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As filed with the Securities and Exchange Commission on July 19, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VERSANT OBJECT TECHNOLOGY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA 94-3079392
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1380 WILLOW ROAD
MENLO PARK, CA 94025
(Address of Principal Executive Offices)
1989 STOCK OPTION PLAN
1996 DIRECTORS STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
1996 EQUITY INCENTIVE PLAN
(Full Title of the Plans)
RICHARD I. KADET
CHIEF FINANCIAL OFFICER
VERSANT OBJECT TECHNOLOGY CORPORATION
1380 WILLOW ROAD
MENLO PARK, CA 94025
(415) 329-7500
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Jeffery L. Donovan, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED PROPOSED AMOUNT OF
TO BE MAXIMUM OFFERING MAXIMUM REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE AGGREGATE OFFERING FEE
PRICE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 1,196,702 (1) $8.00 (2) $9,573,616 (2) $3,302
Common Stock, no par value 452,408 (3) $2.06 (4) $931,960 $322
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares subject to outstanding options under the 1996 Equity Incentive
Plan and the 1996 Directors Stock Option Plan and available for grant as
of July 17, 1996 under the 1996 Equity Incentive Plan and the 1996
Directors Stock Option Plan, and available for issuance as of July 17,
1996 under the 1996 Employee Stock Purchase Plan.
(2) Estimated as of July 17, 1996 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Shares subject to outstanding options as of July 17, 1996 under the 1989
Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
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VERSANT OBJECT TECHNOLOGY CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
that contains audited financial statements for the fiscal year
ended December 31, 1995.
(b) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation (the "Articles") include a
provision that eliminates the liability of the Registrant's directors for
monetary damages to the fullest extent permissible under California law. This
limitation has no effect on a director's liability (i) for acts or omissions
that involve intentional misconduct or a knowing and culpable violation of law,
(ii) for acts or omissions that a director believes to be contrary to the best
interests of the Registrant or its shareholders or that involve the absence of
good faith on the part of the director, (iii) for any transaction from which a
director derived an improper personal benefit, (iv) for acts or omissions that
show a reckless disregard for the director's duty to the Registrant or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of a serious injury to the Registrant or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Registrant or its shareholders, (vi)
under Section 310 of the California Corporations Code (the "California Code")
concerning contracts or transactions between the Registrant and a director or
(vii) under Section 316 of the California Code concerning directors' liability
for improper dividends, loans and guarantees. The provision in the Articles does
not extend to acts or omissions of a director in his capacity as an officer.
Further, the provision will not affect the availability of injunctions and other
equitable remedies available to the Registrant's shareholders for any violation
of a director's fiduciary duty to the Registrant or its shareholders.
The Articles also authorize the Registrant to indemnify its agents (as
defined in Section 317 of the California Code), through bylaw provisions, by
agreement or otherwise, to the fullest extent permitted by law. Pursuant to this
provision, the Registrant's Bylaws provide that the Registrant shall indemnify
and advance expenses to its directors and officers to the fullest extent
permissible under California law, subject to certain exceptions. In addition,
the Registrant, at its discretion, may provide indemnification to persons whom
the Registrant is not obligated to indemnify. The Bylaws also allow the
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Registrant to enter into indemnity agreements with individual directors,
officers, employees and other agents. The Registrant has entered into indemnity
agreements with all of its directors and officers providing the maximum
indemnification permitted by law, subject to certain exceptions. These
agreements, together with the Registrant's Bylaws and Articles, may require the
Registrant, among other things, to indemnify these directors or officers against
certain liabilities that may arise by reason of their status or service as
directors or officers and to advance expenses to them as such expenses are
incurred (provided that they undertake to repay the amount advanced if it is
ultimately determined by a court that they are not entitled to indemnification).
Section 317 of the California Code, the Registrant's Bylaws and the
indemnity agreements make provision for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act. At
present, there is no pending litigation or proceeding involving a director,
officer or employee of the Registrant regarding which indemnification is sought,
nor is the Registrant aware of any threatened litigation that may result in
claims for indemnification. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 Registrant's Amended and Restated Articles of Incorporation,
as amended (incorporated herein by reference to Exhibit 3.01
of the Registrant's Registration Statement on Form SB-2, File
No. 333-4910-LA originally filed with the Commission on May
24, 1996, as subsequently amended on June 18, 1996 and July
16, 1996 (the "Form SB-2")).
4.02 Registrant's Certificate of Amendment of Articles of
Incorporation filed July 2, 1996 (incorporated herein by
reference to Exhibit 3.02 of the Form SB-2).
4.03 Form of Registrant's Amended and Restated Articles of
Incorporation to be filed following the closing of the
Registrant's initial public offering (incorporated herein by
reference to Exhibit 3.03 of the Form SB-2).
4.04 Registrant's Amended and Restated Bylaws adopted June 13,
1996 (incorporated herein by reference to Exhibit 3.05 of the
Form SB-2).
4.05 Registrant's 1989 Stock Option Plan, as amended, and related
documents (incorporated herein by reference to Exhibit 10.01
of the Form SB-2).
4.06 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the
Form SB-2).
4.07 Registrant's 1996 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.03
of the Form SB-2).
4.08 Registrant's 1996 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.04
of the Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
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23.02 Consent of Arthur Anderson LLP, Independent Public
Accountants.
24.01 Power of Attorney (see page 5).
ITEM 9. UNDERTAKINGS.
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;
(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;
(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 (1)(i) and (1)(ii) above
do not apply if 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 Section
15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 bona
fide 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints David Banks and Richard I. Kadet, and
each of them, his or her true and lawful attorneys-in-fact and agents with full
power of substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or her or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
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 this 15th day of
July, 1996.
VERSANT OBJECT TECHNOLOGY CORPORATION
By: /s/ David Banks
---------------------------------
David Banks, President, Chief Executive Officer and
a Director
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ David Banks
- ----------------------------------- President, Chief Executive Officer and July 15, 1996
David Banks a Director
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Richard I. Kadet Vice President Finance and July 15, 1996
- ----------------------------------- Administration, Chief Financial Officer,
Richard I. Kadet Treasurer and Secretary
ADDITIONAL DIRECTORS
/s/ Mark Leslie Chairman of the Board of Directors July 15, 1996
- -----------------------------------
Mark Leslie
</TABLE>
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/s/ Stephen J. Gaal Director July 15, 1996
- -----------------------------------
Stephen J. Gaal
/s/ Soo Boon Koh Director July 15, 1996
- -----------------------------------
Soo Boon Koh
/s/ Lawrence K. Orr Director July 15, 1996
- -----------------------------------
Lawrence K. Orr
/s/ James Simpson Director July 15, 1996
- -----------------------------------
James Simpson
6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Description Page
- ----------- ----------- ------------
<S> <C> <C>
4.01 Registrant's Amended and Restated Articles of Incorporation, as
amended (incorporated herein by reference to Exhibit 3.01 of the
Registrant's Registration Statement on Form SB-2, File No.
333-4910-LA originally filed with the Commission on May 24,
1996, as subsequently amended on June 18, 1996 and July 16, 1996
(the "Form SB-2")).
4.02 Registrant's Certificate of Amendment of Articles of Incorporation
filed July 2, 1996 (incorporated herein by reference to Exhibit
3.02 of the Form SB-2).
4.03 Form of Registrant's Amended and Restated Articles of
Incorporation to be filed following the closing of the
Registrant's initial public offering (incorporated herein by
reference to Exhibit 3.03 of the Form SB-2).
4.04 Registrant's Amended and Restated Bylaws adopted June 13, 1996
(incorporated herein by reference to Exhibit 3.05 of the Form
SB-2).
4.05 Registrant's 1989 Stock Option Plan, as amended, and
related documents (incorporated herein by reference to
Exhibit 10.01 of the Form SB-2).
4.06 Registrant's 1996 Equity Incentive Plan and related
documents (incorporated herein by reference to Exhibit
10.02 of the Form SB-2).
4.07 Registrant's 1996 Directors Stock Option Plan and
related documents (incorporated herein by reference to
Exhibit 10.03 of the Form SB-2).
4.08 Registrant's 1996 Employee Stock Purchase Plan and
related documents (incorporated herein by reference to
Exhibit 10.04 of the Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Arthur Anderson LLP, Independent Public Accountants.
24.01 Power of Attorney (see page 5).
</TABLE>
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[FENWICK & WEST LLP Letterhead]
July 19, 1996
Versant Object Technology Corporation
1380 Willow Road
Menlo Park, CA 94025
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about July 19, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
1,649,110 shares of your Common Stock (the "Stock") subject to issuance by you
upon the exercise of (i) stock options granted by you under your 1989 Stock
Option Plan, as amended (the "Option Plan"), (ii) purchase rights to be granted
by you under your 1996 Employee Stock Purchase Plan (the "Purchase Plan"), (iii)
stock options, stock bonuses or restricted stock awards granted or to be granted
by you under your 1996 Equity Incentive Plan (the "Incentive Plan"); and (iv)
stock options granted or to be granted by you under your 1996 Directors Stock
Option Plan (the "Directors Plan") (collectively, with the Option Plan, the
Purchase Plan and the Incentive Plan, the "Plans").
In rendering this opinion, we have examined the following:
(1) your Amended and Restated Articles of Incorporation,
as amended;
(2) your Amended and Restated Bylaws;
(3) the Plans;
(4) the minutes of meetings and actions by written consent of your
shareholders and Board of Directors that are contained in
your minute books in our possession; and
(5) your stock records in our possession, including records of stock
options and other securities issued by you.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records included in the documents referred to above. We have made
no independent investigations or other attempts to verify the accuracy of any of
such information or to determine the existence or non-existence of any other
factual matters; however, we are not aware of any facts that would lead us to
believe that the opinion expressed herein is not accurate.
<PAGE> 2
Versant Object Technology Corporation
July 19, 1996
Page 2
Based on the foregoing, it is our opinion that the 1,649,110 shares of
Stock that may be issued and sold by you upon, collectively, the exercise of (i)
stock options granted under the Option Plan, (ii) purchase rights to be granted
under the Purchase Plan, (iii) stock options, stock bonuses or restricted stock
awards granted or to be granted under the Incentive Plan and (iv) stock options
granted or to be granted under the Directors Plan, each when issued and sold in
the manner referred to in the applicable Plan, and the applicable prospectus
associated with such Plan, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Fenwick & West LLP
----------------------
FENWICK & WEST LLP
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EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of our report dated
February 13, 1996 (except for Note 10 as to which the date is June 14, 1996)
included in Versant Object Technology Corporation's filing on Form SB-2
(Registration No. 333-4910-LA), dated July 17, 1996 and to all references to
our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
San Jose, California
July 19, 1996
