, as they appear on the Corporation's books, of such
stockholder; (d) the class and number of shares of the
Corporation which are beneficially owned (as such term is
defined in Section 4, Paragraph D of Article Seven of this
Certificate of Incorporation) by such nominating stockholder
and each nominee proposed by such stockholder; (e) a
description of all arrangements or understandings between the
nominating stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the
stockholder; (f) such other information regarding each
nominee proposed by such stockholder as would have been
required to be included in a proxy statement filed pursuant
to Regulation 14A (17 CFR 240.14a-1 et seq.) as then in
effect under the Securities Exchange Act of 1934, as amended,
had the nominee been nominated, or intended to be nominated,
by the Board of Directors; and (g) the consent of each
nominee to serve as a Director of the Corporation if so
elected. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 9. Except as may be otherwise specifically
provided in this Article Five or in any resolution of the
Board of Directors creating any series of Preferred Stock
adopted pursuant to Paragraph A of Section 2 of Article Four,
the term of office and voting power of each Director of the
Corporation shall not be greater than nor less than that of
any other Director or class of Directors of the Corporation.
ARTICLE SIX
Section 1. The original Bylaws of the Corporation shall
be adopted in any manner provided by law.
Section 2. In furtherance, and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized to make, adopt, alter, amend or repeal
the Bylaws of the Corporation.
Section 3. Notwithstanding any other provisions in this
Certificate of Incorporation or the Bylaws of the
Corporation, and notwithstanding the fact that some lesser
percentage may be specified by law, the stockholders of the
Corporation shall have the power to make, adopt, alter, amend
or repeal the Bylaws of the Corporation only upon the
affirmative vote of two-thirds (2/3) or more of the Total
Voting Power of the then outstanding shares of Voting Stock,
considered for this purpose as one class (it being understood
that for purposes of this Article Six, each share of the
Voting Stock shall have the number of votes granted to it
pursuant to Article Four of this Certificate of
Incorporation). For purposes of this Article Six: (i) the
term "Total Voting Power" shall mean the aggregate of all
votes of all outstanding shares of Voting Stock; and (ii) the
term "Voting Stock" shall mean the shares of all classes of
capital stock of the Corporation entitled to vote on making,
adopting, altering, amending or repealing the Bylaws of the
Corporation.
ARTICLE SEVEN
Section 1. The provisions of this Article Seven shall
be applicable to certain Business Combinations (as
hereinafter defined) and shall supersede any other provision
of this Certificate of Incorporation or the Bylaws of the
Corporation or of law inconsistent therewith.
Section 2. In addition to any affirmative vote required
by law or this Certificate of Incorporation (including,
without limitation, any requirement that Business
Combinations be approved by the holders of a specified
percentage of Preferred Stock voting separately as a class)
and except as otherwise expressly provided in Section 3 of
this Article Seven, any Business Combination (as hereinafter
defined) shall require the affirmative vote of the holders of
at least two-thirds (2/3) or more of the Total Voting Power
of the then outstanding shares of Voting Stock considered for
this purpose as one class (it being understood that for
purposes of this Article Seven, each share of the Voting
Stock shall have the number of votes granted to it pursuant
to Article Four of this Certificate of Incorporation). Such
affirmative vote shall be required notwithstanding the fact
that no vote may be required by law, or that a lesser
percentage may be specified by law or in any agreement with
any national securities exchange or otherwise.
Section 3. The provisions of Section 2 of this Article
Seven shall not be applicable to any particular Business
Combination, and such Business Combination shall require only
such affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if the
Business Combination (as hereinafter defined) shall have been
approved by a majority of the Disinterested Directors (as
hereinafter defined).
Section 4. For the purposes of this Article Seven:
A. A "Business Combination" shall mean:
(i) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with
(a) any Interested Stockholder (as hereinafter defined) or
(b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined)
of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or
a series of transactions) to or with any Interested
Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $1,000,000 or more; or
(iii) the issuance or transfer by the
Corporation or any Subsidiary (in one transaction or a series
of transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate Fair Market Value of $1,000,000 or more; or
(iv) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation proposed by
or on behalf of any Interested Stockholder or any Affiliate
of any Interested Stockholder; or
(v) any reclassification of securities
(including any reverse stock split), or recapitalization of
the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving any Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share
of the outstanding shares of any class of Equity Security (as
hereinafter defined) of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder.
B. A "person" shall mean any individual, firm,
corporation or other entity.
C. "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary) who or which,
as of the record date for the determination of stockholders
entitled to notice of and to vote on any Business Combination
in question, or immediately prior to the consummation of any
such transaction:
(i) is the beneficial owner, directly or
indirectly, of 5% or more of the Total Voting Power of the
outstanding Voting Stock, considered for this purpose as one
class; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to either
the record date for the determination of stockholders
entitled to notice of and to vote on any Business Combination
in question or the consummation of any such transaction, was
the beneficial owner, directly or indirectly, of 5% or more
of the Total Voting Power of the then outstanding Voting
Stock, considered for this purpose as one class; or
(iii) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time within
the two year period immediately prior to either the record
date for the determination of stockholders entitled to notice
of and to vote on any Business Combination in question or the
consummation of any such transaction, beneficially owned by
any Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
D. A person shall be a "beneficial owner" of any
Voting Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined), directly or indirectly,
through any contract, arrangement, understanding or
relationship, owns or has or shares the power to vote or to
direct the voting of, or the power to dispose or to direct
the disposition of, shares of such stock, or owns, has or
shares the right to receive or the power to direct the
receipt of dividends from or the proceeds from the sale of
such stock; or
(ii) with respect to which such person or any of
its Affiliates or Associates has the right to acquire,
directly or indirectly, through any contract, arrangement,
understanding or relationship, owns or has or shares the
power to vote or to direct the voting of, or the power to
dispose or to direct the disposition of, shares of such
stock, or owns, has or shares the right to receive or the
power to direct the receipt of dividends from or the proceeds
from the sale of such stock (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; or
(iii) which are beneficially owned (as defined in
(i) or (ii) above), directly or indirectly, by any other
person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of
any shares of Voting Stock.
E. For the purpose of determining whether a person is
an Interested Stockholder pursuant to paragraph C of this
Section 4, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through
application of paragraph D of this Section 4 but shall not
include any other shares of Voting Stock which may be
issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
F. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on January 1, 1988.
G. "Subsidiary" means any corporation of which a
majority of any class of Equity Security is owned, directly
or indirectly, by the Corporation; provided, however, that
for the purposes of the definition of Interested Stockholder
set forth in paragraph C of this Section 4, the term
"Subsidiary" shall mean only a corporation of which a
majority of each class of Equity Security is owned, directly
or indirectly, by the Corporation.
H. "Disinterested Director" means any member of the
Board of Directors who is not an Interested Stockholder or an
Affiliate of an Interested Stockholder and was a member of
the Board of Directors prior to the time that the Interested
Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director who is not an
Interested Stockholder or an Affiliate of an Interested
Stockholder and is recommended to succeed a Disinterested
Director by a majority of the Disinterested Directors then on
the Board of Directors; provided, however, that the directors
of the Corporation elected at the meeting of the
Corporation's stockholders at which directors of the
Corporation were first elected as members of a classified
Board of Directors, and any successor of any such person who
is recommended by a majority of such persons or any such
successors, are hereby deemed to be "Disinterested Directors."
I. "Fair Market Value" means: (i) in the case of
stock, the highest closing sale price during the 30-day
period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock
Exchange--Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers,
Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value
on the date in question of a share of such stock as
determined by the Board of Directors in good faith; and (ii)
in the case of property other than cash or stock, the fair
market value of such property on the date in question as
determined by the Board of Directors in good faith.
J. "Equity Security" shall have the meaning ascribed
to such term in Section 3(a)(11) of the Securities Exchange
Act of 1934, as in effect on January 1, 1988.
K. "Voting Stock" shall mean the shares of all classes
of capital stock of the Corporation entitled to vote on a
Business Combination.
L. "Total Voting Power" shall mean the aggregate of
all votes of all outstanding shares of Voting Stock.
Section 5. A majority of the Disinterested Directors
shall have the power and duty to determine for the purposes
of this Article Seven, on the basis of information known to
them after reasonable inquiry, (A) whether a person is an
Interested Stockholder, (B) the number of shares of Voting
Stock beneficially owned by any person, (C) whether a person
is an Affiliate or Associate of another, (D) whether the
assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any subsidiary
in any Business Combination has, an aggregate Fair Market
Value of $1,000,000 or more. A majority of the Disinterested
Directors shall have the further power to interpret all of
the terms and provisions of this Article Seven and any
interpretation approved by a majority of the Disinterested
Directors shall be final and conclusive.
Section 6. Nothing contained in this Article Seven
shall be construed to relieve any Interested Stockholder from
any fiduciary obligation imposed by law.
ARTICLE EIGHT
The Corporation may agree to the terms and conditions
upon which any director, officer, employee or agent accepts
his office or position and in its bylaws, by contract or in
any other manner may agree to indemnify and protect any
director, officer, employee or agent of the Corporation, or
any person who serves at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the
fullest extent not prohibited by the laws of the State of
Delaware; provided, however, that the only limitation upon
the power granted to the Corporation by this paragraph shall
be a prohibition against indemnification of any person from
or on account of such person's conduct which was finally
adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct.
Without limiting the generality of the foregoing
provisions of this Article Eight, to the fullest extent
permitted or authorized by the laws of the State of Delaware,
including without limitation the provisions of subsection
(b)(7) of Section 102, Title 8 of the Delaware Code as now in
effect and as it may from time to time hereafter be amended,
no director of the Corporation shall be personally liable to
the Corporation or to its stockholders for monetary damages
for breach of fiduciary duty as a director.
ARTICLE NINE
Except as may be otherwise provided by statute, the
Corporation shall be entitled to treat the registered holder
of any shares of the Corporation as the owner of such shares
and of all rights derived from such shares for all purposes,
and the Corporation shall not be obligated to recognize any
equitable or other claim to or interest in such shares or
rights on the part of any other person, including, but
without limiting the generality of the term "person," a
purchaser, pledgee, assignee or transferee of such shares or
rights, unless and until such person becomes the registered
holder of such shares. The foregoing shall apply whether or
not the Corporation shall have either actual or constructive
notice of the interest of such person.
ARTICLE TEN
The books of the Corporation may be kept (subject to any
provision contained in the statutes of Delaware) outside the
State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in
the Bylaws of the Corporation.
ARTICLE ELEVEN
The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate
of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation and subject to
Article Twelve of this Certificate of Incorporation.
ARTICLE TWELVE
None of the provisions of Articles Four, Five, Six,
Seven, Eleven, Thirteen or this Article Twelve may be
amended, altered, changed or repealed except upon the
affirmative vote at any annual or special meeting of the
stockholders, of the holders of at least two-thirds (2/3) or
more of the Total Voting Power of the then outstanding shares
of Voting Stock, considered for this purpose as one class (it
being understood that for the purpose of this Article Twelve,
each share of Voting Stock shall have the number of votes
granted to it pursuant to Article Four of this Certificate of
Incorporation), nor shall new provisions to this Certificate
of Incorporation be adopted or existing provisions to this
Certificate of Incorporation be amended, altered or repealed
which in either instance are in conflict or inconsistent with
Articles Four, Five, Six, Seven, Eleven, Thirteen or this
Article Twelve except upon such two-thirds (2/3) or more
stockholder vote. Any inconsistency developing between the
provisions of a Bylaw and any provisions of this Certificate
of Incorporation shall be controlled by this Certificate of
Incorporation.
ARTICLE THIRTEEN
Section 1. No action required or permitted to be taken
at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
Section 2. Except as otherwise required by law and
subject to the rights, if any, of the holders of Preferred
Stock or any series thereof, special meetings of the
stockholders of the Corporation may be called only by the
Chairman of the Board of Directors, the President of the
Corporation or the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of
Directors.
* * *
THIRD: Thereafter, pursuant to a resolution of its
Board of Directors, a special meeting of the corporation's
stockholders was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law of
the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted to approve and
adopt the proposed amendment and restatement of the
Certificate of Incorporation.
FOURTH: The amendment and restatement of the
Certificate of Incorporation was duly adopted and approved in
accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed by Roger J. Sippl, its President,
and Dan G. Sully, its Secretary, effective this 8th day
of February, 1988.
By: /S/ Roger J. Sippl
Roger G. Sippl, President
Attest: /S/ Dan G. Sully
Dan G. Sully, Secretary
AMENDMENT TO THE BYLAWS
OF
INFORMIX CORPORATION
a Delaware corporation
I, DAVID H. STANLEY, as Secretary of INFORMIX CORPORATION, certify that:
1. I am the Secretary of INFORMIX CORPORATION, a Delaware
corporation (the "Corporation").
2. On December 16, 1992, the Board of Directors of INFORMIX
CORPORATION approved the following amendment to Article III, Section 1
of the Bylaws of INFORMIX CORPORATION:
Section 1. Management. The property, business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors. The number of Directors of the Corporation (including
Directors to be elected by the holders of any one or more series of
Preferred Stock voting separately as a class or classes) shall be five
(5). As used in these Bylaws, the terms "whole Board" or "whole Board
of Directors" mean the total number of Directors which the Corporation
would have if there were no vacancies. In addition to the powers and
authorities by these Bylaws and the Certificate of Incorporation
expressly conferred upon it, the Board of Directors may exercise all
such powers of the Corporation, and do all such lawful acts and things
as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Effective December 16, 1992 INFORMIX CORPORATION
By: /S/ DAVID H. STANLEY
DAVID H. STANLEY, Secretary
AMENDMENT TO THE BYLAWS
OF
INFORMIX CORPORATION
a Delaware corporation
I, DAVID H. STANLEY, as Secretary of INFORMIX CORPORATION, certify that:
1. I am the Secretary of INFORMIX CORPORATION, a Delaware
corporation (the "Corporation").
2. On February 13, 1992, the Board of Directors of INFORMIX
CORPORATION approved the following amendment to Article III, Section 1
of the Bylaws of INFORMIX CORPORATION:
Section 1. Management. The property, business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors. The number of Directors of the Corporation (including
Directors to be elected by the holders of any one or more series of
Preferred Stock voting separately as a class or classes) shall be six
(6). As used in these Bylaws, the terms "whole Board" or "whole Board
of Directors" mean the total number of Directors which the Corporation
would have if there were no vacancies. In addition to the powers and
authorities by these Bylaws and the Certificate of Incorporation
expressly conferred upon it, the Board of Directors may exercise all
such powers of the Corporation, and do all such lawful acts and things
as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Effective February 13, 1992 INFORMIX CORPORATION
By: /S/ DAVID H. STANLEY
DAVID H. STANLEY, Secretary
BYLAWS
OF
INFORMIX CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL EXECUTIVE OFFICE. The board of directors
shall fix the location of the principal executive office of the
corporation at any place within or outside the State of Delaware.
The board of directors shall fix and designate a registered business
office and registered agent in the State of Delaware regardless of
whether the corporation maintains a place of business there.
SECTION 2. OTHER OFFICES. The board of directors may at any time
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of stockholders shall be held
at any place within or outside the State of Delaware designated by the
board of directors. In the absence of any such designation,
stockholders' meetings shall be held at the principal executive office
of the corporation.
SECTION 2. ANNUAL MEETINGS. The annual meetings of stockholders shall
be held on such day and at such hour as may be fixed by the board of
directors within thirteen months subsequent to the later of the date of
incorporation of the corporation or the last annual meeting of
stockholders. At such meeting, directors shall be elected and any other
proper business may be transacted.
At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, business must be (a)
specified in the notice of meeting (or any supplement hereto) given by
or at the direction of the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than one
hundred twenty (120) days prior to the date of such meeting (as set
forth in this Section 2). A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be
brought before the annual meeting, (b) the name and address, as they
appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which
are beneficially owned (as such term is defined in Section 4, Paragraph
D of Article Seven of the Corporation's Certificate of Incorporation) by
the stockholder, (d) any material interest of the stockholder in such
business and (e) all other information with respect to each such matter
as would have been required to be included in a proxy statement filed
pursuant to Regulation 14A (17 CFR 240.14a-l et seq.) as then in effect
under the Securities Exchange Act of 1934, as amended, had proxies been
solicited by the Board of Directors with respect thereto.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2. The presiding officer of an
annual meeting shall, if the facts warrant, determine that business was
not properly brought before the meeting in accordance with the
provisions of this Section 2, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before
the meeting shall not be transacted.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders
may be held for any purpose of purposes unless otherwise proscribed by
statute or by the Certificate of Incorporation. Except as otherwise
required by law and subject to the rights, if any, of the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of the stockholders of
the Corporation may be called only by the Chairman of the
Board of Directors, the President of the Corporation or the Board of
Directors pursuant to a resolution approved by a majority of the entire
Board of Directors.
The "call" and the "notice" of any such meeting shall be deemed to
be synonymous.
SECTION 4. NOTICE OF STOCKHOLDERS' MEETINGS. All notices of
meetings of stockholders shall be sent or otherwise given in accordance
with Section 5 of this Article II not fewer than ten (10) nor more than
sixty (60) days before the date of the meeting. The notice shall
specify the place, date and hour of the meeting and (i) in the case if a
special meeting, the nature of the business to be transacted, or (ii) in
the case of the annual meeting, those matters which the board of
directors, at the time of giving the notice, intends to present for
action by the stockholders. The notice of any meeting at which
directors are to be elected shall include the name of any nominee or
nominees whom, at the time of the notice, management intends to present
for election.
SECTION 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written
notice of any meeting of stockholders shall be given. If mailed, notice
shall be deemed to have been given at the time when delivered personally
or deposited in the United States mail, postage prepaid.
An affidavit of the mailing or other means of giving any notice of
any stockholders' meeting shall be executed by the secretary, assistant
secretary, or any transfer agent of the corporation giving the notice,
and shall be filed and maintained in the minute book of the corporation.
SECTION 6. QUORUM. At any meeting of the stockholders, the
holders of a majority of all of the shares of the stock entitled to vote
at the meeting, present in person or by proxy, shall constitute a quorum
for all purposes, unless or except to the extent that the next sentence
is applicable or the presence of a larger number may be required by law.
Where a separate vote by a class or classes is required, a majority of
the shares of such class or classes present in person or represented by
proxy shall constitute a quorum entitled to take action with respect to
that vote on that matter. If a quorum shall fail to attend any meeting,
the chairman of the meeting or the holders of a majority of the shares
of stock entitled to vote who are present, in person or by proxy, may
adjourn the meeting to another place, date, or time.
SECTION 7. ADJOURNED MEETINGS AND NOTICE THEREOF. When a
stockholders' meeting is adjourned to another time or place, notice of
the adjourned meeting need not be given if the time and place thereof
are announced at the meeting at which the adjournment is taken; except
that if the adjournment is for more than thirty days or if the board of
directors shall set a new record date, notice of any adjourned meeting
shall be given to each stockholder of record entitled to vote at the
adjourned meeting in accordance with Sections 4 and 5 of this Article
II. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting.
SECTION 8. VOTING. Except as otherwise required by the
Certificate of Incorporation or the General Corporation Law of Delaware,
each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote of stockholders. Vote may be
by voice or by ballot.
Any holder of shares entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal but if the
stockholder fails to specify the number of shares such stockholder is
voting affirmatively, it shall be conclusively presumed that the
stockholder's approving vote is with respect to all shares said
stockholder is entitled to vote.
SECTION 9. WAIVER OF NOTICE OR CONSENT BY ABSENT STOCKHOLDERS.
The transactions of any meeting of stockholders, either annual or
special, however called and noticed, and wherever held, shall be as
valid as though had at a meeting duly held after regular call and
notice, if a quorum is present either in person or by proxy, and if,
either before or after the meeting, each person entitled to vote, not
present in person or by proxy, signs a written waiver of notice, or a
consent to the holding of such meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any annual or special
meeting of stockholders. All such waivers, consents, or approvals shall
be filed with the corporate records or made a part of the minutes of
the meeting.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when a person objects, at the beginning
of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened; and except that attendance at a
meeting is not a waiver of any right to object to the consideration of
matters not included in the notice of the meeting if that objection is
expressly made at the meeting.
SECTION 10. STOCKHOLDER ACTION; HOW TAKEN. No action required or
permitted to be taken at any annual or special meeting of stockholders
of the Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the taking of
any action is specifically denied.
SECTION 11. PROXIES. Every person entitled to vote for directors
or on any other matter shall have the right to do so either in person or
by one or more agents authorized by a written proxy signed by the person
and filed with the secretary of the corporation. A proxy shall be
deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission, or
otherwise) by the stockholder or the stockholder's attorney in fact. A
validly executed proxy which does not state that it is irrevocable and
is not coupled with an interest shall continue in full force and effect
unless (i) revoked by the person executing it, before the vote pursuant
to that proxy, by a writing delivered to the corporation stating that
the proxy is revoked, or by a subsequent proxy executed by, or
attendance at the meeting and voting in person by, the person executing
the proxy; or (ii) written notice of the death or incapacity of the
maker of that proxy is received by the corporation before the vote
pursuant to that proxy is counted; provided, however, that no proxy
shall be valid after the expiration of three years from the date of the
proxy, unless otherwise provided in the proxy.
SECTION 12. INSPECTORS OF ELECTION. Before any meeting of
stockholders, the board of directors may appoint any persons other than
nominees for office to act as inspectors of election at the meeting or
its adjournment. If no inspectors of election are so appointed, the
chairman of the meeting may appoint inspectors of election at the meeting.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any
way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the results; and
(g) Do any other acts that may be proper to conduct the
elections or votes with fairness to all stockholders.
SECTION 13. STOCKHOLDERS' LISTS. The Secretary or Assistant
Secretary, who shall have charge of the stock ledger, shall prepare and
make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The
list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the
number of shares held by each of them.
ARTICLE III
DIRECTORS
SECTION 1. MANAGEMENT. The property, business and affairs of the
Corporation shall be managed by or under the direction of a Board of
Directors. The number of Directors of the Corporation (including
Directors to be elected by the holders of any one or more series of
Preferred Stock voting separately as a class or classes) shall be
seven(7). As used in these Bylaws, the terms "whole Board" or "whole
Board of Directors" mean the total number of Directors which the
Corporation would have if there were no vacancies. In addition to the
powers and authorities by these Bylaws and the Certificate of
Incorporation expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation, and do all such lawful acts
and things as are not by statute or by the Certificate of Incorporation
or by these Bylaws directed or required to be exercised or done by the
stockholders.
SECTION 2. CLASSES. The members of the whole Board of Directors,
other than those who may be elected by the holders of any Preferred
Stock, or series thereof, shall be divided into three (3) classes (to be
designated as Class I, Class II and Class III), with the term of office
of one class expiring each year. Subject to any shorter or longer term
which may be applicable to a director elected by any series of Preferred
Stock voting separately as a class, at each annual meeting of
stockholders the successors to the class of Directors whose term shall
then expire shall be elected to hold office for a term expiring at the
third succeeding annual meeting and until their respective successors
shall be elected and qualify or until their respective earlier
resignation or removal.
SECTION 3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except for
directorships created pursuant to Article Four of the Certificate of
Incorporation relating to the rights of holders of Preferred Stock, or
any series thereof, and except for vacancies in such directorships, any
vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the number of
Directors, may be filled only by the Board of Directors, acting by a
majority of the Directors then in office, although less than a quorum,
and any Directors so chosen shall hold office until the next election of
the class for which such Directors shall have been chosen and until
their respective successors shall be elected and qualified or until
their respective earlier resignation or removal. No decrease in the
number of Directors shall shorten the term of any incumbent Director.
SECTION 4. REMOVAL OF DIRECTORS. Notwithstanding any other
provisions of these Bylaws (and notwithstanding the fact that some
lesser percentage may be specified by law or these Bylaws), any director
or the entire Board of Directors of the Corporation, except for
directors elected by one or more series of Preferred Stock, voting
separately as a class, may be removed at any time, but only for cause
and only by the affirmative vote of the holders of at least a majority
of the Total Voting Power of the then outstanding shares of Voting
Stock, considered for this purpose as one class (it being understood
that for purposes of this Section 4, each share of the Voting Stock
shall have the number of votes granted to it pursuant to Article Four of
the Corporation's Certificate of Incorporation). For the purposes of
this Section 4, (i) the term "Total Voting Power" shall mean the
aggregate of all votes of all outstanding shares of Voting Stock; and
(ii) the term "Voting Stock" shall mean the shares of all classes of
capital stock of the Corporation entitled to vote on removal of any
Director or the entire Board of Directors in the manner provided in this
Section 4 (except that if the next succeeding sentence is operative,
then the outstanding shares of Preferred Stock shall not be considered
"Voting Stock" for purposes of this Section 4). Notwithstanding the
foregoing, and except as otherwise required by law, whenever the holders
of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more Directors of the
corporation, the provisions of this Article III, Section 4 shall not
apply with respect to the Director or Directors elected by such holders
of Preferred Stock.
SECTION 5. NOTIFICATION OF NOMINATIONS. Subject to the rights of
holders of any class or series of Preferred Stock, nominations for the
election of Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of Directors generally. However, any
stockholder entitled to vote in the election of Directors may nominate
one or more persons for election of Directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not
later than (i) with respect to an election to be held at an annual
meeting of stockholders, one hundred and twenty (120) days in advance of
the date of such meeting (as set forth in Section 2 of Article II of
these Bylaws), and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of Directors, the close
of business on the seventh (7th) day following the date on which notice
of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) the name and address, as they appear on the
Corporation's books, of such stockholder; (d) the class and number of
shares of the Corporation which are beneficially owned (as such term is
defined in Section 4, Paragraph D of Article Seven of the Corporation's
Certificate of Incorporation) by the nominating stockholder an each
nominee proposed by such stockholder; (e) a description of all
arrangements or understandings between the stockholder and each nominee
and any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
stockholder; (f) such other information regarding each nominee proposed
by such stockholder as would have been required to be included in a
proxy statement filed pursuant to Regulation 14A (17 CFR 240.14a-1 et
seq.) as then in effect under the Securities Exchange Act of 1934, as
amended, had the nominee been nominated, or intended to be nominated, by
the Board of Directors; and (g) the consent of each nominee to serve as
a Director of the Corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
SECTION 6. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE.
Meetings
of the board of directors shall be held at any place within or without
the State of Delaware which may be designated in the notice of the
meeting, or, if not stated in the notice or there is no notice,
designated by resolution of the board. In the absence of such
designation, meetings of the board of directors shall be held at the
principal executive office of the corporation. Members of the board may
participate in a regular or special meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a
meeting pursuant to this Section 6 of Article III constitutes presence
in person at such meeting.
SECTION 7. ANNUAL MEETING. Immediately following each annual
meeting of stockholders, the board of directors shall hold a regular
meeting for the purpose of organization, the election of officers and
the transaction of other business. No notice of such meeting need be given.
SECTION 8. OTHER REGULAR MEETINGS. The board of directors may
provide by resolution the time and place for the holding of regular
meetings of the board; provided, however, that if the date so designated
falls upon a legal holiday, then the meeting shall be held at the same
time and place on the next succeeding day which is not a legal holiday.
No further notice of such regular meetings of the board need be given.
SECTION 9. SPECIAL MEETINGS. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the
chairman of the board or the president or any vice president or the
secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
overnight courier, or telegram, charges prepaid, addressed to each
director at that director's address as it is shown on the records of the
corporation or his usual place of business. In case the notice is
mailed, it shall be deposited in the United States mail at least three
(3) days before the time of the holding of the meeting. In case the
notice is delivered personally, or by telephone, overnight courier, or
telegram, it shall be delivered personally or by telephone or to the
courier or telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or
by telephone may be communicated either to the director or to a person
at the office of the director who the person giving the notice has
reason to believe will promptly communicate it to the director. The
notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the corporation.
SECTION 10. QUORUM. A majority of the authorized number of
directors shall constitute a quorum for the transaction of business
except to adjourn as provided in Section 12 of this Article III. Every
act or decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present shall be the act of the
board of directors, unless the Certificate of Incorporation, or the
General Corporations Law of Delaware, specifically requires a greater
number. A meeting at which a quorum is initially present may continue
to transact business, notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required
quorum for such meeting.
SECTION 11. WAIVER OF NOTICE. Notice of a meeting shall be deemed
given to any director who attends the meeting without protesting before
or at its commencement, the lack of notice to such director.
The transactions of any meeting of the board of directors, however
called and noticed or wherever held, shall be as valid as though had at
a meeting duly held after regular call and notice if a quorum is present
and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes thereof. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers,
consents and approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
SECTION 12. ADJOURNMENT. Any meeting of the board of directors,
whether or not a quorum is present, may be adjourned to another time and
place by the vote of a majority of the directors present. If a meeting
is adjourned for more than 24 hours, notice of the time and place of the
reconvened adjourned meeting shall be given to directors absent at the
time of adjournment before the time of the reconvened adjourned meeting.
SECTION 13. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the board of directors may be taken without a
meeting, if all members of the board shall individually or collectively
consent in writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the board. Such
action by written consent shall have the same force and effect as a
unanimous vote of such directors.
SECTION 14. FEES AND COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the Certificate of Incorporation, the Board of Directors
may, by resolution, fix the compensation to be paid Directors for
serving as Directors of the Corporation and may, by resolution, fix a
sum which shall be allowed and paid for attendance at each meeting of
the Board of Directors and may provide for reimbursement of expenses
incurred by Directors in attending each meeting; provided that nothing
herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity and receiving his regular
compensation therefor. Members of special or standing committees may be
allowed similar compensation for attending committee meetings.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES. The board of directors may, by resolution
adopted by a majority of the authorized number of directors, designate
such committees, each consisting of one or more directors, as it may
from time to time deem advisable to perform such general or special
duties as may from time to time be delegated to any such committee by
the board of directors, subject to the limitations contained in the
General Corporations Law of Delaware, or imposed by the Certificate of
Incorporation or by these bylaws. Any committee so designated may
exercise the power and authority of the board of directors to declare a
dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware if the resolution which designates the
committees or a supplemental resolution of the board of directors so
provides. The board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any
meeting of the committee.
SECTION 2. MINUTES. Each committee shall keep regular minutes of
its proceedings, which shall be filed with the Secretary.
SECTION 3. MEETINGS. Except as otherwise provided in these bylaws
or be resolution of the board of directors, each committee shall adopt
its own rules governing the time and place of holding and the method of
calling its meetings and the conduct of its proceedings and shall meet
as provided by such rules. Unless otherwise provided by such rules or
by resolution of the board of directors, committee meetings shall be
governed by Sections 11, 12 and 13 and Article III of these bylaws.
SECTION 4. TERM OF OFFICE OF COMMITTEE MEMBERS. The term of office
of any committee member shall be as provided in the resolution of the
board of directors designating such committee member but shall not
exceed such committee member's term as a director. Any member of a
committee may be removed at any time by resolution adopted by a majority
of the directors, either present at a meeting of the board or by written
approval thereof.
ARTICLE V
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
Chief Executive Officer, a Vice President, a Secretary, and a Treasurer,
who shall be the Chief Financial Officer of the Corporation. The
Corporation may also have, at the discretion of the Board of Directors,
a Chairman of the Board, a President, one or more additional Vice
Presidents, one or more Assistant Treasurers, and such other officers as
may be appointed in accordance with the provisions of Section 3 of this
Article V. One person may hold two or more offices.
SECTION 2. ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of
Section 3 and 5 of this Article V, shall be chosen annually by the board
of directors and each shall hold office until such officer shall resign
or shall be removed or otherwise disqualified to serve, or such
officer's successor shall be elected and qualified.
SECTION 3. SUBORDINATE OFFICERS, ETC. The board of directors may
appoint, or may empower the president to appoint, such other officers as
the business of the corporation may require, each of whom shall hold
office for such period, have such authority and perform such duties as
are provided in these bylaws or as the board of directors may from time
to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS. Any officer may
be removed, either with or without cause, by a majority of the directors
at the time in office, at any regular or special meeting of the board,
or, except in case of an officer chosen by the board of directors, by an
officer upon whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving written notice to the
corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 5. VACANCIES IN OFFICE. A vacancy in any office because
of death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these bylaws for regular
appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD. The chairman of the board, if
there shall be such an officer, shall, if present, preside at all
meetings of the board of directors, and exercise and perform such other
powers and duties as may be from time to time assigned to him or her by
the board of directors or prescribed by these Bylaws.
SECTION 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall, subject to the provisions of these By-Laws and to the direction
of the Board of Directors, and the Chairman of the Board perform all
duties and have all powers which are commonly incident to the office of
chief executive officer of a corporation, and shall exercise and perform
such other powers and duties as may be from time to time assigned to him
by the Board of Directors or the Chairman of the Board, or prescribed by
these Bylaws.
SECTION 8. PRESIDENT. Subject to such supervisory powers, if any,
as may be given by the Board of Directors to the Chairman of the Board
or Chief Executive Officer, if there shall be such officers, the
President shall be the chief operating officer of the corporation and
shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the business and officers of the
corporation. He or she shall have the general powers and duties of
management usually vested in the office of president and chief operating
officer of a corporation, and shall have such other powers and duties as
may be prescribed by the Board of Directors or by these Bylaws. In the
event that the Board of Directors does not appoint an individual to
serve as President of the Corporation, then all of the duties and
responsibilities specified in Section 8 shall be given to the Chief
Executive Officer, and all references in the Bylaws to the President
shall be deemed to refer to the Chief Executive Officer.
SECTION 9. VICE PRESIDENT. In the absence or disability of the
president, the vice presidents in order of their rank as fixed by the
board of directors, or if not ranked, the vice president designated by
the board of directors, shall perform the duties of the president, and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the president. The vice presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors of these
bylaws.
SECTION 10. SECRETARY. The secretary shall keep, or cause to be
kept, a book of minutes in written form of the proceedings of the board
of directors, committees of the board, and stockholders. Such minutes
shall include all waivers of notice, consents to the holding of
meetings, or approvals of the minutes of meetings executed pursuant to
these bylaws or the General Corporations Law of Delaware. The secretary
shall keep, or cause to be kept at the principal executive office or at
the office of the corporation's transfer agent or registrar, a record of
its stockholders, giving the names and addresses of all stockholders and
the number and class of shares held by each.
The secretary shall give or cause to be given, notice of all
meetings of the stockholders and of the board of directors required by
these bylaws or by law to be given, and shall keep the seal of the
corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the board of directors
or these bylaws.
SECTION 11. CHIEF FINANCIAL OFFICER. The chief financial officer
shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of account in written form or any other
form capable of being converted into written form.
The chief financial officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the board of directors. He shall
disburse all funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever they
request it, an account of all of his transactions as chief financial
officer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties as may be
prescribed by the board of directors or by these bylaws.
SECTION 12. COMPENSATION. The compensation of the officers shall
be fixed from time to time by the board of directors, and no officer
shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative,
investigative, or appellate ("Proceeding"), by reason of the fact that
he or she is or was a director or officer of the corporation or is or
was serving at the request of the corporation as a director or officer
of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans, whether the basis of such Proceeding is alleged action in an
official capacity as a director or officer or in any other capacity
while serving as a director or officer shall be indemnified and held
harmless by the corporation to the fullest extent not prohibited by the
General Corporation law of Delaware, as the same exits or may hereafter
be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader
indemnification rights than said Law permitted the corporation to
provide prior to such amendment) against all expenses, liability and
loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith or in connection with the investigation, defense, settlement
or appeal of such Proceeding and such indemnification shall continue as
to a person who has ceased to be a director or officer and shall inure
to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that, except as provided in Section 2 of this Article
VI, the corporation shall indemnify any such person seeking indemnity in
connection with a Proceeding (or part thereof) initiated by such person
only if such Proceeding (or part thereof) was authorized by the board of
directors of the corporation. The right to indemnification conferred by
this Section shall include the right to be paid by the corporation
expenses incurred in defending any such Proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); PROVIDED,
HOWEVER, that, if required by the General Corporation Law of Delaware,
an advancement of expenses incurred by a director or officer in his or
her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal that
such director or officer is not entitled to be indemnified under this
Section or otherwise. Any other provision herein to the contrary
notwithstanding, the corporation shall not be obligated under these
bylaws to indemnify the indemnitee for any amounts paid in settlement of
a Proceeding unless the corporation consents to such settlement which
consent shall not be unreasonably withheld.
SECTION 2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under
Section 1 of this Article VI is not paid in full by the corporation
within sixty (60) days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days,
the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the
corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any
suit by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has
not met the applicable standard of conduct set forth under the General
Corporation Law of Delaware. Neither the failure of the corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the indemnitee is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation law of Delaware, nor an
actual determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create
a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of a suit brought by the indemnitee, be a
defense to such a suit. In a suit brought by the indemnitee to enforce
a right to indemnification or to an advancement of expenses hereunder,
or by the corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee
is not entitled to be indemnified, or to such advancement of expenses,
under this Article or otherwise shall be on the corporation.
SECTION 3. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The corporation may, to the extent authorized from time to
time by the board of directors, grant rights to indemnification, and to
the advancement of expenses to any employee or agent of the corporation
to the fullest extent of the provisions of this Article with respect to
the indemnification of and advancement of expenses to directors and
officers of the corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article VI shall not be exclusive of any other right
which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation or these bylaws,
agreement, vote of stockholders or disinterested directors, insurance
policy, or otherwise. Nothing contained herein shall limit in any way
any right which the corporation may have to make additional
indemnifications with respect to the same or different persons or
classes of persons.
SECTION 5. INDEMNIFICATION CONTRACTS. The board of directors is
authorized to enter into a contract with any director, officer, employee
or agent of the corporation, or any person serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
including employee benefit plans, providing for indemnification rights
equivalent to or, if the board of directors so determines, greater
than, those provided for in this Article VI.
SECTION 6. INSURANCE. The corporation may maintain insurance, at
its expense, to protect itself and any such director, officer, employee
or agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the
General Corporation Law of Delaware.
SECTION 7. SEVERABILITY. If any provision of this Article or the
application of any such provision to any person or circumstance is held
invalid, illegal or unenforceable for any reason whatsoever, the
remaining provisions of this Article and the application of such
provision to other persons or circumstances shall not be affected
thereby and to the fullest extent legally permissible the court finding
such provision invalid, illegal or unenforceable shall modify and
construe the provision so as to render it valid and enforceable as
against all persons or entities and to give the maximum possible
protection to persons subject to indemnification hereby. Without
limiting the generality of the foregoing, if any officer or director of
the corporation or any person who is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans is
entitled under any provision of this Article, to indemnification by the
corporation for some or a portion of the expenses, liability and loss
(including without limitation attorney's fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection with any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, investigative or appellate, but not,
however, for the total amount thereof, the corporation shall
nevertheless indemnify such person for the portion thereof to which
such person is entitled.
SECTION 8. EFFECT OF AMENDMENT. The rights granted by this
Article shall be vested in each person entitled to indemnification
hereunder as a bargained-for, contractual condition of such person's
acceptance of his election or appointment in any of the capacities set
for in Section 1 of this Article. Any amendment, repeal or modification
of any provision of this Article VI by the stockholders or the directors
of the corporation shall not adversely affect any right of protection of
a director or officer of the corporation existing at the time of such
amendment, repeal or modification.
ARTICLE VII
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF BOOKS AND RECORDS. The
corporation shall keep at its principal executive office, or at the
office of its transfer agent or registrar, if either be appointed and as
determined by resolution of the board of directors, a record of its
stockholders, giving the names and addresses of all stockholders and the
number and class of shares held by each stockholder. The corporation
shall also keep at its principal executive office the original or a copy
of the bylaws as amended to date and its other books and records.
Any stockholder of the corporation of record, in person or by
attorney or other agent shall, upon written demand under oath stating
the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list
of its stockholders, and its other books and records and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right
to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other
agent to so act on behalf of the stockholder.
SECTION 2. INSPECTION BY DIRECTORS. Any director shall have the
right to examine the corporation's stock ledger, a list of its
stockholders and its other books and records for a purpose reasonably
related to his or her position as a director.
ARTICLE VIII
GENERAL CORPORATE MATTERS
SECTION 1. REGULATIONS. The Board of Directors shall have power
and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer, conversion and registration of
certificates for shares of stock of the Corporation, not inconsistent
with the laws of Delaware, the Certificate of Incorporation of the
Corporation and these Bylaws.
SECTION 2. FIXING RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any
meeting of stockholders, or to receive payment of any dividend or other
distribution or allotment of any rights or to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date
of any meeting of stockholders, nor more than sixty (60) days prior to
the time for such other action as hereinbefore described, provided,
however, that if no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on
which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of
rights or to exercise any rights of change, conversion or exchange of
stock or for any other purpose, the record date shall be at the close of
business on the day on which the Board of Directors adopts a resolution
relating thereto.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
SECTION 3. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts, or other orders for payment of money, notes, or other evidences
of indebtedness, issued in the name of or payable to the corporation,
shall be signed or endorsed by such person or persons and in such manner
as, from time to time, shall be determined by resolution of the board
of directors.
SECTION 4. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The
board of directors, except as otherwise provided in these bylaws, may
authorize any officer of officers, agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation, and this authority may be general or confined to specific
instances; and, unless so authorized or ratified by the board of
directors or within the agency power of an officer, no officer, agent,
or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
SECTION 5. CERTIFICATE FOR SHARES. A certificate or certificates
for shares of the capital stock of the corporation shall be issued to
each stockholder when any of these shares are fully paid, and the board
of directors may authorize the issuance of certificates or shares as
partly paid provided that these certificates shall state the amount of
the consideration to be paid for them and the amount paid. All
certificates shall be signed in the name of the corporation by the
chairman of the board or vice chairman of the board or the president or
vice president and by the treasurer or an assistant treasurer or the
secretary or any assistant secretary, certifying the number of shares
and the class or series of shares owned by the stockholder. Any or all
of the signatures on the certificate may be facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall have ceased to be that
officer, transfer agent, or registrar before that certificate is issued,
it may be issued by the corporation with the same effect as if that
person were an officer, transfer agent, or registrar at the date of issue.
SECTION 6. LOST CERTIFICATES. Except as provided in this Section
6 of Article VIII, no new certificates for shares shall be issued to
replace an old certificate unless the latter is surrendered to the
corporation and canceled at the same time. The board of directors may,
in case any share certificate or certificate for any other security is
lost, stolen, or destroyed, authorize the issuance of a replacement
certificate on such terms and conditions as the board may require,
including provision for indemnification of the corporation secured by a
bond or other adequate security sufficient to protect the corporation
against any claim that may be made against it, including any expense or
liability, on account of the alleged loss, theft, or destruction of the
certificate or the issuance of the replacement certificate.
SECTION 7. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
chairman of the board, the president, or any vice president, or any
other person authorized by resolution of the board of directors or by
any of the foregoing designated officers, is authorized to vote on
behalf of the corporation any and all shares of any other corporation or
corporations, foreign or domestic, standing in the name of the
corporation. The authority granted to these officers to vote or
represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by
any of these officers in person or by any person authorized to do so by
a proxy duly executed by these officers.
SECTION 8. CONSTRUCTION AND DEFINITIONS. Unless the context
requires otherwise, the general provisions, rules of construction, and
definitions in the General Corporation Law of Delaware shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation
and a natural person.
ARTICLE IX
AMENDMENTS
SECTION 1. AMENDMENTS. These Bylaws may be altered, amended or
repealed, or new bylaws may be adopted, in the manner provided in the
Certificate of Incorporation.
EXHIBIT 11.1
<TABLE>
<CAPTION>
STATEMENT RE COMPUTATION OF EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
THREE MONTHS ENDED SIX MONTHS ENDED
JULY 2, JULY 3, JULY 2, JULY 3,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net income $ 22,122 $ 13,250 $ 41,218 $ 25,770
Weighted average outstanding
shares 132,818 129,132 132,179 129,446
Net effect of outstanding
options 5,410 4,352 5,410 4,846
Weighted average common and
common equivalent shares
outstanding 138,228 133,484 137,589 134,292
Net income per share $ 0.16 $ 0.10 $ 0.30 $ 0.19
</TABLE>
Fully diluted computation not presented since such amounts differ by
less than 3 percent of the net income per share amounts shown above.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements contained in the Company's Form 10Q for the period
ending July 02, 1995 and is qualified in its entirety by reference to
such financial statements.
</LEGEND>
<CIK> 0000799089
<NAME> INFORMIX CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUL-02-1995
<CASH> 137,170
<SECURITIES> 64,263
<RECEIVABLES> 143,316
<ALLOWANCES> 8,478
<INVENTORY> 2,967
<CURRENT-ASSETS> 365,365
<PP&E> 119,731
<DEPRECIATION> 60,436
<TOTAL-ASSETS> 532,005
<CURRENT-LIABILITIES> 185,516
<BONDS> 0
0
0
<COMMON> 1,336
<OTHER-SE> 328,687
<TOTAL-LIABILITY-AND-EQUITY> 532,005
<SALES> 233,548
<TOTAL-REVENUES> 311,392
<CGS> 16,017
<TOTAL-COSTS> 248,858
<OTHER-EXPENSES> 296
<LOSS-PROVISION> 2,973
<INTEREST-EXPENSE> 219
<INCOME-PRETAX> 65,948
<INCOME-TAX> 24,730
<INCOME-CONTINUING> 41,218
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 41,218
<EPS-PRIMARY> 0.30
<EPS-DILUTED> 0.30
</TABLE>
