UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM 8-K

 


 

CURRENT REPORT

Pursuant To Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 6, 2015

 


 

INFORMATICA CORPORATION

(Exact Name of Registrant as Specified in Charter)

 


 

Delaware

 

0-25871

 

77-0333710

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(I.R.S. Employer
Identification No.)

 

2100 Seaport Boulevard

Redwood City, California 94063

(Address of Principal Executive Offices and Zip Code)

 

(650) 385-5000

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o                Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o                Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o                Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o                Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Introductory Note

 

On August 6, 2015, pursuant to the terms of an Agreement and Plan of Merger (as may be amended, supplement or modified, the “Agreement”), dated as of April 6, 2015, by and among Ithaca Holdco 2 LLC, a Delaware limited liability company (f/k/a Italics Inc., “Newco”), Ithaca Merger Sub LLC, a Delaware limited liability company (f/k/a Italics Merger Sub Inc.) and wholly-owned subsidiary of Newco (“Merger Sub”) and Informatica Corporation, a Delaware corporation (the “Company”), Merger Sub was merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Newco. As of the effective time of the Merger (the “Effective Time”), the Company became wholly-owned by Newco.  Capitalized terms not defined herein have the meanings ascribed to them in the Merger Agreement, a copy of which is filed as Exhibit 2.1 to the Company’s Form 8-K filed April 7, 2015.

 

Item 1.01.    Entry into a Material Definitive Agreement.

 

7.125% Senior Notes due 2023

 

In connection with the Merger, Merger Sub issued an aggregate principal amount of $650,000,000 of its 7.125% Senior Notes due 2023 (the “Notes”), pursuant to the terms and conditions of an indenture dated as of June 16, 2015 (the “Initial Indenture”) between Merger Sub and Deutsche Bank Trust Company Americas, as the Trustee (the “Trustee). In connection with the closing of the Merger, pursuant to a supplemental indenture dated as of August 6, 2015 (the “Supplemental Indenture,” and together with the Initial Indenture, the “Indenture”) among the Company, the guarantors party thereto and the Trustee, the Company assumed all of Merger Sub’s obligations under the Notes and the Initial Indenture.

 

The Notes are, and will be, fully and unconditionally guaranteed, joint and severally, on a senior unsecured basis by each of the Company’s subsidiaries and parent entities that guarantee the new credit facilities or certain other indebtedness.

 

The Notes are general unsecured obligations of the Company and rank pari passu in right of payment with all existing and future indebtedness of the Company, other than its subordinated obligations. The Notes bear interest from June 16, 2015 at an annual rate of 7.125% per annum, payable semi-annually on each January 15 and July 15, commencing on January 15, 2016. The Notes will mature on July 15, 2023. The Indenture includes customary covenants and events of default.

 

Credit Agreement

 

On August 6, 2015, in connection with the closing of the Merger, the Company entered into new credit facilities with a syndicate of financial institutions led by Bank of America, N.A., as administrative agent and collateral agent (the “Agent”). The new credit facilities consist of a $1,710.0 million dollar term loan facility and a €250.0 million euro term loan facility, each maturing August 6, 2022 and a $150.0 million revolving facility that matures August 6, 2020. Certain subsidiaries and parent entities of the Company guarantee the new credit facilities. All obligations under the new credit facilities and the related guarantees are secured by a perfected first priority lien or security interest in substantially all of the Company’s and the guarantors’ tangible and intangible assets.

 

The new credit facilities also provide for a swingline subfacility of $15.0 million, a letter of credit facility of $30.0 million and an uncommitted incremental facility in an amount not to exceed the sum of all voluntary prepayments under the new credit facilities, subject to certain exceptions, plus an amount which does not cause the total net first lien leverage ratio to exceed 5.00 to 1.00, subject to certain conditions. The term loan and revolver borrowings bear interest at a rate per annum equal to an applicable margin, plus, at the Company’s option, either (a) a base rate, (b) a LIBOR rate for the applicable currency and (c) solely with respect to loans under the revolving facility denominated in an alternative currency, an alternate currency rate, subject to interest rate floors for the term loan facilities. In addition to paying interest on outstanding principal under the revolving facility, the Company is required to pay customary commitment and letter of credit fees. The new credit facilities also include customary repayment and prepayment provisions.

 

The new credit facilities contain customary affirmative and negative covenants and events of default, and the new revolving facility contains a maximum total first lien net leverage ratio, which will be tested quarterly if outstanding revolving loans, swingline loans and letters of credit (in excess of $10 million) exceed 30% of the total commitments under the revolving facility on the last day of any quarter.

 

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Item 2.01.    Completion of Acquisition or Disposition of Assets.

 

The information set forth in the Introductory Note and Items 3.03, 5.01 and 5.03 is incorporated herein by reference.

 

At the Effective Time, each share (a “Share”) of common stock, par value $0.001 per share, of the Company (the “Common Stock”) issued and outstanding immediately prior to the Effective Time (other than the Carry-Forward Share, Cancelled Shares and Dissenting Shares) was converted into the right to receive $48.75 in cash, without interest (the “Merger Consideration”), less any applicable withholding taxes, whereupon all such shares were automatically canceled upon the conversion thereof and ceased to exist.

 

Each stock option outstanding immediately prior to the Effective Time, whether vested or unvested, was converted into the right to receive cash (without interest and net of applicable withholding taxes) in an amount equal to the product of (a) Merger Consideration, minus the applicable exercise price per share of the option, and (b) the number of shares of Common Stock issuable upon exercise of the option, provided that, if the exercise price per share of any such option was equal to or greater than the Merger Consideration, such option was cancelled without any cash payment or other consideration being made in respect thereof. The payment of all Merger Consideration for such options will be subject to withholding for all required taxes.

 

Each Vested RSU was cancelled and converted into a right to receive, an amount in cash, without interest, equal to the product of (x) the Merger Consideration multiplied by (y) the total number of Shares subject to such Vested RSUs.  The payment of Merger Consideration for such Vested RSUs will be subject to withholding (pursuant to net share issuance and withholding) for all required taxes.

 

Each award covering any Rollover RSUs was assumed and converted into a right to receive an amount in cash, without interest, equal to the product of (x) the Merger Consideration multiplied by (y) the total number of Shares subject to such Rollover RSUs.  The Merger Consideration paid for such Rollover RSUs, subject to the holder’s continued employment with Newco or its affiliates (including the Surviving Corporation) through each vesting date underlying the applicable award accelerated by twelve months (the “Adjusted Vesting Date”), vest on the applicable Adjusted Vesting Date and the vested portion of the such award will be paid to the holder of such award in accordance with the terms of the applicable plan and/or applicable agreements governing the Rollover RSU. The awards will otherwise retain the same terms and conditions as contained in the original Rollover RSU.

 

With respect to PSUs that were outstanding as of immediately prior to the Effective Time, the number of Shares subject to the applicable PSU were determined as follows: (x) if the performance period had already been completed, the number of Shares subject to the applicable PSU were based on actual performance during the completed performance period or (y) if the applicable performance period had not been completed, all performance goals were deemed achieved at one hundred percent (100%) of the applicable target levels, provided that if the applicable plan and/or any applicable agreements governing the PSUs specified that a greater number of Shares subject to the PSUs otherwise would vest on or prior to the Effective Time, then the terms of the applicable plan and/or any applicable agreements governing such PSU controlled.  PSUs outstanding as of the Effective Time will vest and settle as set forth below.

 

Each Vested PSU was cancelled and converted into, and became a right to receive, an amount in cash, without interest, equal to the product of (x) the Merger Consideration multiplied by (y) the total number of Shares subject to such PSUs.  The Merger Consideration paid for such Vested PSUs will be subject to withholding (pursuant to net share issuance and withholding) for all required taxes.

 

Each Rollover PSU was assumed and converted into a right to receive an amount in cash, without interest, equal to the product of (x) the Merger Consideration multiplied by (y) the total number of Shares subject to such Rollover PSU.  Such cash amounts, subject to the holder’s continued employment with Newco or its affiliates (including the Surviving Corporation) through the applicable Adjusted Vesting Dates relating to the underlying Rollover PSU, will vest on the applicable Adjusted Vesting Dates and the vested portion of such cash amounts will be paid to the holder of such Rollover PSU in accordance with the terms of the applicable plan and/or applicable agreements governing the Rollover PSU.  The awards will otherwise retain the same terms and conditions as contained in the original Rollover PSU.

 

The foregoing summary is not complete and is qualified in its entirety by reference to the full text of the Agreement, which is attached as Exhibit 2.1 to the Company’s Form 8-K filed April 7, 2015 and is incorporated herein by reference.

 

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Item 2.03.      Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth in Item 1.01 is incorporated herein by reference.

 

Item 3.01.     Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

 

The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.

 

On August 6, 2015, in connection with the completion of the Merger, the Company notified The NASDAQ Global Select Market (“NASDAQ”) of the completion of the Merger, and requested that trading in the Common Stock be suspended and that the Common Stock be withdrawn from listing on NASDAQ. The Company also requested that NASDAQ file a delisting application on Form 25 with the Securities and Exchange Commission (the “SEC”) to report the delisting of the Common Stock from NASDAQ. The Common Stock will cease to trade on the NASDAQ at the close of trading on August 6, 2015.   By operation of law, the delisting will be effective 10 days following the filing of the Form 25.

 

The Company intends to file with the SEC a certification and notice of termination on Form 15 with respect to the Common Stock, requesting that the Common Stock be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the reporting obligations of the Company with respect to the Common Stock under Sections 13 and 15(d) of the Exchange Act be suspended.

 

Item 3.03.   Material Modification to Rights of Security Holders.

 

The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.

 

As a result of the Merger, each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than certain excluded shares and Dissenting Shares) was automatically canceled and ceased to exist, and was converted into the right to receive the Merger Consideration, less any applicable withholding taxes. Accordingly, at the Effective Time, the Company’s stockholders immediately before the Effective Time ceased to have any rights in the Company as stockholders, other than their right to receive the Merger Consideration or, with respect to stockholders holding Dissenting Shares, appraisal rights.

 

Item 5.01.    Changes in Control of Registrant.

 

The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.

 

In connection with the Merger and at the Effective Time, a change of control of the Company occurred and the Company became a wholly-owned subsidiary of Newco.

 

Item 5.02.    Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement.

 

The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.

 

Effective upon completion of the Merger, the following persons, who were the directors of Merger Sub, became directors of the Company: Erik Levy, Gil Nayot, Dipan Patel, Brian Ruder. As a result of the Merger, Sohaib Abbasi, Mark A. Bertelsen, Amy Chang, Mark Garrett, Gerald Held, Hilarie Koplow-McAdams, Charles J. Robel, A. Brooke Seawell, and Geoffrey W. Squire are no longer directors of the Company.

 

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The following executive officers of the Company immediately prior to the effective time of the Merger will continue to be executive officers of the Company: Michael Berry, Anil Chakravarthy, Charles Race, and Jo Stoner.  Immediately following the Merger, the Company announced that Sohaib Abbasi, Earl Fry, Margaret Breya, and Ivan Chong were not continuing as executive officers of the Company.  Mr. Abbasi will become chairman of the board of Ithaca Holdco Inc., a parent company of Newco.

 

The Company also announced the appointment of Mr. Chakravarthy as acting chief executive officer of the Company, effective immediately.  Mr. Chakravarthy, 47, joined the Company in September 2013 as our executive vice president and chief product officer. Prior to joining the Company, Mr. Chakravarthy held various positions at Symantec Corporation from May 2004 to September 2013, most recently as Executive Vice President of Information Security. Prior to Symantec, Mr. Chakravarthy also led product management for enterprise security services at VeriSign from December 2001 to May 2004.  Mr. Chakravarthy received a Bachelor of Technology in Computer Science and Engineering from the Institute of Technology, Varanasi, India, and received his M.S. and Ph.D. from the Massachusetts Institute of Technology.

 

Item 5.03.    Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

The information set forth in the Introductory Note and Item 2.01 is incorporated herein by reference.

 

In connection with the consummation of the Merger, the Company’s Certificate of Incorporation and Bylaws were amended, effective August 6, 2015. Copies of the Company’s Amended Certificate of Incorporation and Bylaws are attached as Exhibits 3.1 and 3.2, respectively, to this report and are incorporated herein by reference.  Immediately following the Effective Time, the Company will convert to a Delaware limited liability company.

 

Item 8.01.    Other Events.

 

On August 6, 2015, the Company issued a press release announcing the completion of the Merger. A copy of that press release is attached as Exhibit 99.1 to this report and is incorporated herein by reference.

 

Item 9.01.    Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
Number

 

Description

 

 

 

2.1

 

Agreement and Plan of Merger, dated as of April 6, 2015, by and among Ithaca Holdco 2 LLC (f/k/a Italics Inc.), Ithaca Merger Sub LLC (f/k/a Italics Merger Sub Inc.), and Informatica Corporation (incorporated by reference to Exhibit 2.1 of Informatica Corporation’s Current Report on Form 8-K filed on April 7, 2015).

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation of Informatica Corporation

 

 

 

3.2

 

Amended and Restated Bylaws of Informatica Corporation

 

 

 

99.1

 

Press Release, dated August 6, 2015, announcing the closing of the Merger.

 

5



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

Dated: August 6, 2015

INFORMATICA CORPORATION.

 

 

 

 

 

 

 

 

 

By:

/s/ Michael Berry

 

 

Michael Berry

 

 

EVP and Chief Financial Officer

 

6



 

Exhibit Index

 

Exhibit
Number

 

Description

 

 

 

2.1

 

Agreement and Plan of Merger, dated as of April 6, 2015, by and among Ithaca Holdco 2 LLC (f/k/a Italics Inc.), Ithaca Merger Sub LLC (f/k/a Italics Merger Sub Inc.), and Informatica Corporation (incorporated by reference to Exhibit 2.1 of Informatica Corporation’s Current Report on Form 8-K filed on April 7, 2015.)

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation of Informatica Corporation.

 

 

 

3.2

 

Amended and Restated Bylaws of Informatica Corporation.

 

 

 

99.1

 

Press Release, dated August 6, 2015, announcing the closing of the Merger.

 

7




Exhibit 3.1

 

Execution Version

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

INFORMATICA CORPORATION

 

THE UNDERSIGNED, for the purpose of amending and restating the certificate of incorporation of the Corporation, pursuant to the provisions of the General Corporation Law of the State of Delaware (“DGCL”), does hereby certify pursuant to Section 103(a)(2) of the DGCL as follows:

 

The original name of the Corporation was Informatica Corporation-Delaware. The date of filing of the Corporation’s original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 4, 1999.

 

FIRST:                                                        The name of the corporation is Informatica Corporation (the “Corporation”).

 

SECOND:                                      The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.  The name of the registered agent of the Corporation in the State of Delaware at such address is The Corporation Trust Company.

 

THIRD:                                                   The purpose of the Corporation is to engage in any and all lawful acts or activities for which corporations may be organized under the DGCL, as from time to time amended.

 

FOURTH:                                        The aggregate number of shares the Corporation shall have the authority to issue is 2 shares of which: 1 shall be designated Class A common stock, par value $0.01 per share (“Class A Common Stock”); and 1 shall be designated Class B common stock, par value $0.01 per share (“Class B Common Stock”).  The Class A Common Stock and Class B Common Stock are hereinafter sometimes collectively referred to herein as “Common Stock”.

 

(a)         Class A Common Stock.

 

(i)                                   Each share of Class A Common Stock shall be entitled to one vote on matters to be voted on by the stockholders of the Corporation; provided, however, that no share of Class A Common Stock shall be entitled to any vote with respect to the election or removal of directors of the Corporation.

 

(ii)                                The holders of Class A Common Stock shall be entitled to dividends at such time and in such amounts as, if and when declared by the board of directors of the Corporation from time to time out of funds legally available therefor.

 

(iii)                             Subject to the prior payment to holders of Class B Common Stock as set forth in paragraph (b)(iii) below, the holders of Class A Common Stock shall be entitled to participate pro rata at the same rate per share of such stock in all distributions to the holders of Class A Common Stock upon the occurrence of the voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 



 

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(b)         Class B Common Stock.

 

(i)                                   No share of Class B Common Stock shall be entitled to any vote on matters to be voted on by the stockholders of the Corporation; provided, however, that each share of Class B Common Stock shall be entitled to one vote with respect to the election or removal of directors of the Corporation.

 

(ii)                                The holders of Class B Common Stock shall be entitled to dividends at such time and in such amounts as, if and when declared by the board of directors of the Corporation from time to time out of funds legally available therefor.

 

(iii)                             The holders of Class B Common Stock shall in no event be entitled to participate in any distributions to the holders of any class of capital stock of the Corporation upon the occurrence of the voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation; provided, however, that upon such occurrence the holders of Class B Common Stock shall be entitled to receive $48.75 per share of Class B Common Stock (subject to adjustment for any stock splits, combinations or similar events) plus all accrued and unpaid dividends thereon (if any).

 

(c)          Authorized Shares. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares of Common Stock then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

FIFTH:                                                       In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in this Certificate of Incorporation, bylaws of the Corporation may be adopted, amended or repealed by a majority of the board of directors of the Corporation (“Board of Directors”), but any bylaws adopted by the Board of Directors may be amended or repealed by the stockholders entitled to vote thereon.  Election of directors need not be by written ballot.

 

SIXTH:                                                     In addition to the powers and authority herein before or by statute expressly conferred upon than, the Board of Directors is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation and the bylaws of the Corporation.

 

SEVENTH:                                 The number of directors of the Corporation shall be fixed from time to time in the manner provided in the bylaws or any amendment thereof adopted by the Board of Directors.

 

EIGHTH:                                          (a) A director of the Corporation shall not be personally liable either to the Corporation or to any stockholder thereof for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions that are not, in good faith or that involve intentional misconduct or knowing violation of the law, (iii) for any matter in respect of which such director shall be liable under Section 174 of Title 8 of the DGCL or any amendment thereto or successor provision thereto or (iv) for any transaction from which the director shall have derived an

 



 

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improper personal benefit.  Neither amendment nor repeal of this paragraph (a) nor the adoption of any provision of this Certificate of Incorporation inconsistent with this paragraph (a) shall eliminate or reduce the effect of this paragraph (a) in respect of any matter occurring, or any cause of action, suit or claim that, but for this paragraph (a) of this Article EIGHTH, would accrue or arise, prior to such amendment, repeal or adoption of san inconsistent provision,

 

(b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such” person in connection with such action, suit or proceeding to the full extent permitted by law, and the Corporation may adopt bylaws or enter into agreements with any such person for the purpose of providing for such indemnification.

 

NINTH: The Corporation hereby elects not to be governed by Section 203 of the DGCL.

 



 

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of the Corporation on this 6th day of August, 2015.

 

 

 

By:

/s/Michael Berry

 

 

Name: Michael Berry

 

 

Title: Executive Vice President and Chief Financial Officer

 




Exhibit 3.2

 

Execution Version

 

AMENDED AND RESTATED BYLAWS OF

 

Informatica Corporation

 

Effective as of August 6, 2015

 

ARTICLE I

 

Offices

 

SECTION 1.                            Registered Office.  The registered office of the Corporation within the State of Delaware shall be The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

 

SECTION 2.                            Other Offices. The Corporation may also have an office or offices other than said registered office at such place or places, either within or without the State of Delaware, as the Board of Directors shall from time to time determine or the business of the Corporation may require.

 

ARTICLE II

 

Stockholders

 

SECTION 1.                            Annual Meeting.  An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen (13) months of the last annual meeting of stockholders or, if no such meeting has been held, the date of incorporation.

 

SECTION 2.                            Special Meetings.  Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors or the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix.

 

SECTION 3.                            Notice of Meetings. Notice of the place, if any, date, and time of all meetings of the stockholders and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation).

 

When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, notice of the place, if

 



 

any, date, and time of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith.  At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.

 

SECTION 4.                            Quorum.  At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.  Where a separate vote by a class or classes or series is required, a majority of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter.

 

If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, if any, date, or time.

 

SECTION 5.                            Organization.  Such person as the Board of Directors may have designated or, in the absence of such a person, the President of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting.  In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints.

 

SECTION 6.                            Conduct of Business. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order.  The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.

 

SECTION 7.                            Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting.  Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this paragraph may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

 

The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof.  The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability.  Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.

 

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All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast affirmatively or negatively.

 

SECTION 8.                            Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided by law.

 

The stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.  This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

 

SECTION 9.                            Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.  Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.

 

Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date the earliest dated consent is delivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section.  A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section to the extent permitted by law.  Any such consent shall be delivered in accordance with Section 228(d)(1) of the Delaware General Corporation Law.

 

Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

 

ARTICLE III

 

Board of Directors

 

SECTION 1.                            Number and Term of Office. The number of directors constituting the Board of Directors shall initially be four (4).  Thereafter, the number of directors may be fixed, from time to time, by the affirmative vote of a majority of the entire Board of Directors or by action of the stockholders of the Corporation.  Any decrease in the number of directors shall be effective at the time of the next succeeding annual meeting of stockholders unless there shall be vacancies in the Board of

 

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Directors, in which case such decrease may become effective at any time prior to the next succeeding annual meeting to the extent of the number of such vacancies.  Directors need not be stockholders.  Except as otherwise provided by statute or these Bylaws, the directors (other than members of the initial Board of Directors) shall be elected at the annual meeting of stockholders.  Each director shall hold office until his successor shall have been elected and qualified, or until his death, or until he shall have resigned, or have been removed, as hereinafter provided in these Bylaws.

 

SECTION 2.                            Removal. Any director may be removed, either with or without cause, at any time, by the holders of a majority of the voting power of the issued and outstanding capital stock of the Corporation entitled to vote at an election of directors.

 

SECTION 3.                            Resignation. Any director of the Corporation may resign at any time by giving written notice of his resignation to the Corporation.  Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt.  Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

SECTION 4.                            Vacancies. Any vacancy in the Board of Directors, whether arising from death, resignation, removal (with or without cause), an increase in the number of directors or any other cause, may be filled by the vote of a majority of the directors then in office, though less than a quorum, or by the sole remaining director or by the stockholders at the next annual meeting thereof or at a special meeting thereof.  Each director so elected shall hold office until his successor shall have been elected and qualified.

 

SECTION 5.                            Regular Meetings. Regular meetings of the Board of Directors may be called on at least three (3) Business Days’ (as defined in the Sarl Shareholders Agreement (defined below))  notice to each member of the Board of Directors either personally, by telephone, by mail, by facsimile transmission, by electronic mail or by any other means of communication reasonably calculated to give notice, at such times and at such places as shall from time to time be determined by the Board of Directors or the chairman thereof, as applicable. The Board of Directors may validly debate and take decisions at a regular meeting of the Board of Directors without complying with all or any of the convening requirements and formalities if all the members of the Board of Directors have waived the relevant convening requirements and formalities either in writing or, at the relevant meeting, in person or by an authorized representative.

 

SECTION 6.                            Special Meetings. Any member of the Board of Directors may call a special meeting of the Board of Directors on not less than three (3) Business Days’ (as defined in the Sarl Shareholders Agreement (defined below)) notice to each other member of the Board of Directors, either personally, by telephone, by mail, by facsimile transmission, by electronic mail or by any other means of communication reasonably calculated to give notice. The Board of Directors may validly debate and take decisions at a special meeting of the Board of Directors without complying with all or any of the convening requirements and formalities if all the members of the Board of Directors have waived the relevant convening requirements and formalities either in writing or, at the relevant meeting, in person or by an authorized representative.

 

SECTION 7.                            Quorum. At any meeting of the Board of Directors, a majority of the total number of the whole Board of Directors, which majority must include all of the directors nominated for election by each of the Canada Pension Plan Investment Board (“CPPIB”) and EvomLux S.à r.l. (“Evomlux”), or their permitted successors and assigns in accordance with the Shareholders Agreement

 

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(as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof) of Ithacalux GP S.á r.l (“Sarl Shareholders Agreement”), shall constitute a quorum for all purposes; provided that in the event a duly called meeting is adjourned two consecutive times for lack of a quorum for which directors receive proper notice due to the absence of the same directors, the absence of those directors shall not prevent a quorum at a third (or subsequent) reconvened meeting provided that a majority of the directors are in attendance.  If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.

 

SECTION 8.                            Participation in Meetings By Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.

 

SECTION 9.                            Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law.  Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

SECTION 10.                     Compensation of Directors. Directors shall be reimbursed by Ithacalux Topco S.C.A. (“SCA Holdco”) for all reasonable out-of-pocket expenses incurred by them in connection with their service on the Board of Directors or any committee thereof (including all reasonable travel and accommodation expenses).  No Director who is an officer or employee of Permira Advisers Ltd. or CPPIB nor any person serving as an observer on the Board of Directors shall receive any compensation (other than reimbursement of out-of-pocket expenses incurred in connection with their service on the Board of Directors or any committee thereof or attendance at meetings of the Board of Directors or committee thereof) and/or equity grants as consideration for his or her service on the Board of Directors, without the prior written consent of a majority of Shares (as defined in the Sarl Shareholders Agreement held by the Designated Shareholders (as defined in the Shareholders Agreement (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof) of SCA Holdco).

 

ARTICLE IV

 

Committees

 

SECTION 1.                            Committees of the Board of Directors. The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.

 

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SECTION 2.                            Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law.  Adequate provision shall be made for notice to members of all meetings; a majority of the members of such committee shall constitute a quorum, which majority must include at least the directors nominated to the Board of Directors by each of Evomlux and CPPIB, to the extent Evomlux and CPPIB have nominated a director to the Board of Directors and such director is appointed to serve on such committee; and all matters shall be determined by a majority vote of the members present; provided that in the event a duly called committee meeting is adjourned two consecutive times for lack of a quorum for which members receive proper notice due to the absence of the same members, the absence of those members shall not prevent a quorum at a third (or subsequent) reconvened committee meeting provided that a majority of the committee members are in attendance.  Action may be taken by any committee without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of such committee.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Each of Evomlux and CPPIB shall be entitled to appoint at least one of the directors it nominated to the Board of Directors to each committee.

 

ARTICLE V

 

Officers

 

SECTION 1.                            Generally. The officers of the Corporation shall consist of a President, one or more Vice Presidents, a Secretary, a Treasurer and such other officers as may from time to time be appointed by the Board of Directors.  Officers shall be elected by the Board of Directors, which shall consider that subject at its first meeting after every annual meeting of stockholders.  Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal.  Any number of offices may be held by the same person.

 

SECTION 2.                            President. The President shall be the chief executive officer of the Corporation.  Subject to the provisions of these Bylaws and to the direction of the Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors.  He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation.

 

SECTION 3.                            Vice President. Each Vice President shall have such powers and duties as may be delegated to him or her by the Board of Directors.  One (1) Vice President shall be designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President’s absence or disability.

 

SECTION 4.                            Treasurer. The Treasurer shall have the responsibility for maintaining the financial records of the Corporation.  He or she shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the Corporation.  The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe.

 

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SECTION 5.                            Secretary. The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors.  He or she shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe.

 

SECTION 6.                            Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.

 

SECTION 7.                            Removal. Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors.

 

SECTION 8.                            Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President or any officer of the Corporation authorized by the President shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.

 

ARTICLE VI

 

Stock

 

SECTION 1.                            Certificates of Stock. Each holder of stock represented by certificates shall be entitled to a certificate signed by, or in the name of the Corporation by, the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her.  Any or all of the signatures on the certificate may be by facsimile.

 

SECTION 2.                            Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation.  Except where a certificate is issued in accordance with Section 4 of Article VI of these Bylaws, an outstanding certificate, if one has been issued, for the number of shares involved shall be surrendered for cancellation before a new certificate, if any, is issued therefor.

 

SECTION 3.                            Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for such other action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given

 

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or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.

 

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

In order that the Corporation may determine the stockholders entitled to consent to corporate action without a meeting, (including by telegram, cablegram or other electronic transmission as permitted by law), the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted.  If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the Delaware General Corporation Law, the record date shall be the first date on which a consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Article II, Section 9 hereof.  If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by consent of the stockholders without a meeting, the record date for determining stockholders entitled to consent to corporate action without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

SECTION 4.                            Lost, Stolen or Destroyed Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.

 

SECTION 5.                            Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish.

 

ARTICLE VII

 

Notices

 

SECTION 1.                            Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.  Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law.

 

SECTION 2.                            Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person.  Neither the business nor the purpose of any meeting need be specified in such a waiver.

 

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ARTICLE VIII

 

Miscellaneous

 

SECTION 1.                            Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.

 

SECTION 2.                            Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary.  If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.

 

SECTION 3.                            Reliance upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

 

SECTION 4.                            Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors.

 

SECTION 5.                            Time Periods. In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.

 

ARTICLE IX

 

Indemnification of Directors and Officers

 

SECTION 1.                            Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee, or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this ARTICLE IX with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.

 

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SECTION 2.                            Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 1 of this ARTICLE IX, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise.

 

SECTION 3.                            Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this ARTICLE IX is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim.  If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit.  In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law.  Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit.  In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this ARTICLE IX or otherwise shall be on the Corporation.

 

SECTION 4.                            Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this ARTICLE IX shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

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SECTION 5.                            Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

 

SECTION 6.                            Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.

 

SECTION 7.                            Nature of Rights. The rights conferred upon indemnitees in this ARTICLE IX shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.  Any amendment, alteration or repeal of this ARTICLE IX that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.

 

ARTICLE X

 

Amendments

 

These Bylaws may be amended or repealed by the Board of Directors at any meeting or by the stockholders at any meeting.

 

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Exhibit 99.1

 

 

FINAL

 

Contacts:

 

For Informatica:

 

 

Debbie O’Brien

 

Stephanie Wakefield

Informatica Corporation

 

Informatica Corporation

Global Communications

 

Investor Relations

+1 650 385 5735 - office

 

+1 650 385 5261

+1 650 995 6736 - mobile

 

swakefield@informatica.com

dobrien@informatica.com

 

 

 

 

 

For Permira:

 

For CPPIB:

Noemie de Andia

 

May Chong

Head of Communications

 

Director, Corporate Communications

+44 20 7632 1159

 

(416) 868-8657

noemie.deandia@permira.com

 

 

 

Sard Verbinnen & Co

Brooke Gordon / Nathaniel Garnick/ Megan Bouchier

+1 212 687 8080/+1 415 618 8750

 

Informatica Corporation Announces Completion of Acquisition by the Permira Funds and Canada Pension Plan Investment Board

 

Microsoft and Salesforce Ventures Join as Strategic Investors

 

Company Announces CEO Transition

 

Redwood City, Calif. — August 6, 2015 — Informatica Corporation, the world’s number one independent provider of data integration software, today announced the successful completion of its acquisition by a company controlled by the Permira funds and Canada Pension Plan Investment Board (CPPIB). Additionally Informatica announced that Microsoft Corporation and Salesforce Ventures have agreed to become strategic investors in the company alongside the Permira funds and CPPIB. The acquisition is valued at approximately $5.3 billion, with Informatica stockholders receiving $48.75 in cash per share. Informatica’s stock will cease trading on the NASDAQ under the ticker symbol INFA effective today.

 



 

Informatica today also announced leadership changes. Sohaib Abbasi, chairman and former chief executive officer, will continue to serve as chairman of Informatica. Anil Chakravarthy, chief product officer, will now serve as the acting chief executive officer of Informatica, effective immediately. Bruce Chizen, former chief executive officer of Adobe, has joined Informatica as a board member and as a special advisor to Informatica.

 

“The Informatica goal remains to grow into a multi-billion dollar leader in all things data. Now as a private company, with a long view measured in years, not quarters, we will have more flexibility and more time to implement our transformative innovation roadmap and to evolve our business model,” said Sohaib Abbasi, chairman, Informatica. “To lead this exciting next phase, I am pleased that Anil Chakravarthy is assuming his new role of acting CEO. It is my distinct honor to also welcome Bruce Chizen, former CEO of Adobe, to Informatica both as a board member and as a special advisor.  I have every expectation that the best years for Informatica are yet to come.”

 

“It is a privilege to lead the world-class Informatica team in this promising new phase of growth as a private company,” said Anil Chakravarthy, acting chief executive officer, Informatica. “Our transformative innovation roadmap includes four distinct billion-dollar opportunities: cloud integration, next generation big data integration, MDM solutions and data security. And living our customer-first culture, we will evolve our business model to match customers’ preferences for pay-for-use subscription offerings.”

 

“Informatica is a billion-dollar category leader with an outstanding record of innovation, customer success and financial growth under Sohaib’s leadership,” said Brian Ruder, a Permira Partner and Co-Head of the firm’s Technology team. “As a testament to the strength and promise of Informatica’s business, we are thrilled to welcome Microsoft and Salesforce Ventures as investors and are excited to support Informatica as it consolidates its position as one of the top software companies globally.”

 



 

“We are very impressed by the long-term track record of success and product leadership that Informatica has achieved with Sohaib’s guidance over the past 11 years,” said Mark Jenkins, Senior Managing Director & Global Head of Private Investments, CPPIB. “We look forward to working with management, including Anil as acting CEO, to support the Company in its vision to become a multi-billion dollar leader in the broader data integration space.”

 

About Informatica

 

Informatica Corporation (Nasdaq:INFA) is the world’s number one independent provider of data integration software. Organizations around the world rely on Informatica to realize their information potential and drive top business imperatives. Informatica is focused on delivering transformative innovation for the future of all things data. Worldwide, over 5,800 enterprises depend on Informatica to fully leverage their information assets residing on-premise, in the Cloud and on the public internet including across social networks. For more information, call +1 650-385-5000 (1-800-653-3871 in the U.S.), or visit www.informatica.com. Connect with Informatica at http://www.facebook.com/InformaticaCorporation, http://www.linkedin.com/company/informatica and http://twitter.com/InformaticaCorp.

 

About Permira

 

Permira is a global investment firm that finds and backs successful businesses with ambition. Founded in 1985, the firm advises funds with a total committed capital of approximately €25 billion. The Permira funds make long-term investments in companies with the objective of transforming their performance and driving sustainable growth. In the past 30 years, the Permira funds have made over 200 private equity investments in five key sectors: Consumer, Financial Services, Healthcare, Industrials and Technology. Permira employs over 200 people including 120 investment professionals in 14 offices across North America, Europe, the Middle East and Asia. For more information visit:  www.permira.com.

 



 

Permira established itself in North America in 2002 and today has offices in New York and Menlo Park. The Permira funds have a long track record of successfully investing in technology companies around the world including NDS, Genesys, Ancestry.com, TeamViewer, Renaissance Learning, Metalogix, LegalZoom.com, and Teraco. Since 1997, over 33% of the Permira funds’ investments have been in the core sector of Technology.

 

About Canada Pension Plan Investment Board

 

Canada Pension Plan Investment Board (CPPIB) is a professional investment management organization that invests the funds not needed by the Canada Pension Plan (CPP) to pay current benefits on behalf of 18 million contributors and beneficiaries. In order to build a diversified portfolio of CPP assets, CPPIB invests in public equities, private equities, real estate, infrastructure and fixed income instruments. Headquartered in Toronto, with offices in Hong Kong, London, Luxembourg, New York City and São Paulo, CPPIB is governed and managed independently of the Canada Pension Plan and at arm’s length from governments. At March 31, 2015, the CPP Fund totalled C$264.6 billion. For more information about CPPIB, please visit www.cppib.com.

 

About Salesforce Ventures

 

Salesforce Ventures—Salesforce’s corporate investment group—invests in the next generation of enterprise technology to help companies connect with their customers in entirely new ways. Portfolio companies receive funding as well as access to the world’s largest cloud ecosystem and the guidance of Salesforce’s innovators and executives. With Salesforce Ventures, portfolio companies can also leverage the expertise of the Salesforce Foundation to incorporate its 1-1-1 model of integrated philanthropy to make giving back part of their business model. Salesforce has invested in more than 100 enterprise cloud startups since 2009. For more information, please visit www.salesforce.com/ventures.

 

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Note: Informatica and Informatica Cloud are trademarks or registered trademarks of Informatica Corporation in the United States and in jurisdictions throughout the world. All other company and product names may be trade names or trademarks of their respective owners.

 


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