Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
INFORMIX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
94-3011736
(I.R.S. Employer Identification No.)
4100 Bohannon Drive
Menlo Park, California 94025
(Address of Principal Executive Offices) (Zip Code)
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
David H. Stanley
Vice President,
Legal and Corporate Services,
General Counsel and Secretary
INFORMIX CORPORATION
4100 Bohannon Drive
Menlo Park, California 94025
(Name and Address of Agent for Service)
415-926-6300
(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee(1)
<S> <C> <C> <C> <C>
Common Stock 4,000,000 $8.875 $35,500,000 $10,757.58
($0.01 par shares
value)
</TABLE>
(1) Estimated pursuant to Rule 457 solely for purposes of
calculating the registration fee. Such price is based on the
closing sales price of the Common Stock on July 10, 1997, as
reported on the NASDAQ National Market System.
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this
registration statement:
(a) The latest annual report filed by Informix Corporation
(the "Company") pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934.
(b) All other reports and proxy statements filed by the
Company pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since the end of the fiscal year covered by
the annual report referred to in (a) above.
(c) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form S-4 (No. 333-143,
effective February 7, 1996) filed under the Securities Act of 1933,
in connection with the merger of a subsidiary of the Company and
Illustra Information Technologies, Inc., including any amendment
or report filed for the purpose of updating such description.
All documents filed by the Company after the date of this
registration statement pursuant to sections 13(a), 13(c), 14, and
15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall also be deemed to be incorporated by
reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
David H. Stanley, counsel for the Company, is an executive officer
of the Company and holds the offices of Vice President, Legal and
Corporate Services, General Counsel and Secretary.
The consolidated financial statements and schedule of Informix
Corporation appearing in Informix Corporation's Annual Report
(Form 10-K) for the year ended December 31, 1996 have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference
in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for
monetary damages for breach or alleged breach of the director's
duty of care. While the relevant statute does not change
directors' duty of care, it enables corporations to limit available
relief to equitable remedies such as injunction or rescission. The
statute has no effect on director's duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or
knowing violations of the law, illegal payment of dividends and
approval of any transaction from which a director derives an
improper personal benefit.
The Company has adopted provisions in its Certificate of
Incorporation which eliminate the personal liability of directors
for monetary damages for breach or alleged breach of their duty of
due care. The By-laws of the Company provide for indemnification
of its directors and officers to the full extent permitted by the
General Corporation Law of the State of Delaware, the Company's
state of incorporation, including those circumstances in which
indemnification would be discretionary under Delaware law. The
Company has entered into indemnification agreements with its
directors and executive officers. Section 145 of the General
Corporation Law of the State of Delaware provides for
indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the
Securities Act of 1933.
The Company also carries insurance policies in standard form
indemnifying its directors and officers against liabilities arising
from certain acts performed by them in their respective capacities
as such. The policies also provide for reimbursement of the
Company for certain amounts it may be required or permitted to pay
pursuant to applicable law to its directors and officers on account
of such liabilities.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Informix Corporation 1997 Employee Stock Purchase Plan
4.2 Restated Certificate of Incorporation, as amended, is
incorporated by reference to the Form 10-Q of Informix
Corporation for the fiscal quarter ended July 2, 1995
4.3 By-Laws, as amended, are incorporated by reference
to the Form 10-Q of Informix Corporation for the fiscal quarter
ended July 2, 1995
5 Opinion re Legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst and Young LLP, Independent Auditors
24 Power of Attorney (included in the signature pages to this
registration statement)
Item 9. Undertakings
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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 bonafide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the
start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided that the
registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by section 10(a)(3) of the Act or Rule 3-19 of
this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registrations statement
relating to securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Request For Acceleration of Effective date or Filing of
Registration Statement on Form S-8.
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 provisions
described in Item 6 hereof, 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 Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and 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 July 16, 1997.
INFORMIX CORPORATION
(Registrant)
By /s/ Phillip E. White
Phillip E. White
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of Informix Corporation whose signatures appear
below, hereby constitute and appoint Phillip E. White, David H. Stanley and
Karen Blasing, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Phillip E. White Chairman of the Board, President July 16, 1997
Phillip E. White and Chief Executive Officer
(Principal Executive Officer)
/s/ Karen Blasing Vice President, July 16, 1997
Karen Blasing Corporate Controller and
Chief Accounting Officer
(Principal Financial Officer)
(Principal Accounting Officer)
/s/ Albert F. Knorp, Jr. Director July 16, 1997
Albert F. Knorp, Jr.
/s/ James L. Koch Director July 16, 1997
James L. Koch
/s/ Thomas A. McDonnel Director July 16, 1997
Thomas A. McDonnell
/s/ Cyril J. Yansouni Director July 16, 1997
Cyril J. Yansouni
</TABLE>
Executed by a majority of the members of the Board of Directors.
EXHIBIT 4.1
INFORMIX CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1
PURPOSE
INFORMIX CORPORATION hereby establishes the Informix Corporation
1997 Employee Stock Purchase Plan, effective as of July 1, 1997, in
order to provide eligible employees of the Company and its participating
Subsidiaries with the opportunity to purchase Common Stock through
payroll deductions. The Plan is intended to qualify as an employee
stock purchase plan under Section 423(b) of the Code.
SECTION 2
DEFINITIONS
2.1 "1934 Act" means the Securities Exchange Act of 1934,
as amended. Reference to a specific Section of the 1934 Act or
regulation thereunder shall include such Section or regulation, any
valid regulation promulgated under such Section, and any comparable
provision of any future legislation or regulation amending,
supplementing or superseding such Section or regulation.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as
amended. Reference to a specific Section of the Code or regulation
thereunder shall include such Section or regulation, any valid
regulation promulgated under such Section, and any comparable provision
of any future legislation or regulation amending, supplementing or
superseding such Section or regulation.
2.4 "Committee" means the committee appointed by the Board
to administer the Plan. Any member of the Committee may resign at any
time by notice in writing mailed or delivered to the Secretary of the
Company. As of the effective date of the Plan, the Committee shall be
administered by the Compensation Committee of the Board.
2.5 "Common Stock" means the common stock of the Company.
2.6 "Company" means Informix Corporation, a Delaware
corporation.
2.7 "Compensation" means a Participant's base salary or
regular wages (including sick pay and vacation pay), overtime, bonuses
and commissions. The Committee, in its discretion, may (on a uniform
and nondiscriminatory basis) establish a different definition of
Compensation prior to an Enrollment Date for all options to be granted
on such Enrollment Date.
2.8 "Eligible Employee" means every Employee of an
Employer, except (a) any Employee who immediately after the grant of an
option under the Plan, would own stock and/or hold outstanding options
to purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or
of any Subsidiary of the Company (including stock attributed to such
Employee pursuant to Section 424(d) of the Code), or (b) as provided in
the following sentence. The Committee, in its discretion, from time to
time may, prior to an Enrollment Date for all options to be granted on
such Enrollment Date, determine (on a uniform and nondiscriminatory
basis) that an Employee shall not be an Eligible Employee if he or she:
(1) has not completed at least two years of service since his or her
last hire date, (2) customarily works not more than 20 hours per week,
(3) customarily works not more than 5 months per calendar year, or (4)
is an officer or other manager.
2.9 "Employee" means an individual who is a common-law
employee of any Employer, whether such employee is so employed at the
time the Plan is adopted or becomes so employed subsequent to the
adoption of the Plan.
2.10 "Employer" or "Employers" means any one or all of the
Company and those Subsidiaries which, with the consent of the Board,
have adopted the Plan.
2.11 "Enrollment Date" means the first day of each
calendar quarter and/or such other dates determined by the Committee (in
its discretion and on a uniform and nondiscriminatory basis) from time
to time.
2.12 "Grant Date" means any date on which a Participant is
granted an option under the Plan.
2.13 "Participant" means an Eligible Employee who (a) has
become a Participant in the Plan pursuant to Section 4.1 and (b) has not
ceased to be a Participant pursuant to Section 8 or Section 9.
2.14 "Plan" means the Informix Corporation 1997 Employee
Stock Purchase Plan, as set forth in this instrument and as hereafter
amended from time to time.
2.15 "Purchase Date" means the last day of each March,
June, September and December, or such other specific business days as
may be established by the Committee (in its discretion and on a uniform
and nondiscriminatory basis) from time to time prior to an Enrollment
Date for all options to be granted on such Enrollment Date.
2.16 "Subsidiary" means any corporation in an unbroken
chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain then
owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in
such chain.
SECTION 3
SHARES SUBJECT TO THE PLAN
3.1 Number Available. A maximum of 4,000,000 shares of
Common Stock shall be available for issuance pursuant to the Plan.
Shares sold under the Plan may be newly issued shares or treasury
shares.
3.2 Adjustments. In the event of any reorganization,
recapitalization, stock split, reverse stock split, stock dividend,
combination of shares, merger, consolidation, offering of rights or
other similar change in the capital structure of the Company, the Board
may make such adjustment, if any, as it deems appropriate in the number,
kind and purchase price of the shares available for purchase under the
Plan and in the maximum number of shares subject to any option under the
Plan.
SECTION 4
ENROLLMENT
4.1 Participation. Each Eligible Employee may elect to
become a Participant by enrolling or re-enrolling in the Plan effective
as of any Enrollment Date. In order to enroll, an Eligible Employee
must complete, sign and submit to the Company an enrollment form in such
form as may be specified by the Committee (in its discretion and on a
uniform and nondiscriminatory basis) from time to time. Any enrollment
form received by the Company no later than the business day immediately
preceding an Enrollment Date shall be effective on that Enrollment Date,
provided that the Committee, in its discretion, may (on a uniform and
nondiscriminatory basis) specify an earlier or later deadline for the
submission of enrollment forms. Any Participant whose option expires
and who has not withdrawn from the Plan automatically will be re-
enrolled in the Plan on the Enrollment Date immediately following the
Purchase Date on which his or her option expires.
4.2 Payroll Withholding. On his or her enrollment form,
each Participant must elect to make Plan contributions via payroll
withholding from his or her Compensation. Pursuant to such procedures
as the Committee may specify from time to time, a Participant may elect
to have withholding equal to a whole percentage from 1% to 15% (or such
lesser percentage that the Committee may establish from time to time for
all options to be granted on any Enrollment Date). A Participant may
elect to increase or decrease his or her rate of payroll withholding
(effective as of any Enrollment Date) by submitting a new enrollment
form in accordance with such procedures as may be established by the
Committee from time to time. A Participant may stop his or her payroll
withholding by submitting a new enrollment form in accordance with such
procedures as may be established by the Committee from time to time. In
order to be effective as of a specific date, an enrollment form must be
received by the Company no later than the deadline specified by the
Committee, in its discretion and on a uniform and nondiscriminatory
basis, from time to time. Any Participant who is automatically re-
enrolled in the Plan will be deemed to have elected to continue his or
her contributions at the percentage last elected by the Participant.
SECTION 5
OPTIONS TO PURCHASE COMMON STOCK
5.1 Grant of Option. On each Enrollment Date on which the
Participant enrolls or re-enrolls in the Plan, he or she shall be
granted an option to purchase shares of Common Stock.
5.2 Duration of Option. Each option granted under the
Plan shall expire on the earliest to occur of (a) the completion of the
purchase of shares on the last Purchase Date occurring within 12 months
of the Grant Date of such option, (b) such shorter enrollment period as
may be established by the Committee from time to time prior to an
Enrollment Date for all options to be granted on such Enrollment Date,
or (c) the date on which the Participant ceases to be such for any
reason. Until otherwise determined by the Committee for all options to
be granted on an Enrollment Date, the period referred to in clause (b)
in the preceding sentence shall mean the expiration of 3 months from the
Grant Date.
5.3 Number of Shares Subject to Option. The number of
shares available for purchase by each Participant under the option will
be established by the Committee from time to time prior to an Enrollment
Date for all options to be granted on such Enrollment Date. Until
otherwise determined by the Committee for all options to be granted on
an Enrollment Date, in no event shall the maximum number of shares
purchasable with any option exceed 500 shares. In addition and
notwithstanding the preceding, an option (taken together with all other
options then outstanding under this Plan and under all other similar
employee stock purchase plans of the Employers) shall not give the
Participant the right to purchase shares at a rate which accrues in
excess of $25,000 of fair market value at the applicable Grant Dates of
such shares in any calendar year during which such Participant is
enrolled in the Plan at any time.
5.4 Other Terms and Conditions. Each option shall be
subject to the following additional terms and conditions:
(a) payment for shares purchased under the option shall be
made only through payroll withholding under Section 4.2;
(b) purchase of shares upon exercise of the option will be
accomplished only in accordance with Section 6.1;
(c) the price per share under the option will be determined as
provided in Section 6.1; and
(d) the option in all respects shall be subject to such other
terms and conditions (applied on a uniform and nondiscriminatory basis),
as the Committee shall determine from time to time in its discretion.
SECTION 6
PURCHASE OF SHARES
6.1 Exercise of Option. Subject to Section 6.2, on each
Purchase Date, the funds then credited to each Participant's account
shall be used to purchase whole shares of Common Stock. Any cash
remaining after whole shares of Common Stock have been purchased shall
be carried forward in the Participant's account for the purchase of
shares on the next Purchase Date. The price per Share of the
Shares purchased under any option granted under the Plan shall be
eighty-five percent (85%) of the lower of:
(a) the closing price per Share on the Grant Date for such
option on the NASD National Market System; or
(b) the closing price per Share on the Purchase Date on
the NASD National Market System.
For purposes of this Section 6.1, (1) if a Grant Date is not a business
day, the closing price per Share for such date shall be deemed to be the
closing price per Share on the first business day immediately following
such date, and (2) if a Purchase Date is not a business day, the closing
price per Share for such date shall be deemed to be the closing price
per Share on the last business day immediately preceding such date.
6.2 Delivery of Shares. As directed by the Committee in
its sole discretion, shares purchased on any Purchase Date shall be
delivered directly to the Participant or to a custodian or broker
designated by the Committee to hold shares for the benefit of the
Participants. As determined by the Committee from time to time, such
shares shall be delivered as physical certificates or by means of a book
entry system.
6.3 Exhaustion of Shares. If at any time the shares
available under the Plan are over-enrolled, enrollments shall be reduced
proportionately to eliminate the over-enrollment. Such reduction method
shall be "bottom up", with the result that all option exercises for one
share shall be satisfied first, followed by all exercises for two
shares, and so on, until all available shares have been exhausted. Any
funds that, due to over-enrollment, cannot be applied to the purchase of
whole shares shall be refunded to the Participants (without interest
thereon).
SECTION 7
WITHDRAWAL
7.1 Withdrawal. A Participant may withdraw from the Plan
by submitting a completed enrollment form to the Company. A withdrawal
will be effective only if it is received by the Company by the deadline
specified by the Committee (in its discretion and on a uniform and
nondiscriminatory basis) from time to time. When a withdrawal becomes
effective, the Participant's payroll contributions shall cease and all
amounts then credited to the Participant's account shall be distributed
to him or her (without interest thereon).
SECTION 8
CESSATION OF PARTICIPATION
8.1 Termination of Status as Eligible Employee. A
Participant shall cease to be a Participant immediately upon the
cessation of his or her status as an Eligible Employee (for example,
because of his or her termination of employment from all Employers for
any reason). As soon as practicable after such cessation, the
Participant's payroll contributions shall cease and all amounts then
credited to the Participant's account shall be distributed to him or her
(without interest thereon). If a Participant is on a Company-approved
leave of absence, his or her participation in the Plan shall continue
for so long as he or she remains an Eligible Employee and has not
withdrawn from the Plan pursuant to Section 7.1.
SECTION 9
DESIGNATION OF BENEFICIARY
9.1 Designation. Each Participant may, pursuant to such
uniform and nondiscriminatory procedures as the Committee may specify
from time to time, designate one or more Beneficiaries to receive any
amounts credited to the Participant's account at the time of his or her
death. Notwithstanding any contrary provision of this Section 9,
Sections 9.1 and 9.2 shall be operative only after (and for so long as)
the Committee determines (on a uniform and nondiscriminatory basis) to
permit the designation of Beneficiaries.
9.2 Changes. A Participant may designate different
Beneficiaries (or may revoke a prior Beneficiary designation) at any
time by delivering a new designation (or revocation of a prior
designation) in like manner. Any designation or revocation shall be
effective only if it is received by the Committee. However, when so
received, the designation or revocation shall be effective as of the
date the designation or revocation is executed (whether or not the
Participant still is living), but without prejudice to the Committee on
account of any payment made before the change is recorded. The last
effective designation received by the Committee shall supersede all
prior designations.
9.3 Failed Designations. If a Participant dies without
having effectively designated a Beneficiary, or if no Beneficiary
survives the Participant, the Participant's Account shall be payable to
his or her estate.
SECTION 10
ADMINISTRATION
10.1 Plan Administrator. The Plan shall be administered
by the Committee. The Committee shall have the authority to control and
manage the operation and administration of the Plan.
10.2 Actions by Committee. Each decision of a majority of
the members of the Committee then in office shall constitute the final
and binding act of the Committee. The Committee may act with or without
a meeting being called or held and shall keep minutes of all meetings
held and a record of all actions taken by written consent.
10.3 Powers of Committee. The Committee shall have all
powers and discretion necessary or appropriate to supervise the
administration of the Plan and to control its operation in accordance
with its terms, including, but not by way of limitation, the following
discretionary powers:
(a) To interpret and determine the meaning and validity of
the provisions of the Plan and the options and to determine any question
arising under, or in connection with, the administration, operation or
validity of the Plan or the options;
(b) To determine any and all considerations affecting the
eligibility of any employee to become a Participant or to remain a
Participant in the Plan;
(c) To cause an account or accounts to be maintained for
each Participant;
(d) To determine the time or times when, and the number of
shares for which, options shall be granted;
(e) To establish and revise an accounting method or
formula for the Plan;
(f) To designate a custodian or broker to receive shares
purchased under the Plan and to determine the manner and form in which
shares are to be delivered to the designated custodian or broker;
(g) To determine the status and rights of Participants and
their Beneficiaries or estates;
(h) To employ such brokers, counsel, agents and advisers,
and to obtain such broker, legal, clerical and other services, as it may
deem necessary or appropriate in carrying out the provisions of the
Plan;
(i) To establish, from time to time, rules for the
performance of its powers and duties and for the administration of the
Plan;
(j) To adopt such procedures and subplans as are necessary
or appropriate to permit participation in the Plan by employees who are
foreign nationals or employed outside of the United States; and
(k) To delegate to any one or more of its members or to
any other person, severally or jointly, the authority to perform for and
on behalf of the Committee one or more of the functions of the Committee
under the Plan.
10.4 Decisions of Committee. All actions,
interpretations, and decisions of the Committee shall be conclusive and
binding on all persons, and shall be given the maximum possible
deference allowed by law.
10.5 Administrative Expenses. All expenses incurred in
the administration of the Plan by the Committee, or otherwise, including
legal fees and expenses, shall be paid and borne by the Employers,
except any stamp duties or transfer taxes applicable to the purchase of
shares may be charged to the account of each Participant. Any brokerage
fees for the purchase of shares by a Participant shall be paid by the
Company, but fees and taxes (including brokerage fees) for the transfer,
sale or resale of shares by a Participant, or the issuance of physical
share certificates, shall be borne solely by the Participant.
10.6 Eligibility to Participate. No member of the
Committee who is also an employee of an Employer shall be excluded from
participating in the Plan if otherwise eligible, but he or she shall not
be entitled, as a member of the Committee, to act or pass upon any
matters pertaining specifically to his or her own account under the
Plan.
10.7 Indemnification. Each of the Employers shall, and
hereby does, indemnify and hold harmless the members of the Committee
and the Board, from and against any and all losses, claims, damages or
liabilities (including attorneys' fees and amounts paid, with the
approval of the Board, in settlement of any claim) arising out of or
resulting from the implementation of a duty, act or decision with
respect to the Plan, so long as such duty, act or decision does not
involve gross negligence or willful misconduct on the part of any such
individual.
SECTION 11
AMENDMENT, TERMINATION, AND DURATION
11.1 Amendment, Suspension, or Termination. The Board, in
its sole discretion, may amend or terminate the Plan, or any part
thereof, at any time and for any reason. If the Plan is terminated, the
Board, in its discretion, may elect to terminate all outstanding options
either immediately or upon completion of the purchase of shares on the
next Purchase Date, or may elect to permit options to expire in
accordance with their terms (and participation to continue through such
expiration dates). If the options are terminated prior to expiration,
all amounts then credited to Participants' accounts which have not been
used to purchase shares shall be returned to the Participants (without
interest thereon) as soon as administratively practicable.
11.2 Duration of the Plan. The Plan shall commence on the
date specified herein, and subject to Section 11.1 (regarding the
Board's right to amend or terminate the Plan), shall remain in effect
thereafter.
SECTION 12
GENERAL PROVISIONS
12.1 Participation by Subsidiaries. One or more
Subsidiaries of the Company may become participating Employers by
adopting the Plan and obtaining approval for such adoption from the
Board. By adopting the Plan, a Subsidiary shall be deemed to agree to
all of its terms, including (but not limited to) the provisions granting
exclusive authority (a) to the Board to amend the Plan, and (b) to the
Committee to administer and interpret the Plan. An Employer may
terminate its participation in the Plan at any time. The liabilities
incurred under the Plan to the Participants employed by each Employer
shall be solely the liabilities of that Employer, and no other Employer
shall be liable for benefits accrued by a Participant during any period
when he or she was not employed by such Employer.
12.2 Inalienability. In no event may either a
Participant, a former Participant or his or her Beneficiary, spouse or
estate sell, transfer, anticipate, assign, hypothecate, or otherwise
dispose of any right or interest under the Plan; and such rights and
interests shall not at any time be subject to the claims of creditors
nor be liable to attachment, execution or other legal process.
Accordingly, for example, a Participant's interest in the Plan is not
transferable pursuant to a domestic relations order.
12.3 Severability. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan, and the
Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
12.4 Requirements of Law. The granting of options and the
issuance of shares shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
securities exchanges as the Committee may determine are necessary or
appropriate.
12.5 Compliance with Rule 16b-3. Any transactions under
this Plan with respect to officers (as defined in Rule 16a-1 promulgated
under the 1934 Act) are intended to comply with all applicable
conditions of Rule 16b-3. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the
Committee. Notwithstanding any contrary provision of the Plan, if the
Committee specifically determines that compliance with Rule 16b-3 no
longer is required, all references in the Plan to Rule 16b-3 shall be
null and void.
12.6 No Enlargement of Employment Rights. Neither the
establishment or maintenance of the Plan, the granting of options, the
purchase of shares, nor any action of any Employer or the Committee,
shall be held or construed to confer upon any individual any right to be
continued as an employee of the Employer nor, upon dismissal, any right
or interest in any specific assets of the Employers other than as
provided in the Plan. Each Employer expressly reserves the right to
discharge any employee at any time, with or without cause.
12.7 Apportionment of Costs and Duties. All acts required
of the Employers under the Plan may be performed by the Company for
itself and its Subsidiaries, and the costs of the Plan may be equitably
apportioned by the Committee among the Company and the other Employers.
Whenever an Employer is permitted or required under the terms of the
Plan to do or perform any act, matter or thing, it shall be done and
performed by any officer or employee of the Employers who is thereunto
duly authorized by the Employers.
12.8 Construction and Applicable Law. The Plan is
intended to qualify as an "employee stock purchase plan" within the
meaning of Section 423(b) of the Code. Any provision of the Plan which
is inconsistent with Section 423(b) of the Code shall, without further
act or amendment by the Company or the Committee, be reformed to comply
with the requirements of Section 423(b). The provisions of the Plan
shall be construed, administered and enforced in accordance with such
Section and with the laws of the State of California (excluding
California's conflict of laws provisions).
12.9 Captions. The captions contained in and the table of
contents prefixed to the Plan are inserted only as a matter of
convenience, and in no way define, limit, enlarge or describe the scope
or intent of the Plan nor in any way shall affect the construction of
any provision of the Plan.
EXECUTION
IN WITNESS WHEREOF, Informix Corporation, by its duly authorized
officer, has executed the Plan on the date indicated below.
INFORMIX CORPORATION
By: /s/ Phillip E. White
Name: Phillip E White
Title: Chairman of the Board,
President and Chief
Executive Officer
Dated: May 22, 1997
Approved by the stockholders:
May 22, 1997
EXHIBIT 5
July 16, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Informix Corporation
1997 Employee Stock Purchase Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
As legal counsel for Informix Corporation, a Delaware corporation
(the "Company"), I am rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to
4,000,000 shares of the Company's common stock, $0.01 par value
("Common Stock"), which may be issued pursuant to the Company's
1997 Employee Stock Purchase Plan.
I have examined all instruments, documents and records which I
deemed relevant and necessary for the basis of my opinion
hereinafter expressed. In such examination, I have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to me as originals and the conformity to the originals of
all documents submitted to me as copies.
Based on such examination, I am of the opinion that the 4,000,000
shares of Common Stock are duly authorized shares of the Company's
Common Stock, and, when issued against payment of the purchase
price therefor, will be validly issued, fully paid and non-
assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of my name
wherever it appears in said registration Statement, including the
prospectus constituting a part thereof, as originally filed or
subsequently amended.
Respectfully submitted,
/s/ David H. Stanley
David H. Stanley
Vice President,
Legal and Corporate Services,
General Counsel and Secretary
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-8) and related Prospectus pertaining
to the 1997 Employee Stock Purchase Plan of Informix Corporation and to
the incorporation by reference therein of our report dated February 3,
1997, 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, 1996, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
San Jose, California
July 11, 1997
