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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INFORMIX CORPORATION
(Exact name if issuer as specified is its charter)
<TABLE>
<S> <C>
DELAWARE 94-3011736
(State of (I.R.S. Employer Identification
Incorporation) Number)
</TABLE>
4100 BOHANNON DRIVE
MENLO PARK, CALIFORNIA 94025
(Address, including zip code and telephone number, including
area code, of Registrant's principal executive offices)
DAVID H. STANLEY
VICE PRESIDENT, LEGAL, GENERAL COUNSEL AND SECRETARY
INFORMIX CORPORATION
4100 BOHANNON DRIVE
MENLO PARK, CALIFORNIA 94025
(415) 926-6300
(Name, address, including zip code and telephone number, including area code, of
agent for service)
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COPIES TO:
Douglas H. Collom
Roger E. George
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(415) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock $0.01 par value...................... 231,900 shares $28.50 $6,609,150 $2,280
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933 on the basis of
the average of the high and low prices at January 17, 1996 of the Common
Stock of the Registrant as reported on the Nasdaq Stock Market.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS SUBJECT TO COMPLETION JANUARY , 1996
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231,900 SHARES
INFORMIX CORPORATION
COMMON STOCK
($0.01 PAR VALUE)
This Prospectus relates to the public offering, which is not being
underwritten, of shares of the common stock, $0.01 par value per share ("Common
Stock"), of Informix Corporation (together with its consolidated subsidiaries,
"Informix") offered from time to time by any or all of the Selling Stockholders
named herein (the "Selling Stockholders") who received such shares in exchange
for their shares of the capital stock of Stanford Technology Group, Inc. ("STG")
upon the merger of STG with and into a wholly-owned subsidiary of Informix on
October 31, 1995. Such shares were issued pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), provided by Section 4(2) thereof. Informix will receive no
part of the proceeds of sales made hereunder. All expenses of registration
incurred in connection with this offering are being borne by Informix, but all
selling and other expenses incurred by Selling Stockholders will be borne by
such Selling Stockholders. None of the shares offered pursuant to this
Prospectus has been registered prior to the filing of the Registration Statement
of which this Prospectus is a part.
The Common Stock offered hereby may be offered and sold from time to time by
the Selling Stockholders directly or through broker-dealers or underwriters who
may act solely as agents, or who may acquire the Common Stock as principals. The
distribution of the Common Stock may be effected in one or more transactions
that may take place through the Nasdaq National Market, including block trades
or ordinary broker's transactions, or through privately negotiated transactions,
or through underwritten public offerings, or through a combination of any such
methods of sale, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Usual and
customary or specially negotiated brokerage fees or commissions may be paid by
the Selling Stockholders in connection with such sales. See "Plan of
Distribution."
The Common Stock of Informix is traded in the over-the-counter market on the
Nasdaq National Market (Nasdaq Symbol: IFMX). On January 17, 1996, the closing
sale price of a share of Informix's Common Stock was $27.75.
SEE "RISK FACTORS" ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY.
Each Selling Stockholder and any broker executing selling orders on behalf
of the Selling Stockholders may be deemed to be an "underwriter" within the
meaning of the Securities Act. Commissions received by any such broker may be
deemed to be underwriting commissions under the Securities Act.
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NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY INFORMIX.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES BY ANY PERSON IN
ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH OFFER,
SOLICITATION OR SALE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
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AVAILABLE INFORMATION
Informix is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's regional offices at: Seven World Trade Center, New York,
New York 10048; and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661; and copies of such material can be obtained form the Public Reference
Section of the Commission, Washington, D.C. 20549, at prescribed rates.
Information as of particular dates concerning directors and officers of
Informix, their remuneration, options granted to them, the principal holders of
securities of Informix, and any material interest of such persons in
transactions with Informix has been or will be disclosed in the proxy statements
to be distributed to stockholders of Informix and filed with the Commission.
This Prospectus contains information concerning Informix, but does not
contain all the information set forth in the Registration Statement on Form S-3
which Informix has filed with the Securities and Exchange Commission under the
Securities Act (the "Registration Statement"). The Registration Statement,
including various exhibits, may be inspected at the Commission's office in
Washington, D.C.
INFORMATION INCORPORATED BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed with the Securities and Exchange
Commission:
(1) Informix's Annual Report on Form 10-K for the fiscal year ended December
31, 1994.
(2) Informix's Quarterly Reports on Form 10-Q for the fiscal quarters ended
April 2, July 2, and October 1, 1995.
(3) Informix's Current Reports on Form 8-K filed on January 25, 1995 and
Form 8-K/A filed on March 22, 1995.
[(4) Informix's Current Report on Form 8-K to be filed on February ,
1996.]
(5) Informix's Registration Statement on Form 8-A/A filed on August 11,
1995.
All documents filed by Informix pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of securities contemplated hereby shall be deemed to
be incorporated by reference in this Prospectus or any Prospectus Supplement and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference or deemed to be incorporated
by reference in this Prospectus or any Prospectus Supplement shall be deemed to
be modified or superseded for all purposes of this Prospectus or such Prospectus
Supplement to the extent that a statement contained herein, therein or in any
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein or in such Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any Prospectus Supplement.
Informix will provide without charge to each person to whom a copy of this
Prospectus has been delivered, upon the written or oral request of such person,
a copy of any and all of the documents referred to above which have been or may
be incorporated in this Prospectus by reference (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
therein). Requests for such copies should be directed to: General Counsel,
Informix Corporation, 4100 Bohannon Drive, Menlo Park, California 94025;
telephone number (415) 926-6300.
3
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THE COMPANY
Informix designs, develops, manufactures, markets and supports distributed
relational database management systems, object-oriented, graphical-and
character-based application development tools and graphical data-access tools
for delivering information to most significant desktop platforms. In addition to
software products, Informix offers training, consulting and maintenance to its
customers.
Informix Corporation was initially incorporated in California in 1980 and
was reincorporated in Delaware in 1986. Informix maintains its executive offices
at 4100 Bohannon Drive, Menlo Park, California 94025 and its telephone number is
(415) 926-6300.
FORWARD LOOKING INFORMATION
This Prospectus, including the information incorporated by reference herein,
contains forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Actual results could differ
materially from those projected in the forward-looking statements as a result of
the risk factors set forth below. Reference is made in particular to the
discussion set forth under "Management's Discussion of Analysis of Financial
Condition and Results of Operations" in the Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and in the Quarterly Reports on Form 10-Q
for the fiscal quarters ended April 2, July 2 and October 1, 1995. In connection
with forward-looking statements which appear in these disclosures, prospective
purchasers of the Common Stock offered hereby should carefully review the
factors set forth in this Prospectus under "Risk Factors -- Uncertainties
Relating to the Merger with Illustra," "-- Fluctuations in Quarterly Results,"
"-- Volatility of Informix Stock Prices," "-- Competition," "-- International
Operations" and "-- Management of Growth."
RISK FACTORS
In addition to the other information in this Prospectus or incorporated
herein by reference, the following factors should be considered carefully in
evaluating Informix and its business before purchasing the Common Stock offered
hereby:
UNCERTAINTIES RELATING TO THE MERGER WITH ILLUSTRA. Informix and Illustra
Information Technologies, Inc. ("Illustra") have entered into an Agreement and
Plan of Reorganization dated as of December 20, 1995 (the "Merger Agreement")
pursuant to which Illustra will be merged into a wholly-owned subsidiary of
Informix ("Merger"). Illustra develops, produces, markets and supports object-
relational database systems and software tools and also provides consulting,
training and maintenance services. As a result of the Merger, all outstanding
shares of Illustra Common Stock and Illustra Preferred Stock will become shares
of Informix Common Stock and all outstanding options and warrants to acquire
Illustra Common Stock or Illustra Preferred Stock will become options and
warrants to acquire Informix Common Stock. The maximum number of shares of
Informix Common Stock to be issued (including Informix Common Stock to be
reserved for issuance upon exercise of any of Illustra's options and warrants to
be assumed by Informix) in the Merger in exchange for the outstanding shares of
Illustra Common Stock and Illustra Preferred Stock and all unexpired and
unexercised options and warrants to acquire Illustra Common Stock or Illustra
Preferred Stock will be 15,000,000. The Merger is subject to a number of
conditions, including approval by the Illustra stockholders. Assuming all
conditions to the Merger are met or waived prior thereto, it is currently
anticipated that the effective time of the Merger will be on or about February
29, 1996. The following are risks associated with the Merger:
UNCERTAINTIES RELATING TO INTEGRATION OF OPERATIONS. Informix and
Illustra have entered into the Merger Agreement with the expectation that
the Merger will result in beneficial synergies for the combined companies.
Achieving the anticipated benefits of the Merger will depend in part upon
whether the integration of the two companies' businesses is achieved in an
efficient and effective manner, and there can be no assurance that this will
occur. The combination of the two companies will require, among other
things, integration of Illustra's object-relational database
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technology with Informix's relational database technology and integration of
their respective sales and marketing and research and development efforts.
There can be no assurance that integration will be accomplished smoothly, on
time or successfully. The difficulties of such integration may be increased
by the complexity of the technologies being integrated and the necessity of
coordinating geographically separated organizations. The integration of
certain operations following the Merger will require the dedication of
management resources which may temporarily distract attention from the
day-to-day business of the combined companies. Failure to effectively
accomplish the integration of the two companies' operations could have an
adverse effect on Informix's results of operations and financial condition.
POTENTIAL DILUTIVE EFFECT TO STOCKHOLDERS. Although the companies
believe that beneficial synergies will result from the Merger, there can be
no assurance that the combining of the two companies' businesses, even if
achieved in an efficient, effective and timely manner, will result in
combined results of operations and financial condition superior to what
would have been achieved by each company independently, or as to the period
of time required to achieve such result. The issuance of Informix Common
Stock in connection with the Merger will have the effect of reducing
Informix's net income per share and could reduce the market price of
Informix Common Stock unless and until revenue growth or cost savings and
other business synergies sufficient to offset the effect of such issuance
can be achieved. There can be no assurance that such synergies will be
achieved.
NEED FOR ACCEPTANCE OF OBJECT-RELATIONAL TECHNOLOGY. The market for the
object-relational database products of Illustra is new and evolving, and its
growth depends both upon the growing need to store complex data and the
broader market acceptance of Illustra's object-relational technology as the
solution for this need. Because object-relational technology represents a
shift in programming methodology, it requires a substantial investment in
the retraining of programmers, which can be expensive and reduce the
productivity of programmers during the training period. As a result, there
can be no assurance that organizations will choose to make the transition
from conventional relational database management systems to
object-relational database management systems, and the time frame within
which such transition may occur, even if they believe that they can benefit
from the advantages of an object-relational system. Any delay in the
market's acceptance of object-relational database management systems will
reduce the anticipated benefits of the Merger and could have an adverse
effect on Informix's results of operations and financial condition.
COSTS OF INTEGRATION; TRANSACTION EXPENSES. The combined companies'
results of operations will be adversely affected by Merger-related expenses,
consisting of transaction costs for investment bankers fees, attorneys,
accountants, financial printing and other related charges estimated to be
approximately $5 million dollars. These nonrecurring costs will be charged
to operations in the fiscal quarter in which the Merger is consummated. This
estimate is preliminary and is therefore subject to change.
FLUCTUATIONS IN QUARTERLY RESULTS. Informix's operating results can vary
substantially from period to period. The timing and amount of Informix's license
revenues are subject to a number of factors that make estimation of operating
results prior to the end of a quarter extremely uncertain. Informix has operated
historically with little or no backlog, and as a result, license revenues in any
quarter are dependent on contracts entered into or orders booked and shipped in
that quarter. Informix's quarterly operating margins have generally followed a
historic pattern, with second half revenues and operating margins generally
being higher than those of the preceding first half. Informix believes that this
pattern has been primarily related to customers' capital spending cycles at the
end of a calendar year as well as to Informix's selling efforts, influenced by
annual sales incentive plans, at the end of the calendar year, which is the end
of Informix's fiscal year. Additionally, as is common in the industry, a
disproportionate amount of Informix's license revenue is derived from
transactions that close in the last few weeks of a quarter. The timing of
closing of large license agreements also increases the risk of
quarter-to-quarter fluctuations and the uncertainty of estimating quarterly
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operating results. Informix's operating expenses are based on projected annual
and quarterly revenue levels, have been increasing at rates approaching the rate
of total revenue growth and are incurred approximately ratably throughout each
quarter. As a result, if projected revenues are not realized in the expected
period, Informix's operating results for that period would be adversely affected
as the operating expenses are relatively fixed in the short term. Failure to
achieve revenue, earnings and other operating and financial results as
forecasted or anticipated by brokerage firm analysts or industry analysts could
result in an immediate and adverse effect on the market price of Informix's
Common Stock. Further, Informix may not learn of, or be able to confirm, revenue
or earning shortfalls until the end of each quarter, which could result in an
even more immediate and adverse effect on the trading price of Informix's Common
Stock.
VOLATILITY OF INFORMIX STOCK PRICES. The market for Informix's Common Stock
is highly volatile. The trading price of Informix's Common Stock could be
subject to wide fluctuations in response to quarterly variations in operating
and financial results, announcements of technological innovations or new
products by Informix or its competitors, changes in prices of Informix's or its
competitors' products and services, changes in product mix, changes in
Informix's revenue and revenue growth rates for Informix as a whole or for
individual geographic areas, business units, products or product categories, as
well as other events or factors. Statements or changes in opinions, ratings, or
earnings estimates made by brokerage firms or industry analysts relating to the
market in which Informix does business or relating to Informix specifically have
resulted, and could in the future result, in an immediate and adverse effect on
the market price of Informix's Common Stock. Statements by financial or industry
analysts regarding the extent of the dilution in Informix's net income per share
resulting from the Merger and the extent to which such analysts expect potential
business synergies to offset such dilution can be expected to contribute to
volatility in the market price of Informix Common Stock. In addition, the stock
market has from time to time experienced extreme price and volume fluctuations
which have particularly affected the market price for the securities of many
high-technology companies and which often have been unrelated to the operating
performance of these companies. These broad market fluctuations may adversely
affect the market price of Informix Common Stock.
COMPETITION. The market for Informix's software products and services is
extremely competitive. The chief competition faced by Informix is currently
provided by Oracle Corporation, Sybase, Inc., CA Ingres (a subsidiary of
Computer Associates International, Inc.), IBM Corporation, Microsoft Corporation
and Red Brick Systems and suppliers of third party tools such as Gupta
Corporation, Forte Software, Inc. and Dynasty Technologies, Inc. Some of
Informix's current competitors and many potential competitors have greater
financial, technical and marketing resources than Informix. To the extent that
market acceptance for personal computer oriented technologies increases at the
expense of UNIX or other non-PC platforms, this could result in greater price
pressure on certain of Informix's database products and services. The
availability and market acceptance of Microsoft Corporation's Windows NT
operating system may increase the competition faced by the principal operating
system platforms on which Informix's products operate and may result in greater
price pressure on certain of Informix's database products and services. Also,
new or enhanced products introduced by existing or future competitors could have
an adverse effect on Informix's business, results of operations and financial
condition. Existing and future competition or changes in Informix's product or
services pricing structure or product or service offerings could result in an
immediate reduction in the prices of Informix's products or services. If this
were to result in significant price declines, the effects of which were not
offset by any resulting increases in sales volume of Informix's products or
services, Informix's business, results of operations and financial condition
would be adversely affected. There can be no assurance that Informix will
continue to compete successfully with its existing competitors or will be able
to compete successfully with new competitors.
TECHNOLOGICAL CHANGE AND NEW PRODUCTS. The market for Informix's products
and services is characterized by rapidly changing technology and frequent new
product introductions. Informix's success will depend upon its ability to
enhance its existing products and to introduce new products on
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a timely and cost-effective basis that meet dynamic customer requirements. There
can be no assurance that Informix will be successful in developing new products
or enhancing its existing products or that such new or enhanced products will
receive market acceptance or be timely delivered to the market. Informix has
experienced product delays in the past and may have delays in the future. Delays
in the scheduled availability or a lack of market acceptance of its products or
failure to accurately anticipate customer demand or meet customer performance
requirements could have a material adverse effect on Informix's business,
results of operations and financial condition. In addition, products as complex
as those offered by Informix may contain undetected errors or bugs when first
introduced or as new versions are released. There can be no assurance that,
despite testing, new products or new versions of existing products will not
contain undetected errors or bugs that will delay the introduction or commercial
acceptance of such products. Informix's success also depends on the ability of
its products to interoperate and perform well with existing and future,
industry-standard leading application software products intended to be used in
connection with relational database management systems. Failure to meet existing
and future interoperability and performance requirements of certain independent
vendors marketing such applications in a timely manner could adversely affect
the market for Informix's products. Commercial acceptance of Informix's products
and services could also be adversely affected by critical or negative statements
or reports by brokerage firms, industry and financial analysts and industry
periodicals concerning Informix, its products, business or competitors or by the
advertising or marketing efforts of competitors, or other factors that could
affect consumer perception.
INTERNATIONAL OPERATIONS. Over half of Informix's net revenues are derived
from its international operations. Informix's operations and financial results
could be significantly affected by factors associated with international
operations such as changes in foreign currency exchange rates and uncertainties
relative to regional economic circumstances, as well as by other risks
associated with international activities. Most of Informix's international
revenue and expenses are denominated in local currencies. Although Informix
takes into account changes in exchange rates over time in its pricing strategy,
Informix's business, results of operations and financial condition could be
materially and adversely affected by fluctuations in foreign currency exchange
rates. There can be no assurance that Informix will not experience fluctuations
in international revenues.
INTEGRATION OF ACQUIRED COMPANIES. Informix has recently completed several
acquisitions including the database division of ASCII Corporation in Japan, STG
in the United States and distributors in Germany, Korea and Malaysia, and has
recently entered into the Merger Agreement to acquire Illustra. Informix may
acquire other distributors, companies, products or technologies in the future.
There can be no assurance that these acquisitions and the acquisition of
Illustra can be effectively integrated, that such acquisitions will not result
in costs or liabilities that could adversely effect Informix's results of
operations and financial condition, or that Informix will obtain the anticipated
or desired benefits of such acquisitions.
KEY PERSONNEL. Informix's success depends in part on the continued
contributions of both companies' key management and technical personnel. The
success of Informix also depends on Informix's ability to attract and retain
other qualified technical, managerial, sales and marketing personnel. The
competition for such personnel is intense in the software industry. Uncertainty
during integration of the businesses of Informix and Illustra may adversely
affect the combined companies' ability to attract and retain such personnel.
MANAGEMENT OF GROWTH. Informix has experienced rapid growth in recent
years. There can be no assurance Informix will maintain its recent rate of
growth. Informix's future growth will depend in part on the ability of its
officers and key personnel to manage growth successfully through the
implementation of appropriate management systems and controls. Failure to
effectively implement or maintain such systems and controls could adversely
affect Informix's business, results of operations and financial condition.
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LIMITATIONS ON PROTECTION OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
Informix relies on a combination of trade secret, copyright and trademark laws
and contractual provisions to protect its proprietary rights in its software
products. There can be no assurance that these protections will be adequate or
that competitors will not independently develop technologies that are
substantially equivalent or superior to Informix's technology. In addition,
copyright and trade secret protection for Informix's products may be unavailable
or unreliable in certain foreign countries. As of the date hereof, Informix had
no issued patents. As the number of software products in the industry and
software patents increases, Informix 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 Informix. Any such claims, with or without
merit, can be time consuming and expensive to defend, and could have an adverse
effect on Informix's business, results of operations and financial condition.
Infringement of valid third party patents and propriety rights could have an
adverse effect on Informix's business, results of operations and financial
condition. Informix also relies on "shrink-wrap" break-the-seal licenses not
signed by the licensee to protect its proprietary rights. "Shrink-wrap" licenses
may be unenforceable under the laws of certain jurisdictions.
DEPENDENCE ON THIRD-PARTY PROVIDERS OF TECHNOLOGY. The products of Informix
use certain products and technologies of various third party software
developers, including both complete products offered as extensions of Informix's
product lines and technology used in the enhancement of internally developed
products. Such products and technologies are obtained from the third party
providers under contractual license agreements, which in some cases are for
limited time periods and in some cases provide that such licenses may be
terminated under certain circumstances. There can be no assurance that Informix
will be able to maintain adequate relations with these third-party providers,
that these third-party providers will commit adequate development resources to
maintain these products and technologies or that the license agreements that are
for limited time periods will be renewed upon termination. In such
circumstances, Informix's inability to obtain or develop substitute technology
could adversely affect Informix's business, results of operations and financial
condition.
EFFECT OF ANTITAKEOVER PROVISIONS OF DELAWARE LAW AND INFORMIX'S CHARTER
DOCUMENTS. Informix is subject to the provisions of Section 203 of the Delaware
General Corporation Law, which has the effect of restricting changes in control
of a company. The Board of Directors of Informix is divided into three classes,
with each class standing for election once every three years. In addition,
Informix's Board of Directors has authority to issue up to 5,000,000 shares of
preferred stock and to fix the rights, preferences, privileges and restrictions,
including voting rights, of such shares without any further vote or action by
the stockholders. Informix also has a Preferred Shares Rights Agreement that
provides for the issuance of rights which upon the occurrence of certain events
would result in significant dilution to Informix Common Stock held by a bidder
for Informix. These and other provisions of the Delaware General Corporation Law
applicable to Informix and Informix's charter documents may have the effect of
delaying, deterring or preventing changes in control or management of Informix.
8
<PAGE>
SELLING STOCKHOLDERS
The following table shows, as to each Selling Stockholder, (i) such
stockholder's name and position with Informix (including its wholly-owned
subsidiary, STG), (ii) the number of shares of Common Stock beneficially owned
prior to the offering, and (iii) the number of shares of Common Stock to be sold
pursuant to this Prospectus:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY SHARES TO BE
OWNED PRIOR TO SOLD
NAME OFFERING (1)(2) IN THE OFFERING
- ------------------------------------------------------------------ ----------------- ----------------
<S> <C> <C>
Jonathan Kraft Charitable Trust of 1996........................... 37,310(3) 37,310
David Lichtblau .................................................. 112,310(4) 28,000
Vice President, Marketing
Stanford Technology Group, Inc.
DPL I Charitable Trust............................................ 56,000(5) 56,000
Sequoia Capital VI................................................ 62,544(6) 62,544
Sequoia Technology Partners VI.................................... 3,924(6) 3,924
Sequoia XXIV...................................................... 3,140(6) 3,140
Kirill Sheynkman ................................................. 112,310 32,110
President, Stanford Technology Group, Inc.
Douglas M. Leone.................................................. 2,218(7) 2,218
J. Thomas McMurray................................................ 2,218(7) 2,218
Michael Moritz.................................................... 2,218(7) 2,218
Thomas F. Stephenson.............................................. 2,218(7) 2,218
</TABLE>
- ------------------------
(1) Based on shares beneficially owned at January 17, 1996.
(2) No Selling Stockholder will own more than 1% of the outstanding shares of
Common Stock of Informix following the sale of the shares offered hereby.
(3) Excludes an additional 75,000 shares of Common Stock owned by Jonathan
Kraft, the trustee of the Jonathan Kraft Charitable Trust of 1996 and the
Vice President, Professional Services of Stanford Technology Group, Inc.
(4) Includes 56,000 shares of Common Stock held by the DPL I Charitable Trust,
of which David Lichtblau is trustee.
(5) Excludes 56,310 shares of Common Stock held by David Lichtblau, who is the
trustee of the DPL I Charitable Trust.
(6) Excludes an aggregate of 8,872 shares of Common Stock held severally by
Douglas M. Leone, J. Thomas McMurray, Michael Moritz and Thomas F.
Stephenson, who are principals of Sequoia Capital and its affiliated
entities.
(7) Excludes an aggregate of 69,608 shares of Common Stock held by Sequoia
Capital VI, Sequoia Technolgy Partners VI and Sequoia XXIV, as to each of
which Messrs. Leone, McMurray, Moritz and Stephenson are principals.
PLAN OF DISTRIBUTION
Informix has been advised by the Selling Stockholders that they and any
person receiving shares from the Selling Stockholders in the form of a bona fide
gift or distribution to a limited partner of a Selling Stockholder (a "Donee")
intend to sell all or a portion of the shares offered hereby from time to time
in the over-the-counter market and that sales will be made at prices prevailing
at the times of
9
<PAGE>
such sales. The Selling Stockholders and any Donee may also make private sales
directly or through a broker or brokers, who may act as agent or as principal.
In connection with any sales, the Selling Stockholders, any Donee and any
brokers participating in such sales may be deemed to be underwriters within the
meaning of the Securities Act. Informix will receive no part of the proceeds of
sales made hereunder.
Any broker-dealer participating in such transactions as agent may receive
commissions from the Selling Stockholders and any Donee (and, if they act as
agent for the purchaser of such shares, from such purchaser). Usual and
customary brokerage fees will be paid by the Selling Stockholders and any Donee.
Broker-dealers may agree with the Selling Stockholders to sell a specified
number of shares at a stipulated price per share, and, to the extent such a
broker-dealer is unable to do so acting as agent for the Selling Stockholders
and any Donee, to purchase as principal any unsold shares at the price required
to fulfill the broker-dealer commitment to the Selling Stockholders and any
Donee. Broker-dealers who acquire shares as principal may thereafter resell such
shares from time to time in transactions (which may involve crosses and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above) in the over-the-counter
market, in negotiated transactions or otherwise at market prices prevailing at
the time of sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such shares commissions computed as
described above.
Informix has advised the Selling Stockholders that the anti-manipulative
Rules 10b-6 and 10b-7 under the Exchange Act may apply to their sales in the
market, has furnished each Selling Stockholder with a copy of these Rules and
has informed them of the need for delivery of copies of this Prospectus. The
Selling Stockholders or any Donee may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act. Any
commissions paid or any discounts or concessions allowed to any such
broker-dealers, and any profits received on the resale of such shares, may be
deemed to be underwriting discounts and commissions under the Securities Act if
any such broker-dealers purchase shares as principal.
Upon notification by a Selling Stockholder or any Donee to Informix that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a cross or block trade, to the extent required, a supplemental
prospectus will be filed under Rule 424(c) under the Securities Act setting
forth the name of the participating broker-dealer(s), the number of shares
involved, the price at which such shares were sold by the Selling Stockholder or
any Donee, the commissions paid or discounts or concessions allowed by the
Selling Stockholder or any Donee to such broker-dealer(s), and where applicable,
that such broker-dealer(s) did not conduct any investigation to verify the
information set forth in this Prospectus.
Any securities covered by this Prospectus which qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under that Rule rather than
pursuant to this Prospectus.
There can be no assurance that any of the Selling Stockholders or any Donee
will sell any or all of the shares of Common Stock offered by them hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California.
10
<PAGE>
INFORMIX CORPORATION
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM NUMBER
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 2,280
Accounting Fees**................................................. $ 5,000
Legal Fees**...................................................... $ 10,000
Printing Fees**................................................... $ 10,000
Miscellaneous**................................................... $ 720
---------
Total......................................................... $ 28,000
---------
---------
</TABLE>
- ------------------------
* All expenses of issuance and distribution (other than commissions and
discounts payable to dealers or underwriters) will be paid by the Company.
** Estimates
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article
Eight of the Registrant's Certificate of Incorporation and Article VI of the
Registrant's Bylaws provide for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by the Delaware
General Corporation Law. In addition, the Registrant has entered into
indemnification agreements with its officers and directors.
ITEM 16 EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -----------
<S> <C>
4.1 Registration Rights Agreement dated as of October 25, 1995 among Informix Corporation and
certain shareholders of Stanford Technology Group, Inc.
4.2* Amended and Restated Preferred Share Rights Agreement of Informix Corporation
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati (Included in Exhibit 5.1)
24 Power of Attorney (See page II-3)
</TABLE>
- ------------------------
* Incorporated by reference to exhibits to the Form 8-A/A Registration Statement
filed on August 11, 1995.
ITEM 17 UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park,
State of California, on the 17th day of January 1996.
INFORMIX CORPORATION
By: /s/ PHILLIP E. WHITE
---------------------------------------
Phillip E. White
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND
CHAIRMAN OF THE BOARD
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints, jointly and severally, David H. Stanley,
Howard H. Graham and Richard C. Blass, and each of them acting individually, as
his attorney-in-fact, each with full power of substitution, for him in any and
all capacities, to sign any and all amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------------------------------------- ----------------
<C> <S> <C>
/s/ PHILLIP E. WHITE President, Chief Executive Officer and
- ----------------------------------------
Chairman of the Board (Principal January 17, 1996
Phillip E. White Executive Officer)
/s/ HOWARD H. GRAHAM Vice President, Finance and Chief
- ----------------------------------------
Financial Officer (Principal Financial January 17, 1996
Howard H. Graham Officer)
/s/ RICHARD C. BLASS Vice President, Corporate Controller and
- ----------------------------------------
Chief Accounting Officer (Principal January 17, 1996
Richard C. Blass Accounting Officer)
/s/ ALBERT F. KNORP, JR.
- ----------------------------------------
Director January 17, 1996
Albert F. Knorp, Jr.
/s/ JAMES L. KOCH
- ----------------------------------------
Director January 17, 1996
James L. Koch
/s/ THOMAS A. MCDONNELL
- ----------------------------------------
Director January 17, 1996
Thomas A. McDonnell
/s/ CYRIL J. YANSOUNI
- ----------------------------------------
Director January 17, 1996
Cyril J. Yansouni
</TABLE>
II-3
<PAGE>
EXHIBIT 4.1
INFORMIX CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of October 25, 1995 by and among Informix Corporation, a Delaware
corporation (the "Company"), and each of the holders of the Company's Common
Stock, $.01 par value per share ("Company Common Stock"), set forth in the
Schedule of Stockholders attached as Exhibit A hereto (each, a "Stockholder").
Each of the Stockholders has received Company Common Stock in connection with
the merger of Stanford Technology Group, Inc. ("STG") with a wholly owned
subsidiary of the Company pursuant to an Agreement and Plan of Reorganization
dated as of October 25, 1995 (the "Reorganization Agreement").
That parties hereto, intending legally to be bound, hereby agree as follows:
1. DEFINITIONS. As used in this agreement, the following terms shall have
the meanings ascribed to them below:
(a) "BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which national banking institutions are
authorized by law, regulation or executive order to close.
(b) "PROSPECTUS" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplements with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, by any other amendments
and prospectus supplements (including post-effective amendments), and by any
material incorporated by reference therein.
(c) "REGISTRABLE SECURITIES" means (i) the shares of Company Common
Stock received by the Stockholders in the amount and as of the date set
forth in the Schedule of Stockholders and (ii) any securities issued or
issuable in respect of or in exchange for any of the shares of Company
Common Stock referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares of Company Common
Stock, recapitalization, reclassification, merger, consolidation, or
exchange offer. For purposes of this Agreement, a Registrable Security
ceases to constitute a Registrable Security (i) when such Registrable
Security shall have been effectively registered under the Securities Act and
disposed of pursuant to the Registration Statement (ii) when such
Registrable Security shall have been sold pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) when such Registrable
Security shall have been otherwise transferred and a new certificate for
such Registrable Security not bearing a legend restricting further transfer
shall have been delivered by the Company, (iv) on the second anniversary of
the date of original issuance, (v) with respect to a Stockholder, on the
date on which all of such Stockholder's remaining Registrable Securities
could be sold in a single transaction in compliance with Rule 144 under the
Securities Act, or (vi) when such Registrable Security shall have ceased to
be outstanding.
(d) "REGISTRATION STATEMENT" shall mean the applicable registration
statement filed by the Company to effect the registration, qualification or
compliance contemplated herein.
(e) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
2. REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. Subject to the terms of this Agreement,
if at any time after January 1, 1996, the Company shall receive from any
Stockholder or group of Stockholders a
1
<PAGE>
written request that the Company effect any registration, qualification or
compliance with respect to all or a part of the Registrable Securities, the
anticipated gross offering price of which would exceed $2,000,000, the
Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Stockholders; and
(ii) as soon as practicable, use its reasonable best efforts to
effect within 60 days of the receipt of such request such registration,
qualification or compliance (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as
may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any Stockholder or Stockholders joining in such
request as are specified in a written request received by the Company
within 15 days after receipt of such written notice from the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant
to this Section:
(A) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(B) prior to 90 days immediately following the effective date of any
registration statement pertaining to securities of the Company (other
than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan);
(C) more than once in any six-month period;
(D) after the Company has effected three (3) such registrations
pursuant to this Section, such registrations have been declared or
ordered effective and the securities offered pursuant to such
registrations have been sold; or
(E) prior to the publication of financial results covering at least
thirty (30) days of the combined operations of the Company and STG after
the merger contemplated by the Reorganization Agreement has been
completed, and such publication is in accordance with the requirements of
Accounting Series Release No. 130 of the Securities and Exchange
Commission.
Subject to the foregoing clauses, the Company shall file a Registration
Statement covering the Registrable Securities so requested to be registered
as soon as practicable after receipt of the request or requests of any
Stockholder or Stockholders. If, however, the Company shall furnish to the
Stockholder or Stockholders requesting a Registration Statement pursuant to
this Section a certificate signed by the President or Chief Financial
Officer of the Company stating that in the good faith judgment of such
officer, it would be detrimental to the Company and its stockholders for
such Registration Statement to be filed and it is therefore essential to
defer the filing of such Registration Statement, the Company shall have the
right to defer such filing for a period of not more than 60 days after
receipt of the request of the Stockholder or Stockholders requesting such
registration.
(b) UNDERWRITING. If the Stockholders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request and the Company
shall include such information in its written notice to the other
Stockholders. The right of any Stockholder to registration pursuant to this
Section shall be conditioned upon such Stockholder's participation in such
underwriting and the inclusion of such
2
<PAGE>
Stockholder's Registrable Securities in the underwriting to the extent
provided herein. Notwithstanding any other provision of this Section, if the
managing underwriter advises the Stockholders in writing that marketing
factors require a limitation of the number of shares to be underwritten,
then, subject to the provisions of Section 2(a), the Company shall so advise
all Stockholders and the number of shares of Registrable Securities that may
be included in the registration and underwriting shall be allocated among
all Stockholders requesting inclusion in the registration in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities
originally requested by such Stockholders to be included in the Registration
Statement. No Registrable Securities excluded from the underwriting by
reason of the managing underwriter's marketing limitation shall be included
in such registration.
If any Stockholder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the other Stockholders. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such
Registrable Securities a greater number of Registrable Securities held by
other Stockholders may be included in such registration (up to the maximum
of any limitation imposed by the underwriters), then the Company shall offer
to all Stockholders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the
same proportion used in determining the underwriter limitation in this
Section. If the registration does not become effective due to the withdrawal
of Registrable Securities, then either (1) the Stockholders requesting
registration shall reimburse the Company for expenses incurred in complying
with the request or (2) the aborted registration shall be treated as
effected for purposes of Section 2(a)(D).
3. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. Subject to the terms of this Agreement, if
the Company shall determine to register any shares of its Common Stock,
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights, other than: (A) a
registration relating solely to employee benefit plans; or (B) a
registration relating solely to a transaction pursuant to Rule 145
promulgated under the Securities Act; the Company will:
(i) promptly give to each Stockholder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written
request or requests, made within 10 days after receipt of such written
notice from the Company, by any Stockholder or Stockholders;
(b) NOTICE OF UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting,
the Company shall so advise the Stockholders as a part of the written notice
given pursuant to Section 3(a). In such event, the right of any Stockholder
to registration shall be conditioned upon such underwriting and the
inclusion of the Registrable Securities held by such Stockholder in such
underwriting to the extent provided in this Section 3. All Stockholders
proposing to distribute their Registrable Securities through such
underwriting (together with the Company and the other stockholders
distributing their securities through such underwriting) shall enter into an
underwriting agreement with the Underwriter's Representative for such
offering. The Stockholders shall have no right to participate in the
selection of the underwriters for an offering pursuant to this Section 3.
(c) UNDERWRITER'S REPRESENTATIVE. Notwithstanding any other provision
of this Section, if the Underwriter's Representative determines that
marketing factors require a limitation of the number of shares of Company
Common Stock to be underwritten, the Underwriter's Representative may limit
(or exclude altogether) the number of Registrable Securities to be included
in the registration and underwriting. In such event, the Company shall also
advise all Stockholders of Registrable Securities which would otherwise be
registered and underwritten pursuant hereto,
3
<PAGE>
and the number of shares of Registrable Securities that may be included in
the registration and underwriting shall be allocated among the Stockholders
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Stockholder. If any Stockholder
disapproves of the terms of any such underwriting, such Stockholder may
elect to withdraw therefrom by written notice to the Company and the
Underwriter's Representative. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(d) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section
prior to the effectiveness of such registration whether or not any
Stockholder has elected to include securities in such registration.
4. REGISTRATION PROCEDURES.
(a) COMPANY PROCEDURES. In connection with the Company's registration
obligations pursuant to Section 2, the Company shall not be required to
maintain and keep any such registration under the Securities Act effective
for a period equal to the shorter of thirty (30) days or that time
reasonably necessary to permit the disposition of the Registrable Securities
subject to such registration. Subject to such limitation, in connection with
the Company's registration obligations pursuant to Sections 2 and 3, the
Company shall:
(i) keep each of the Stockholders whose Registrable Securities are
included in any registration advised as to the initiation and completion
of such registration;
(ii) deliver to each Stockholder, without charge, as many copies of
the then-effective Prospectus covering such Registrable Securities and
any amendments or supplements thereto as such Stockholder may reasonably
request;
(iii) cooperate with the Stockholders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold; and
(iv) prepare and file, if necessary, a post-effective amendment or
supplement to the Registration Statement or the related Prospectus(es) or
any document incorporated therein by reference or file any other required
document so that such Registration Statement and Prospectus will not
thereafter contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading.
(b) STOCKHOLDER PROCEDURES.
(i) The Company may require each Stockholder to furnish to the
Company in writing such information regarding such Stockholder and the
distribution of such Registrable Securities as the Company may from time
to time reasonably request in writing.
(ii) Each Stockholder agrees to use its reasonable best efforts to
cooperate with the Company in connection with the preparation and filing
of a Registration Statement.
5. REGISTRATION EXPENSES. All Registration Expenses (defined below)
incident to a registration of Registrable Securities pursuant to Section 2 and
Section 3 of this Agreement shall be borne by the Company. Registration Expenses
shall include all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including fees and disbursements of counsel in
connection with blue sky qualifications or registrations (or the obtaining of
exemptions therefrom) of the Registrable Securities), printing expenses
(including expenses of printing Prospectuses), messenger and delivery expenses,
internal expenses (including, without limitation, all salaries and expenses of
the Company's officers and employees performing legal or accounting duties),
fees and disbursements of the Company's counsel and its independent certified
public accountants, securities acts liability insurance (if the Company elects
to obtain such insurance), reasonable fees and expenses of any
4
<PAGE>
special experts retained by the Company in connection with any registration
hereunder, and reasonable fees of a single special counsel to the Stockholders
(all such expenses being herein referred to as "Registration Expenses");
PROVIDED, HOWEVER, that Registration Expenses shall not include any sales or
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities.
6. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and
hold harmless, to the full extent permitted by law, each Stockholder, and
each person who controls (within the meaning of the Securities Act) the
Stockholder and his respective representatives and agents, against all
losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and legal expenses) under the Securities Act, the
Exchange Act, applicable state securities law, common law or otherwise
resulting from or based upon any untrue or alleged untrue statement of a
material fact0 contained in the Registration Statements, any related
Prospectus, or any amendment or supplement thereto, or any omission or
alleged omission of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except in each case insofar as
the same arises out of or is based upon an untrue statement or alleged
untrue statement of a material fact or an omission or alleged omission to
state a material fact in such Registration Statement, Prospectus, amendment
or supplement, as the case may be, made or omitted, as the case may be, in
reliance upon and in conformity with written information furnished to the
Company by such Stockholder expressly for use therein, and will reimburse
each Stockholder, each such controlling person and his respective
representatives and agents for any legal and other expenses reasonably
incurred as such expenses are incurred by such Stockholder, each such
controlling person and his respective representatives and agents in
connection with investigating, defending, settling, compromising or payment
any such loss, claim, damages, liability or expense; provided, however, that
the Company will not be liable to any such person or entity with respect to
any such untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus that is corrected in the final
prospectus filed with the Commission pursuant to Rule 424(b) promulgated
under the Securities Act (or any amendment or supplement to such prospectus)
if the person asserting any such loss, claim, damage, liability or expense
purchased securities but was not sent or given a copy of the prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale
of such securities to such person in any case where such delivery of the
prospectus (as amended or supplemented) is required by the Securities Act,
unless such failure to deliver the prospectus (as amended or supplemented)
was a result of the Company's failure to provide such prospectus (as amended
or supplemented). This indemnity is in addition to any liability that the
Company may otherwise have.
(b) INDEMNIFICATION BY THE HOLDERS. Each Stockholder shall, if
Registrable Securities are included in a registration effected pursuant to
this Agreement, indemnify and hold harmless, to the full extent permitted by
law, the Company, its respective officers, directors, employees,
representatives and agents, and each person who controls (within the meaning
of the Securities Act) the Company, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
legal expenses) under the Securities Act, the Exchange Act, applicable state
securities law, common law or otherwise resulting from or based upon any
untrue and alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, to the extent
the same arises out of or is based upon an untrue statement or alleged
untrue statement of a material fact or an omission or alleged omission to
state a material fact in such Registration Statement, Prospectus, amendment
or supplement, as the case may be, made or omitted, as the case may be, in
reliance upon and in conformity with written information furnished to the
Company by such Stockholder expressly for use therein, and will reimburse
the Company, its respective officers, directors,
5
<PAGE>
employees, representatives and agents, and each person who controls (within
the meaning of the Securities Act) the Company, for any legal and other
expenses reasonably incurred as such expenses are incurred by the Company
and each such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability or expense; provided, however, that the obligations of the
Stockholders hereunder shall be limited to an amount equal to the gross
proceeds before expenses and commissions to each such Stockholder of
Registrable Securities sold as contemplated herein. This indemnity is in
addition to any liability that such Stockholder may otherwise have.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each party entitled to
indemnification under this Section 6 (the "Indemnified Party") shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who will
conduct the defense of such claim or litigation, is approved by the
Indemnified Party (whose approval will not be unreasonably withheld or
delayed); and provided, further, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations except to the extent that its defense of the claim or
litigation involved is prejudiced by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that
the Indemnifying Party shall pay such expense if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential conflicts of interest between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect of any claim or litigation, and no Indemnified Party will consent to
entry of any judgment or settle any claim or litigation without the prior
written consent of the Indemnifying Party. Each Indemnified Party shall
furnish such information regarding himself or itself and the claim in
question as the Indemnifying Party may reasonably request and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(d) CONTRIBUTION.
(i) If for any reason the indemnification provided for in this
Section 5 from an Indemnifying Party, although otherwise applicable by
its terms, is determined by a court of competent jurisdiction to be
unavailable to an Indemnified Party hereunder, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Parties as a result of
such losses, claims, damages, liabilities or expenses in such proportion
as is appropriate to reflect the relative fault of an Indemnifying Party
and Indemnified Parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault of the
Indemnifying Party and Indemnified parties shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact, has
been made by, or relates to information supplied by, an Indemnified Party
or Indemnified Parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 6(c), any legal
or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method
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of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
7. SUBSEQUENT REGISTRATION RIGHTS. In connection with any requested
registration effected pursuant to Section 2 above, the Company shall be entitled
to grant to any holder or prospective holder of any securities of the Company
the right to include such securities in such registration; provided, however,
that the inclusion of such securities in any such registration that is
underwritten shall be limited or excluded altogether if the managing underwriter
advises the Company in writing that marketing factors require such a limitation
or exclusion. The rights of such holders or prospective holders to include such
securities in such registration where the managing underwriters does accept such
inclusion shall be subordinate to the rights of any Stockholder or Stockholders.
8. TRANSFER OF RIGHTS. Provided that the Company is given prior written
notice of such assignment, the rights granted hereunder to cause the Company to
register securities may be assigned to (i) a transferee who acquires at least
1,000 shares of Registrable Securities and (ii) any affiliate or constituent
partner or stockholder of a Stockholder.
9. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any of the provisions of this Agreement were
not to be performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition
to any other remedy at law or in equity.
(b) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company shall have obtained the prior written consent of
the Stockholders holding 50% of the securities at the time constituting
Registrable Securities.
(c) NOTICES. All notices, requests, waivers, releases, consents, and
other communications required or permitted by this Agreement (collectively,
"Notices") shall be in writing. Notices shall be deemed sufficiently given
for all purposes under this Agreement when delivered in person, when
dispatched by telegram or (upon written confirmation of receipt) by
electronic facsimile transmission or (upon written confirmation of receipt),
when dispatched by a nationally recognized overnight courier service, or
five Business Days after being deposited in the mail, postage prepaid, if
mailed. all Notices shall be delivered as follows:
(i) if to a Stockholder, at the address indicated on the signature
pages to this Agreement;
(ii) if to the Company, at:
Informix Software, Inc.
4100 Bohannon Drive
Menlo Park, California 94025
Attention: David H. Stanley, Esq.
with a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94034-1050
Attention: Douglas H. Collom, Esq.
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(iii) if to a Stockholder, with a copy to:
Cooley, Godward, Castro, Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
Attention: Gregory C. Smith, Esq.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Company and each Stockholder, their
respective successors, heirs, legal representatives, and with respect to
Stockholders, their assignees, including without limitation all partners and
stockholders in the event of a distribution of the Registrable Securities by
such Stockholders.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS; CONSTRUCTION. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, all references to
Sections are to Sections of this Agreement, "or" is inclusively disjunctive,
and words in the singular include the plural and vice versa. In computing
any period of time specified in this Agreement or in any Notices, the date
of the act or event from which such period of time is to be measured shall
be included, any such period shall expire at 5:00 p.m., San Francisco time,
on the last day of such period, and any such period denominated in months
shall expire on the date in the last month of such period that has the same
numerical designation as the date of the act or event from which such period
is to be measured; provided, however, that if there is not date in the last
month of such period that has the same numerical designation as of the date
of such act or event, such period shall expire on the last day of the last
month of such period.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California, without
regard to the principles of conflicts of laws thereof.
(h) SEVERABILITY. If one or more of the provisions hereof, or the
applicable thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions hereof shall not be in any way
affected or impaired thereby, and the provisions held to be invalid, illegal
or unenforceable shall be reformed to the minimum extent necessary, and in a
manner as consistent with the purposes thereof as is practicable, so as to
render it valid, legal and enforceable.
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be a final expression thereof and is intended to be a complete and
exclusive statement of the agreement and understanding of such parties in
respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings among the Company and any
Stockholders with respect to such subject matter; provided, however, that
the restrictions described herein are in addition to, and not in limitation
of, any other restrictions that may be applicable to each of the
Stockholders, including, without limitation, (i) any restrictions applicable
under the agreements from affiliates of STG dated October 25, 1995, executed
by certain of stockholders and affiliates of STG and (ii) any restrictions
applicable to officers and directors generally under policies of the Company
(including, without limitation, policies relating to executive officers of
the Company in connection with Section (16)(a) of the Exchange Act).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
"COMPANY" INFORMIX CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
"STOCKHOLDERS"
______________________________________
Signature
______________________________________
Print Name
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
9
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EXHIBIT A
SCHEDULE OF STOCKHOLDERS
Jonathan Kraft
David Lichtblau
Kirill Sheynkman
Hummer Winblad Technology Funds II, L.P.
Hummer Winblad Venture Partners II, L.P.
Sequoia Capital VI
Sequoia Technology Partners VI
Andrea Rester
10
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EXHIBIT 5.1
January 17, 1996
Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
RE: Informix Corporation; Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on January 18, 1996 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 231,900 shares of your Common Stock, par
value $0.01 per share (the "Shares"), all of which are authorized and have been
previously issued to the Selling Stockholders named therein in connection with
the acquisition by the Company of all of the outstanding capital stock of
Stanford Technology Group, Inc. The Shares are to be offered by the Selling
Stockholders for sale to the public as described in the Registration Statement.
As your counsel in connection with this transaction, we have examined the
proceedings taken and proposed to be taken in connection with the sale of the
Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated to be taken prior to the registration of the Shares, including such
proceedings to be carried out in accordance with the securities laws of the
various states, where required, the Shares, when sold in the manner referred to
in the Registration Statement, will be legally and validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
/s/ WILSON, SONSINI, GOODRICH &
ROSATI
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-3) of Informix Corporation and in the related Prospectus of our report
dated February 6, 1995, with respect to the consolidated financial statements
and schedule of Informix Corporation included in its Annual Report (Form 10-K)
for the year ended December 31, 1994.
/s/ ERNST & YOUNG LLP
San Jose, California
January 18, 1996
