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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): July 12, 1999
VERSANT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
CALIFORNIA
(State or Other Jurisdiction of Incorporation)
0-28540 94-3079392
Commission File Number) (IRS Employer Identification No.)
6539 Dumbarton Circle, Fremont, CALIFORNIA 94555
(Address of Principal Executive Offices) (Zip Code)
(510) 789-1500
(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 5. OTHER EVENTS.
On July 12, 1999, Versant Corporation, a California corporation ("Registrant" or
the "Company") closed the issuance of shares of a newly designated Series A
Preferred Stock ("Series A Stock"). A total of 1,489,799 shares of Series A
Stock were issued, with each share of Series A Stock initially convertible into
two shares of the Company's common stock. 902,946 of the shares of Series A
Stock were issued in exchange for an outstanding convertible secured promissory
note with outstanding principal and interest of $3,846,550.82 held by Vertex
Technology Fund, Ltd. ("Vertex"), and 586,853 of the shares were issued in
consideration of an additional $2,499,994 in new financing. $1 million of the
new financing was provided by a Vertex affiliate, with the remainder
provided by other investors. Each share of Series A Stock was sold at a price of
$4.26 per share. The Company also issued warrants to purchase a total of
1,489,799 shares of the Company's common stock at an exercise price of $2.13 per
share as part of the transaction.
The Series A Stock has a participating liquidation preference over the Company's
common stock initially equal to 150% of the full amount paid for the Series A
Stock, which preference increases by an additional 50% per year over each of the
next two years, so long as the Series A Stock is outstanding. The Series A Stock
automatically converts into common stock if the Company's common stock price
exceeds $12.00 per share for 45 consecutive business days. The holders of Series
A Stock will generally vote with the holders of common stock provided that the
Series A Stock is only entitled to a number of votes equal to 50% of the number
of shares of common stock into which the Series A Stock is convertible. The
holders of Series A Stock were also provided with certain voting protective
provisions.
Neither the Series A Stock nor the warrants have been registered under the
Securities Act of 1933, and may not be offered or sold in the United States
absent registration or an exemption from applicable registration requirements.
Investors in the financing were provided with certain registration rights
relating to the shares of Series A Stock and warrants purchased by them. Each
investor also agreed not to purchase more than 100,000 additional shares in the
Company without the Company's approval so long as such investor holds more than
5% of the Company's outstanding securities.
At the completion of this transaction, the Company has approximately 10,151,277
shares of common stock outstanding, 1,489,799 shares of Series A Stock
outstanding (convertible into 2,979,598 shares of Common Stock), warrants to
purchase 1,839,799 shares of common stock outstanding and options to purchase
1,826,547 shares of common stock outstanding.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
EXHIBITS
<TABLE>
<CAPTION>
Exhibit
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<S> <C>
3.01 Registrant's Certificate of Determination dated July 12, 1999.
10.01 Preferred Stock and Warrant Purchase Agreement entered into as of
June 28, 1999 among the Company and the parties listed on the
Schedule of Investors attached thereto.
10.02 Form of Common Stock Purchase Warrant.
10.03 Debt Cancellation Agreement between the Company and Vertex
Technology Fund, Inc.
10.04 Supplement to Registration Rights Agreement among the Company
and the parties listed on the Schedule of Investors attached
thereto.
</TABLE>
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SIGNATURE
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.
VERSANT CORPORATION
Date: July 13 , 1999 /s/ GARY RHEA
--------------- -------------------------------------------------
Gary Rhea
Vice President Finance and Administration.
Chief Financial Officer, Treasurer and Secretary
(Duly Authorized Officer and Principal
Financial Officer)
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
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<S> <C>
3.01 Registrant's Certificate of Determination.
10.01 Preferred Stock and Warrant Purchase Agreement entered into as of
June 28, 1999 among the Company and the parties listed on the
Schedule of Investors attached thereto.
10.02 Form of Common Stock Purchase Warrant.
10.03 Debt Cancellation Agreement between the Company and Vertex
Technology Fund, Ltd.
10.04 Supplement to Registration Rights Agreement among the Company
and the parties listed on the Schedule of Investors attached
thereto.
</TABLE>
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EXHIBIT 3.01
EXHIBIT C
Form of
CERTIFICATE OF DETERMINATION
OF
VERSANT CORPORATION
The undersigned certify that:
I. They are the President and Secretary, respectively, of Versant Corporation, a
California corporation (the "COMPANY").
II. Pursuant to an action by unanimous written consent of the Board of Directors
of the Company adopted and effective as of July 12, 1999, the following
resolutions were duly adopted:
"WHEREAS, Article III of the Articles of Incorporation of Versant
Corporation, a California corporation (the "COMPANY") authorizes a class of
shares designated as Preferred Stock, consisting of Three Million (3,000,000)
shares and further authorizes the Board of Directors from time to time to
determine or alter the rights, preferences, privileges, and restrictions granted
to, or imposed upon, any wholly unissued series of Preferred Stock, and to fix
the number of shares of any series of Preferred Stock and the designation of any
such series of Preferred Stock; NOW, THEREFORE BE IT RESOLVED, that the Board of
Directors does hereby designate, and provide for the issuance of, a Series A
Preferred Stock of the Company, and does hereby fix and determine the rights,
preferences, privileges of, and restriction upon, and other matters relating to,
such series, as follows:
(A) The authorized number of shares of Preferred Stock of the Company is
Three Million (3,000,000) shares, none of which are outstanding. Two Million
(2,000,000) of all shares of Preferred Stock are hereby designated as Series A
Preferred Stock, no shares of which series have been issued.
(B) A statement of the preferences, privileges and restrictions granted
to or imposed upon the Series A Preferred Stock and the holders thereof is as
follows:
1. DEFINITIONS. For purposes of this statement of the preferences,
privileges and restrictions granted to or imposed upon the Series A Preferred
Stock, the following definitions shall apply:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Company" shall mean this corporation.
1.3 "Common Stock" shall mean the Common Stock of the Company.
1.4 "Common Stock Dividend" shall mean a stock dividend declared
and paid on the Common Stock that is payable in shares of Common Stock.
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1.5 "Dividend Rate" shall mean eight percent per share per annum
for the Series A Preferred Stock.
1.6 "Original Issue Date" shall mean the date on which the first
share of Series A Preferred Stock is issued by the Company.
1.7 "Original Issue Price" shall mean $4.26 per share for the
Series A Preferred Stock.
1.8 "Permitted Repurchases" shall mean the repurchase by the
Company of shares of Common Stock held by employees, officers, directors,
consultants, independent contractors, advisors, or other persons performing
services for the Company or a subsidiary that are subject to restricted stock
purchase agreements or stock option exercise agreements under which the Company
has the option but not the obligation to repurchase such shares: (i) at cost,
upon the occurrence of certain events, such as the termination of employment or
services; or (ii) at any price pursuant to the Company's exercise of a right of
first refusal to repurchase such shares.
1.9 "Premium" shall mean an amount equal to the Original Issue
Price times (i) 50% percent prior to the first anniversary of Original Issue
Date; (ii) 150% after the second anniversary of the Original Issue Date; and
(iii) 100% from the first anniversary to the second anniversary.
1.10 "Price Contingency" shall mean the closing price of the
Company's Common Stock as reported by Nasdaq or other exchange upon which it is
traded has exceeded twelve dollars per share (subject to adjustment in the same
manner as the Conversion Price as provided in Section 5.4) for forty-five
consecutive trading days.
1.11 "Subsidiary" shall mean any corporation of which at least
fifty percent (50%) of the outstanding voting stock is at the time owned
directly or indirectly by the Company or by one or more of such subsidiary
corporations.
2. DIVIDEND RIGHTS.
2.1 Series A Preferred Stock. Subject to the rights of Preferred Stock
that may be determined by the Board pursuant to Article III of the Company's
Articles of Incorporation in the future, in each calendar year, the holders of
the then outstanding Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board, out of any funds and assets of the
Company legally available therefor, noncumulative dividends at the annual
Dividend Rate for the Series A Preferred Stock, prior and in preference to the
payment of any dividends on the Common Stock in such calendar year (other than a
Common Stock Dividend). No dividends (other than a Common Stock Dividend) shall
be paid, with respect to the Common Stock during any calendar year unless
dividends in the total amount of the annual Dividend Rate for the Series A
Preferred Stock shall have first been paid or declared and set apart for payment
to the holders of the Series A Preferred Stock during that calendar year;
provided, however, that this restriction shall not apply to Permitted
Repurchases. Dividends on the Series A Preferred Stock shall not be mandatory or
cumulative, and no rights or interest shall accrue to the holders of the Series
A Preferred Stock by reason of the fact that the Company shall fail to declare
or pay dividends on the Series A Preferred Stock in the amount of the annual
Dividend Rate for the Series A Preferred Stock or in any other amount in any
calendar year or any fiscal year of the Company,
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whether or not the earnings of the Company in any calendar year or fiscal year
were sufficient to pay such dividends in whole or in part.
2.2 Participation Rights. Unless full dividends of the Series A
Preferred Stock for the current calendar year shall have been paid or declared
and a sum sufficient for the payment thereof set apart pursuant to subsection
2.1 above, no dividend whatsoever (other than a Common Stock Dividend) shall be
paid or declared and no distribution shall be made, on the Common Stock except
as set forth in the balance of this subsection 2.2. If, after dividends in the
full preferential amount specified in this Section 2 for the Series A Preferred
Stock have been paid or declared and set apart in any calendar year of the
Company, the Board shall declare additional dividends out of funds legally
available therefor in that calendar year, then, subject to the rights of
Preferred Stock that may be determined by the Board pursuant to Article III of
the Company's Articles of Incorporation in the future, such additional dividends
shall be declared pro rata on the Common Stock and the Series A Preferred Stock
on a pari passu basis according to the number of shares of Common Stock held by
such holders, where each holder of shares of Series A Preferred Stock is to be
treated for this purpose as holding the greatest whole number of shares of
Common Stock then issuable upon conversion of all shares of Series A Preferred
Stock held by such holder pursuant to Section 5.
2.3 Non-Cash Dividends. Whenever a dividend provided for in this
Section 2 shall be payable in property other than cash, the value of such
dividend shall be deemed to be the fair market value of such property as
determined in good faith by the Board.
2.4 Payment on Conversion. If the Company shall have declared and
unpaid dividends with respect to any Series A Preferred Stock, then immediately
prior to, and upon a conversion of any of the Series A Preferred Stock as
provided in Section 5, the Company shall, subject to the legal availability of
funds and assets therefor, pay in cash to the holder of the shares of Series A
Preferred Stock being converted the full amount of any dividends declared and
unpaid on such shares. If the Company shall not have legally available funds and
assets to make lawful payment of such declared and unpaid dividends, the Company
shall, in lieu of making a full cash payment of all such declared and unpaid
dividends, make payment thereof in cash to the extent the Company has legally
available funds and assets therefor, and shall pay the balance of the declared
and unpaid dividends in whole shares of Common Stock, valued at the fair market
value as determined in good faith by the Board, plus cash in lieu of any
fractional share.
3. LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the funds and
assets of the Company that may be legally distributed to the Company's
shareholders (the "Available Funds and Assets") shall be distributed to
shareholders in the following manner:
3.1 Series A Preferred Stock. Subject to the rights of Preferred
Stock that may be determined by the Board pursuant to Article III of the
Company's Articles of Incorporation in the future, the holders of each share of
Series A Preferred Stock then outstanding shall be entitled to be paid, out of
the Available Funds and Assets, and prior and in preference to any payment or
distribution (or any setting apart of any payment or distribution) of any
Available Funds and Assets on any shares of Common Stock, an amount per share
equal to the Original Issue Price of the Series A Preferred Stock
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plus all declared but unpaid dividends on the Series A Preferred Stock plus the
Premium. If upon any liquidation, dissolution or winding up of the Company, and
subject to the rights of Preferred Stock that may be determined by the Board
pursuant to Article III of the Company's Articles of Incorporation in the
future, the Available Funds and Assets shall be insufficient to permit the
payment to holders of the Series A Preferred Stock of their full preferential
amount described in this subsection, then all of the remaining Available Funds
and Assets shall be distributed among the holders of the then outstanding Series
A Preferred Stock pro rata, according to the number of outstanding shares of
Series A Preferred Stock held by each holder thereof.
3.2 Remaining Assets. If there are any Available Funds and Assets
remaining after the payment or distribution (or the setting aside for payment or
distribution) to the holders of the Series A Preferred Stock of their full
preferential amounts described above in this Section 3, then, subject to the
rights of Preferred Stock that may be determined by the Board pursuant to
Article III of the Company's Articles of Incorporation in the future all such
remaining Available Funds and Assets shall be distributed among the holders of
the then outstanding Common Stock and the Series A Preferred Stock pro rata
according to the number of shares of Common Stock held by each holder thereof
(where, for this purpose, the holders of the Series A Preferred Stock will be
deemed to hold the greatest whole number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock.)
3.3 Merger or Sale of Assets. The following shall each be deemed
to be a liquidation, dissolution or winding up of the Company as those terms are
used in this Section 3: (i) a consolidation or merger of the Company with or
into any other corporation or corporations in which the holders of the Company's
outstanding shares immediately before such consolidation or merger do not,
immediately after such consolidation or merger, retain stock representing a
majority of the voting power of the surviving corporation of such consolidation
or merger; or (ii) a sale of all or substantially all of the assets of the
Company.
3.4 Non-Cash Consideration. If any assets of the Company
distributed to shareholders in connection with any liquidation, dissolution, or
winding up of the Company are other than cash, then the value of such assets
shall be their fair market value as determined by the Board, except that any
securities to be distributed to shareholders in a liquidation, dissolution, or
winding up of the Company shall be valued as follows:
(a) The method of valuation of securities not subject to
investment letter or other similar restrictions on free marketability shall be
as follows:
(i) if the securities are then traded on a
national securities exchange or the Nasdaq National Market (or a similar
national quotation system), then the value shall be deemed to be the average of
the closing prices of the securities on such exchange or system over the 30-day
period ending three (3) days prior to the distribution; and
(ii) if there is no active public market, then
the value shall be the fair market value thereof, as determined in good faith by
the Board of Directors of the Company.
(b) The method of valuation of securities subject to
investment letter or other restrictions on free marketability shall be to make
an appropriate discount from the market value
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determined as above in subparagraphs (a)(i),(ii) or (iii) of this subsection to
reflect the approximate fair market value thereof, as determined in good faith
by the Board.
4. VOTING RIGHTS.
4.1 Common Stock. Each holder of shares of Common Stock shall be
entitled to one (1) vote for each share thereof held.
4.2 Series A Preferred Stock. Each holder of shares of Series A
Preferred Stock shall be entitled to the largest whole number of votes equal to
one half of the number of shares of Common Stock into which such shares of
Series A Preferred Stock could be converted pursuant to the provisions of
Section 5 below at the record date for the determination of the shareholders
entitled to vote on such matters or, if no such record date is established, the
date such vote is taken or any written consent of shareholders is solicited.
4.3 General. Subject to the foregoing provisions of this Section
4, each holder of Series A Preferred Stock shall have full voting rights and
powers equal to the voting rights and powers of the holders of Common Stock, and
shall be entitled to notice of any shareholders' meeting in accordance with the
bylaws of the Company (as in effect at the time in question) and applicable law,
and shall be entitled to vote, together with the holders of Common Stock, with
respect to any question upon which holders of Common Stock have the right to
vote, except as may be otherwise provided by applicable law. Except as otherwise
expressly provided herein or as required by law, the holders of Series A
Preferred Stock and the holders of Common Stock shall vote together and not as
separate classes.
5. CONVERSION RIGHTS. The outstanding shares of Series A Preferred Stock
shall be convertible into Common Stock as follows:
5.1 Optional Conversion.
(a) At the option of the holder thereof, each share of
Series A Preferred Stock shall be convertible into fully paid and nonassessable
shares of Common Stock as provided herein.
(b) Each holder of Series A Preferred Stock who elects
to convert the same into shares of Common Stock shall surrender the certificate
or certificates therefor, duly endorsed, at the office of the Company or any
transfer agent for the Series A Preferred Stock or Common Stock, and shall give
written notice to the Company at such office that such holder elects to convert
the same and shall state therein the number of shares of Series A Preferred
Stock being converted. Thereupon the Company shall promptly issue and deliver at
such office to such holder a certificate or certificates for the number of
shares of Common Stock to which such holder is entitled upon such conversion.
Such conversion shall be deemed to have been made immediately prior to the close
of business on the date of such surrender of the certificate or certificates
representing the shares of Series A Preferred Stock to be converted, and the
person entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such shares
of Common Stock on such date.
5.2 Automatic Conversion.
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(a) Each share of Series A Preferred Stock shall
automatically be converted into fully paid and nonassessable shares of Common
Stock (i) upon satisfaction of the Price Contingency or (ii) upon the Company's
receipt of the written consent of the holders of a majority of the then
outstanding shares of Series A Preferred Stock.
(b) Upon the occurrence of any event specified in
subparagraph 5.2(a) above, the outstanding shares of Series A Preferred Stock
shall be converted into Common Stock automatically without the need for any
further action by the holders of such shares and whether or not the certificates
representing such shares are surrendered to the Company or its transfer agent;
provided, however, that the Company shall not be obligated to issue certificates
evidencing the shares of Common Stock issuable upon such conversion unless the
certificates evidencing such shares of Series A Preferred Stock are either
delivered to the Company or its transfer agent as provided below, or the holder
notifies the Company or its transfer agent that such certificates have been
lost, stolen or destroyed and executes an agreement satisfactory to the Company
to indemnify the Company from any loss incurred by it in connection with such
certificates. Upon the occurrence of such automatic conversion of the Series A
Preferred Stock, the holders of Series A Preferred Stock shall surrender the
certificates representing such shares at the office of the Company or any
transfer agent for the Series A Preferred Stock or Common Stock. Thereupon,
there shall be issued and delivered to such holder promptly at such office and
in its name as shown on such surrendered certificate or certificates, a
certificate or certificates for the number of shares of Common Stock into which
the shares of Series A Preferred Stock surrendered were convertible on the date
on which such automatic conversion occurred.
5.3 Conversion Price. Each share of Series A Preferred Stock
shall be convertible in accordance with subsection 5.1 or subsection 5.2 above
into the number of shares of Common Stock which results from dividing the
Original Issue Price for such series of Series A Preferred Stock by the
conversion price for such series of Series A Preferred Stock that is in effect
at the time of conversion (the "Conversion Price"). The initial Conversion Price
for the Series A Preferred Stock shall be the Original Issue Price for the
Series A Preferred Stock divided by two. The Conversion Price shall be subject
to adjustment from time to time as provided below. Following each adjustment of
the Conversion Price, such adjusted Conversion Price shall remain in effect
until a further adjustment of such Conversion Price hereunder.
5.4 Adjustment Upon Common Stock Event. Upon the happening of a
Common Stock Event (as hereinafter defined), the Conversion Price of the Series
A Preferred Stock shall, simultaneously with the happening of such Common Stock
Event, be adjusted by multiplying the Conversion Price of such series of Series
A Preferred Stock in effect immediately prior to such Common Stock Event by a
fraction, (i) the numerator of which shall be the number of shares of Common
Stock issued and outstanding immediately prior to such Common Stock Event, and
(ii) the denominator of which shall be the number of shares of Common Stock
issued and outstanding immediately after such Common Stock Event, and the
product so obtained shall thereafter be the Conversion Price for the Series A
Preferred Stock. The Conversion Price for the Series A Preferred Stock shall be
readjusted in the same manner upon the happening of each subsequent Common Stock
Event. As used herein, the term "Common Stock Event" shall mean (i) the issue by
the Company of additional shares of Common Stock as a dividend on outstanding
Common Stock, (ii) a subdivision of the outstanding shares of Common
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Stock into a greater number of shares of Common Stock, or (iii) a combination of
the outstanding shares of Common Stock into a smaller number of shares of Common
Stock.
5.5 Adjustments for Other Dividends and Distributions. If at any
time or from time to time after the Original Issue Date the Company pays a
dividend or makes another distribution to the holders of the Common Stock
payable in securities of the Company other than shares of Common Stock, then in
each such event provision shall be made so that the holders of the Series A
Preferred Stock shall receive upon conversion thereof, in addition to the number
of shares of Common Stock receivable upon conversion thereof, the amount of
securities of the Company which they would have received had their Series A
Preferred Stock been converted into Common Stock on the date of such event (or
such record date, as applicable) and had they thereafter, during the period from
the date of such event (or such record date, as applicable) to and including the
conversion date, retained such securities receivable by them as aforesaid during
such period, subject to all other adjustments called for during such period
under this Section 5 with respect to the rights of the holders of the Series A
Preferred Stock or with respect to such other securities by their terms.
5.6 Adjustment for Reclassification, Exchange and Substitution.
If at any time or from time to time after the Original Issue Date the Common
Stock issuable upon the conversion of the Series A Preferred Stock is changed
into the same or a different number of shares of any class or classes of stock,
whether by recapitalization, reclassification or otherwise (other than by a
Common Stock Event or a stock dividend, reorganization, merger, consolidation or
sale of assets provided for elsewhere in this Section 5), then in any such event
each holder of Series A Preferred Stock shall have the right thereafter to
convert such stock into the kind and amount of stock and other securities and
property receivable upon such recapitalization, reclassification or other change
by holders of the number of shares of Common Stock into which such shares of
Series A Preferred Stock could have been converted immediately prior to such
recapitalization, reclassification or change, all subject to further adjustment
as provided herein or with respect to such other securities or property by the
terms thereof.
5.7 Certificate of Adjustment. In each case of an adjustment or
readjustment of the Conversion Price for a series of Series A Preferred Stock,
the Company, at its expense, shall cause its Chief Financial Officer to compute
such adjustment or readjustment in accordance with the provisions hereof and
prepare a certificate showing such adjustment or readjustment, and shall send
such certificate by Federal Express or other recognized international courier
service to each registered holder of the Series A Preferred Stock at the
holder's address as shown in the Company's stock record books.
5.8 Fractional Shares. No fractional shares of Common Stock shall
be issued upon any conversion of Series A Preferred Stock. In lieu of any
fractional share to which the holder would otherwise be entitled, the Company
shall pay the holder cash equal to the product of such fraction multiplied by
the Common Stock's fair market value as determined in good faith by the Board as
of the date of conversion.
5.9 Reservation of Stock Issuable Upon Conversion. The Company
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
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outstanding shares of the Series A Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series A
Preferred Stock, the Company will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose. If any shares of Common Stock reserved for the purpose of conversion of
shares of Series A Preferred Stock require registration, qualification or
listing with, or approval of, any governmental authority, stock exchange or
other regulatory body under any federal or state law or regulation or otherwise
before such shares may be validly issued or delivered upon conversion, the
Company will, in good faith, at its own expense and as expeditiously as
possible, endeavor to secure such registration, qualification, listing or
approval, as the case may be.
5.10 Notices. Any notice required by the provisions of this
Section 5 to be given to the holders of shares of the Series A Preferred Stock
shall be deemed given upon the earlier of actual receipt or three days after
being sent by Federal Express or other recognized international courier
service to each holder of record at the address of such holder appearing on the
books of the Company.
5.11 No Impairment. The Company shall not avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Company, but shall at all times in good faith assist in
carrying out all such action as may be reasonably necessary or appropriate in
order to protect the conversion rights of the holders of the Series A Preferred
Stock against impairment.
5.12 Minimum Adjustment. No adjustment to the Conversion Price of
a series of Series A Preferred Stock shall be made in an amount less than
Three-Tenths of One Cent ($0.003) per share (subject to appropriate adjustment
for stock splits and stock dividends) and provided that at such time as events
causing adjustments accumulating One Cent ($0.01) or more have occurred
adjustment to the Conversion Price of each series of Series A Preferred Stock
shall be made.
6. RESTRICTIONS AND LIMITATIONS
So long as any shares of Series A Preferred Stock remain outstanding,
the Company shall not, without the consent of the holders of a majority of the
Series A Preferred Stock then outstanding, voting as a separate class:
(i) amend or change the rights, preferences, privileges or the
restrictions of the Series A Preferred Stock;
(ii) create any class of stock having rights, preferences or
privileges superior to the Series A Preferred Stock or increase
the rights preferences or privileges or the number of authorized
shares of any class having rights, preferences or privileges
superior to or on a parity with the Series A Preferred Stock;
(iii) reclassify any outstanding shares of securities of the Company
into shares having rights, preferences or privileges senior to
the preferences of the Series A Preferred Stock;
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(iv) merge or consolidate with or into one or more other
corporations in which the shareholders of the Company
after such merger or consolidation hold stock
representing less than a majority of the voting power of
the outstanding stock of the surviving corporation; or
(v) sell all or substantially all of the Company's assets in
a single transaction or series of related transactions.
7. NO REISSUANCE OF PREFERRED STOCK. No share or shares of Series A
Preferred Stock acquired by the Company by reason of purchase, conversion or
otherwise shall be reissued, and all such shares shall be canceled, retired and
eliminated from the shares which the Company shall be authorized to issue.
8. RESERVATION. The Board reserves all rights under Article III of the
Company's Articles of Incorporation to from time to time to determine or alter
the rights, preferences, privileges, and restrictions granted to, or imposed
upon, any wholly unissued series of Preferred Stock, to fix the number of shares
of any series of Preferred Stock and the designation of any such series of
Preferred Stock, and to reduce the number of shares issuable under any series of
Preferred Stock to a number not less than the number of shares previously issued
under such series."
III. The authorized number of shares of Preferred Stock of the Company is Three
Million (3,000,000) shares, none of which have been issued. The number of shares
of Preferred Stock to constitute the Series A Preferred Stock is Two Million
(2,000,000) shares, none of which series have been issued. The Board reserves
all rights under Article III of the Company's Articles of Incorporation to from
time to time to determine or alter the rights, preferences, privileges, and
restrictions granted to, or imposed upon, any wholly unissued series of
Preferred Stock, to fix the number of shares of any series of Preferred Stock
and the designation of any such series of Preferred Stock, and to reduce the
number of shares issuable under any series of Preferred Stock to a number not
less than the number of shares previously issued under such series.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate of Determination are
true and correct of our own knowledge.
Dated: ___________________, 1999
-----------------------------------------
Nick Ordon, President and Chief Executive
Officer
-----------------------------------------
Gary Rhea, Secretary and Chief Financial
Officer
32
<PAGE> 1
EXHIBIT 10.01
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
This PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT (this "AGREEMENT")
is made and entered into as of June 28, 1999 (the "Effective Date") by and among
Versant Corporation, a California corporation (the "COMPANY"), and the parties
listed on the Schedule of Investors attached to this Agreement as Exhibit A
(each hereinafter individually referred to as an "INVESTOR" and collectively
referred to as the "INVESTORS").
R E C I T A L S
A. Vertex Technology Fund Ltd. ("Vertex") and the Company are parties to
a Note Purchase Agreement, dated as of October 16, 1998 (the "NPA") pursuant to
which Vertex purchased a note, dated October 16, 1998 (the "Note") with an
aggregate principal amount of $3,619,000 (the "Principal"). The Principal has
accrued interest of $227,550.82 as of the Effective Date. Principal and interest
under the Note is therefore: $3,846,550.82 (the "Debt").
B. The Company is currently in need of funds for working capital
purposes and needs to convert debt into equity in order to facilitate compliance
with Nasdaq's continued listing requirements.
C. Vertex is willing to purchase shares of the Company's Series A
Preferred Stock and warrants to purchase Common Stock, in exchange for the
cancellation of the Debt, as provided in this Agreement. .
D. Other Investors are willing to purchase Preferred Stock and warrants
for cash as provided in this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. PURCHASE AND SALE. Each Investor agrees, severally and not jointly,
to purchase from the Company the number of shares of the Company's Series A
Preferred Stock (the "SHARES"), no par value, set forth beside such Investor's
name on Exhibit A at the "Market Price" (as defined below) per share, together
with a warrant to purchase from the Company the number of shares of the
Company's Common Stock set forth beside such Investor's name on Exhibit A (each,
a "WARRANT" and collectively, the "WARRANTS"), at an exercise price equal to the
Market Price, for the warrant purchase price associated with such Warrant, in
substantially the form attached hereto as Exhibit B and the Company agrees to
sell to each Investor the Shares and a Warrant on the terms set forth herein.
The rights and preferences of the Shares, including the terms upon which the
Shares are convertible into Common Stock, are established by the Certificate of
Determination attached as Exhibit C, which will be filed with the California
Secretary of State supplementing the Company's articles of incorporation on or
prior to the
<PAGE> 2
closing. The Market Price is the average closing price of the Common Stock on
Nasdaq for the five trading days preceding the Effective Date.
2. CLOSING. The purchase and sale of the Shares and Warrants will take
place at the offices of Fenwick & West LLP, Two Palo Alto Square, Suite 800,
Palo Alto, California, at 11:00 a.m. Pacific Time, on July 12, 1999 or at such
other time and place as the Company and Investors who have agreed to purchase a
majority of the Shares listed on Exhibit A mutually agree upon, either orally or
in writing. Such time and place are referred to in this Agreement as a
"CLOSING". At the Closing, the Company will deliver to each Investor a
certificate for the Shares and a Warrant against delivery to the Company by such
Investor of the full purchase price of such Shares and Warrant, paid by a check
payable to the Company's order or wire transfer of funds to the Company or by
cancellation of indebtedness as set forth on Exhibit A. In the case of payment
by cancellation of indebtedness by Vertex, the Company and Vertex shall execute
the Debt Cancellation Agreement attached as Exhibit E to this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Investor that, except as set forth in the
Schedule of Exceptions (the "SCHEDULE OF EXCEPTIONS") attached to this Agreement
as Exhibit C (which Schedule of Exceptions shall be deemed to be representations
and warranties to the Investors by the Company under this Section 3), the
statements in the following paragraphs of this Section 3 are all true and
complete:
3.1 Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of California and has all requisite corporate power and
authority to own its properties and assets and to carry on its business as now
conducted and as presently proposed to be conducted. Each of the Company's
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as now conducted and as presently proposed to be
conducted. Each of the Company and its subsidiaries is qualified to do business
as a foreign corporation in each jurisdiction where failure to be so qualified
would have a material adverse effect on its financial condition, business,
prospects or operations.
3.2 Due Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders, necessary for the
authorization, execution and delivery of, and the performance of all obligations
of the Company under, this Agreement, the Warrants and the Registration Rights
Agreement (as defined in Section 5.7 below) and the authorization, issuance,
reservation for issuance and delivery of all the Shares and the Common Stock
that is issuable under exercise of the Warrants and conversion of the Shares
(the "EXERCISE SHARES") has been taken or will be taken prior to the execution
of this Agreement, and this Agreement, the Warrants and the Registration Rights
Agreement constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as may be limited
by: (i) applicable bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting the enforcement of creditor's
rights generally; and (ii) the effect of rules of law governing the availability
of equitable remedies.
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<PAGE> 3
3.3 Corporate Power. The Company has all requisite legal and
corporate power to execute and deliver this Agreement, the Warrants and the
Registration Rights Agreement, to issue the Shares and the Exercise Shares, and
to carry out and perform all its obligations under this Agreement, the Warrants
and the Registration Rights Agreement.
3.4 Proceedings. There is no pending action, suit, litigation,
arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), prosecution, hearing, or investigation,
commenced, brought, conducted or heard by or before, any governmental body or
any arbitrator or arbitration panel ("PROCEEDING"), and to the Company's
knowledge, no person or entity has threatened to commence any Proceeding, (i)
that challenges, or that may have the effect of preventing, delaying, making
illegal or otherwise interfering with, the transactions contemplated by this
Agreement, the Warrants or the Registration Rights Agreement or (ii) that might
result, either individually or in the aggregate, in any material adverse change
in the business, assets, financial condition, results of operations or prospects
of the Company. The Company is not party or subject to the provisions of any
order, writ, injunction, judgment, stipulation or decree of any court,
administrative agency, commission, regulatory authority or other governmental
agency or instrumentality that are likely to have a material adverse effect on
the business, assets, financial condition, results of operations or prospects of
the Company.
3.5 Non-Contravention; Consents; No Liens. Neither the execution
and delivery of this Agreement, the Warrants or the Registration Rights
Agreement, nor the consummation or performance of any of the transactions
contemplated by this Agreement, the Warrants or the Registration Rights
Agreement, will directly or indirectly (with or without notice or lapse of
time):
(a) contravene, conflict with or result in a violation of
(i) any of the provisions of the Company's Articles of Incorporation or Bylaws,
or (ii) any resolution adopted by the Company's shareholders, the Company's
Board of Directors or any committee of the Company's Board of Directors;
(b) contravene, conflict with or result in a violation of,
or give any governmental body or other person the right to challenge any of the
transactions contemplated by this Agreement, the Warrants, the Registration
Rights Agreement or any Material Contract (as defined in Section 3.7(d) below)
or to exercise any remedy or obtain any relief under, any federal, state, local,
municipal, foreign or other law, statute, legislation, ordinance, rule,
regulation or ruling that is or has been issued, enacted, adopted, passed,
approved, promulgated, made, implemented or otherwise put into effect by or
under the authority of any governmental body, or any order to which the Company,
or any of the assets owned or used by the Company, is subject;
(c) contravene, conflict with or result in a material
violation or breach of, or result in a material default under, any of the
Company's material agreements; or
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<PAGE> 4
(d) result in the creation of any lien, charge or
encumbrance upon any asset of the Company.
With the exception of any necessary filings pursuant to federal and state
securities laws, and except as disclosed on the Schedule of Exceptions, the
Company will not be required to make any filing with or give any notice to, or
to obtain any consent from, any person in connection with the execution and
delivery of this Agreement, the Warrants and the Registration Rights Agreement
or the consummation or performance of any of the transactions contemplated by
this Agreement, the Warrants and the Registration Rights Agreement.
3.6 Brokers. The Company has not agreed or become obligated to
pay, and has not taken any action that likely would result in any person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the transactions
contemplated by this Agreement.
3.7 Full Disclosure; SEC Reports; SEC Matters.
(a) This Agreement (including all exhibits and schedules
hereto) does not contain any untrue statement of material fact and does not omit
to state any fact necessary to make any of the representations, warranties or
statements contained herein on behalf of the Company not misleading with respect
to the Company.
(b) As of the date of this Agreement, the Company has
provided the Investors or their counsel with full and complete access to all of
the Company's records and other documents and data requested by them.
(c) The Company has filed all reports required to be filed
with the Securities and Exchange Commission ("SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") (all such reports and
amendments thereto, collectively, the "COMPANY SEC REPORTS"). None of such
Company SEC Reports, as of their respective dates (as amended through the date
hereof), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) The Company has filed all Material Contracts required
to be filed with the SEC pursuant to the Item 601 of Regulation S-K under the
Securities Act of 1933, as amended (the "1933 ACT") and the Exchange Act.
(e) The Company is eligible to file Form S-3 registration
statements under the 1933 Act with the SEC in connection with offerings of
outstanding Company securities to be offered for the account of any person other
than the Company, so long as such person is not a registered broker-dealer.
3.8 Valid Issuance. The Shares and the Exercise Shares, when
issued in compliance with the terms of this Agreement and the Warrants, will be
validly issued, fully paid and nonassessable and will be free of any liens or
encumbrances.
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<PAGE> 5
3.9 Capitalization. As of the date of this Agreement, the
capitalization of the Company consists of the following:
(a) Preferred Stock. A total of 3,000,000 authorized
shares of preferred stock, no par value per share, none of which is issued and
outstanding.
(b) Common Stock. A total of 30,000,000 authorized shares
of common stock, no par value per share (the "Common Stock"), of which
10,151,227 shares are issued and outstanding as of July 8, 1999.
(c) Options, Warrants, Reserved Shares. Except for: (i)
the 516,862 shares of Common Stock reserved for issuance under the Company's
1989 Stock Option Plan; (ii) the 1,900,000 shares of Common Stock reserved for
issuance under the Company's 1996 Equity Incentive Plan under which options to
purchase 1,756,547 shares are outstanding; (iii) the 325,017 shares of Common
Stock available for issuance under the Company's 1996 Employee Stock Purchase
Plan; (iv) the 125,000 shares of Common Stock reserved for issuance under the
Company's 1996 Directors Stock Option Plan under which options to purchase
70,000 shares are outstanding; (v) the 1,880,000 shares of Common Stock reserved
for issuance upon the conversion of an outstanding Convertible Subordinated
Secured Promissory Note of the Company; and (vi) 350,000 shares of Common Stock
issuable upon the exercise of warrants dated December 28, 1998 by the three
Special Situations Funds (subject to adjustment as provided in such warrants)
there are not outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock or any securities convertible into or
ultimately exchangeable or exercisable for any shares of the Company's capital
stock.
3.10 No Material Adverse Change. Since March 31, 1999, the business
of the Company has been operated in the ordinary course and substantially
consistent with past practice, and, except as disclosed in the Company SEC
Reports, there has not been any material adverse change in the business, assets,
financial condition, results of operations or prospects of the Company.
3.11 Title to Properties; Liens and Encumbrances. The Company has
good and marketable title to its properties and assets and, with respect to the
property and assets leased by the Company, holds valid leasehold interests
therein, in each case subject to no mortgage, pledge, lien, security interest,
conditional sale agreement, encumbrance or charge, except (i) tax, materialmen's
or like liens for obligations not yet due or payable or being contested in good
faith by appropriate proceedings, (ii) liens arising from equipment loans
entered into in the ordinary course of business or (iii) except as disclosed on
the Schedule of Exceptions or in the Company's public filings.
3.12 Proprietary Information and Other Rights. The Company has
title and ownership of or license rights to all patents, patent applications,
trademarks, service marks, trade names, copyrights, mask works, trade secrets,
information, proprietary rights and processes
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<PAGE> 6
(collectively, "PROPRIETARY INFORMATION") necessary for its business as now
conducted and as presently proposed to be conducted without, except in the case
of patents and patent applications, any conflict with or infringement of the
rights of others. To the best of the Company's knowledge, it possesses no
patents or patent applications which conflict with or infringe the rights of
others. The Company has not received any communications considered material and
credible alleging that the Company has violated or, by conducting its business
as proposed, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade proprietary rights of any other person or entity. To
the best knowledge of the Company none of its employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of the Company or that would conflict with the
Company's business as proposed to be conducted. Neither the execution nor
delivery of this Agreement and related agreements nor the carrying on of
the?Company's business by the employees of the Company nor the conduct of the
Company's business as proposed, will, to the best of the Company's knowledge,
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any of such employees is now obligated. The Company does not believe nor does it
have any reason to believe it is or will be necessary to utilize any inventions
of any of its employees (or people they currently intend to hire) made prior to
the employment of any such person by the Company.
3.12 Employees. To the best of the Company's knowledge, no employee
of the Company is in violation of any term of any employment contract, patent
disclosure agreement, non-competition agreement, or any restrictive covenant to
a former employer relating to the right of any such employee to be employed by
the Company because of the nature of the business conducted or presently
proposed to be conducted by the Company.
3.13 Confidential Information and Invention Assignment Agreements.
Each officer and employee of the Company has executed or will execute before the
first Closing a Confidential Information and Invention Assignment Agreement
conforming in all material respects to the Company's standard form.
3.14 Registration Rights. Except as set forth in the Registration
Rights Agreement or in the Company's public filings, the Company is not under
any obligation to register any of its currently outstanding securities or any of
its securities which may hereafter be issued.
3.15 Agreements; Action.
(a) Except for agreements explicitly contemplated hereby, there
are no material agreements, understandings or proposed transactions between the
Company and any of its officers, directors, affiliates, or any affiliate
thereof, except as disclosed in the Company's public filings.
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<PAGE> 7
(b) Other than as disclosed on the Schedule of Exceptions or its
public filings, the Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or
incurred any liabilities in excess of $25,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances for travel
expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights other than the sale of their inventory in the ordinary course of
business.
3.16 Litigation. Except as set forth in the Company's public
filings, there are no actions, suits, proceedings or investigations pending or
threatened against the Company or any of its properties before any court or
governmental agency or claims asserted, nor, to the Company's knowledge, is
there any basis therefor. The foregoing includes, without limitation, actions
pending or threatened (or any basis therefor known to the Company) involving
prior employment of any of the Company's employees or former employees or their
obligations under any agreements with prior employers. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or governmental agency or instrumentality. There is no
action, suit, proceeding, or investigation by the Company currently pending or
that the Company intends to initiate.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each
Investor hereby represents and warrants to, and agrees with, the Company that:
4.1 Authorization. This Agreement, the Warrant to be purchased by
such Investor and the Registration Rights Agreement constitute such Investor's
valid and legally binding obligation, enforceable in accordance with their
respective terms except as may be limited by: (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally, and (ii) the effect of
rules of law governing the availability of equitable remedies. The Investor
represents that such Investor has full power and authority to enter into this
Agreement, the Warrant to be purchased by such Investor and the Registration
Rights Agreement.
4.2 Purchase for Own Account. The Shares and Warrant to be
purchased by such Investor hereunder and the Exercise Shares will be acquired
for investment for such Investor's own account, not as a nominee or agent, and
not with a view to the public resale or distribution thereof within the meaning
of the 1933 Act, and such Investor has no present intention of selling, granting
any participation in, or otherwise distributing the same.
4.3 Disclosure of Information. Such Investor believes it has
received or has had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to the Shares
and Warrant to be purchased by such Investor under this Agreement. Such Investor
further has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Shares and
Warrant and to obtain additional information (to the extent the Company
possessed such
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<PAGE> 8
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Investor or to which such
Investor had access. The foregoing, however, does not in any way limit or modify
the representations and warranties made by the Company in Section 3.
4.4 Investment Experience. Such Investor is an "accredited
investor" within the meaning of Regulation D promulgated under the 1933 Act.
4.5 Restricted Securities. Such Investor understands that the
Shares, Warrants and Exercise Shares are characterized as "restricted
securities" under the 1933 Act and Rule 144 promulgated thereunder inasmuch as
they are being acquired from the Company in a transaction not involving a public
offering and that under the 1933 Act and applicable regulations thereunder such
securities may be resold without registration under the 1933 Act only in certain
limited circumstances.
4.6 No Solicitation. At no time was such Investor presented with
or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Shares, Warrants or Exercise Shares.
4.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, such Investor further agrees not
to make any disposition of all or any portion of the Shares, Warrants or
Exercise Shares unless and until:
(a) there is then in effect a registration statement under
the 1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) such Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a statement
of the circumstances surrounding the proposed disposition, and (ii) such
Investor shall have furnished the Company, at the expense of such Investor or
its transferee, with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such securities
under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
transfer of any Shares, Warrants or Exercise Shares in compliance with SEC Rule
144; (ii) for any transfer of any Shares, Warrants or Exercise Shares by an
Investor to any affiliate (as that term is defined in Rule 405 promulgated under
the 1933 Act) of such Investor; (iii) for any transfer of any Shares, Warrants
or Exercise Shares by an Investor that is a partnership or a corporation to (A)
a partner of such partnership or a shareholder of such corporation or (B) the
estate of any such partner or shareholder; or (iv) for the transfer by gift,
will or intestate succession by any Investor to his or her spouse or lineal
descendants or ancestors or any trust for any of the foregoing; provided that in
each of the
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<PAGE> 9
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 4 to the same extent as if the transferee were an original Investor
hereunder.
4.8 Legends. It is understood that the certificates evidencing the
Shares, Warrants or Exercise Shares will bear the legend set forth below:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER THE
ACT OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
each Investor under Section 2 of this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following conditions, which
conditions may be waived by written, oral or telephone communication to the
Company, its counsel or to counsel to the Investors:
5.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Compliance Certificate. The Company shall have delivered to
the Investors at the Closing a certificate signed on its behalf by its Chief
Executive Officer or Chief Financial Officer certifying that the conditions
specified in Sections 5.1 and 5.2 have been fulfilled and stating that there
shall have been no material adverse change in the business, affairs, prospects,
operations, properties, assets or condition of the Company not previously
disclosed to the Investors.
5.4 Securities Exemptions. The offer and sale of the Shares,
Warrants and Exercise Shares to the Investors pursuant to this Agreement shall
be exempt from the registration
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<PAGE> 10
requirements of the 1933 Act and the registration and/or qualification
requirements of all applicable state securities laws and shall comply with the
applicable rules of corporate governance of Nasdaq.
5.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor and to the Investors' counsel, and they shall each
have received all such counterpart originals and certified or other copies of
such documents as they may reasonably request.
5.6 No Material Change. There shall have been no material adverse
change in the business, affairs, prospects, operations, properties, assets or
condition of the Company since March 31, 1999.
5.7 Registration Rights Agreement. The Company shall have
executed and delivered the supplement to the Registration Rights Agreement dated
October 16, 1998 substantially in the form attached hereto as Exhibit F (the
"REGISTRATION RIGHTS AGREEMENT").
5.8 Delivery of Shares and Warrants. The Company shall have
delivered to such Investor a certificate for the Shares and the Warrant to be
purchased by such Investor pursuant to this Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to each Investor under this Agreement are subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions by such Investor:
6.1 Representations and Warranties. The representations and
warranties of such Investor contained in Section 4 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. Such Investor shall have delivered
to the Company the purchase price in accordance with the provisions of Section
2.
6.3 Securities Exemptions. The offer and sale of the Shares,
Warrants and Exercise Shares to the Investors pursuant to this Agreement shall
be exempt from the registration requirements of the 1933 Act and the
registration and/or qualification requirements of all applicable state
securities laws and shall comply with the applicable rules of corporate
governance of Nasdaq.
6.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's
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legal counsel, and the Company shall have received all such counterpart
originals and certified or other copies of such documents as it may reasonably
request.
7. CERTAIN COVENANTS
7.1 Standstill. Each Investor that owns securities representing
more than five percent of the Company's outstanding Common Stock on an as
converted basis agrees that it will not acquire more than 100,000 shares of the
Company's Common Stock (other than Exercise Shares through conversion of the
Shares or exercise of the Warrants) or securities convertible into Common Stock
without the prior written consent of the Company. The Company will respond to
any Investor request to acquire more than 100,000 shares of such stock within
two business days of the Company's receipt of such request. If the Company does
not respond within such two business day period, the Company shall be deemed to
have denied consent as to the referenced transaction. The Company agrees not to
unreasonably withhold its consent.
7.2 Right of First Offer. Commencing on the Closing, in the event
an Investor and its "affiliates" or "associates" (as those terms are defined in
Rule 405 promulgated under the 1933 Act) (collectively, the "INVESTOR GROUP")
seek to sell, transfer the voting rights in, or otherwise transfer for value
Common Stock (or Shares convertible into Common Stock or Warrants exercisable
for Common Stock) representing 5% or more of the then outstanding shares of the
Company's Common Stock to any person or group of persons in one or more related
transactions (a "SIGNIFICANT TRANSACTION"), the Investor Group will provide the
Company, in writing, with a notice reflecting its desire to enter into such
Significant Transaction and setting forth the terms and conditions of the
proposed Significant Transaction (such notice, a "ROFO NOTICE"). Each ROFO
Notice shall constitute an offer by the Investor Group to sell the securities
covered by such ROFO Notice (the "ROFO SECURITIES") to the Company on the terms
and conditions set forth in the ROFO Notice. If the Company desires to accept
the offer set forth in the ROFO Notice as to any part of the ROFO Securities,
the Company shall, within ten business days of receipt of such ROFO Notice,
notify the Investor Group of its agreement to acquire some or all of the ROFO
Securities (the "ROFO ACCEPTANCE"). The closing of any sale of ROFO Securities
by the Investor Group to the Company shall occur within three business days of
the Investor Group's receipt of the ROFO Acceptance, at which time the Company
will deliver the purchase price for the ROFO Securities it is purchasing in
return for such securities. In the event (i) the Company does not provide the
Investor Group with a ROFO Acceptance within ten business days of receipt of a
ROFO Notice or (ii) the Investor Group receives a ROFO Acceptance with respect
to less than all of the ROFO Securities, then the Investor Group may sell,
transfer the voting rights in, or otherwise transfer for value all or the
remaining ROFO Securities, as the case may be, to any third party or parties on
terms and conditions no less favorable in the aggregate to such third parties
than those set forth in the ROFO Notice; provided, however, that if such sale,
transfer of voting rights, or transfer of value does not occur within 60 days of
the Company's initial receipt of a ROFO Notice, the Investor Group will be
required to resubmit a ROFO Notice to the Company and follow the procedures
outlined in this section before consummating such sale, transfer of voting
rights or transfer for value. This Right of First Offer (i) will not apply to
any transfer in connection with a transaction approved by the
-11-
<PAGE> 12
Company's Board of Directors, (ii) will not continue to apply to any Common
Stock transferred pursuant to this Section, and (iii) will terminate three years
from the Effective Date.
7.4 Change in Control. Neither the Company nor any Investor
intends to effect a "change in control" of the Company, as such term is utilized
in Nasdaq's corporate rules of governance, as a result of this Agreement. In the
event Nasdaq contends that a change in control has, will or may occur, then the
applicable Investor agrees to take such reasonable measures as are requested by
or negotiated with Nasdaq to eliminate Nasdaq's concerns. Such measures may
include giving an irrevocable proxy to vote a portion of such Investor's Shares
to another Investor or shareholder while control issues exist. The Company and
the applicable Investor agree to reasonably cooperate in such efforts. In the
event that such parties are unable to negotiate and timely implement measures
satisfactory to Nasdaq, then the Company can elect to rescind some or all of the
investment transaction or seek shareholder approval of the applicable
transaction.
7.5 Reimbursement. The Company shall pay in connection with the
preparation, execution and delivery of this Agreement, the fees and
out-of-pocket expenses of Wilson Sonsini Goodrich & Rosati, special counsel to
the lead Investor, such fees and expenses not to exceed $10,000.
7.6 Additional Debt. While Vertex continues to hold more than
half of the Shares it acquires pursuant to this Agreement, the Company shall not
incur any additional indebtedness other than in the ordinary course of business
without the prior written consent of Vertex, which consent shall not be
unreasonably withheld.
7.7 Securities Filings Assistance. The Company shall assist
Vertex in making any required filings under applicable U.S. securities laws in
connection with this Agreement and the transactions contemplated hereby.
8. MISCELLANEOUS.
8.1 Governing Law. This Agreement shall be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
8.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.3 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with a recognized international courier service, fees prepaid and
addressed to the party to be notified, in the case of the Company, at 6539
Dumbarton Circle, Fremont, California 94555, and in the case of an Investor
-12-
<PAGE> 13
at the address indicated for such party on Exhibit A, or at such other address
as such party may designate by ten (10) days advance written notice to all other
parties.
8.4 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and holders of at
least a majority of the aggregate of the Shares (as if converted) and Exercise
Shares then issued or issuable (not including any Shares or Exercise Shares sold
to the public). Any amendment or waiver effected in accordance with this Section
shall be binding upon each holder of any Shares, Warrants or Exercise Shares at
the time outstanding, each future holder of such securities, and the Company.
8.5 Entire Agreement. This Agreement, together with all exhibits
and schedules hereto, constitutes the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all prior
understandings and agreements with respect to such matters.
8.6 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
8.7 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs and exhibits shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits attached hereto, all of which exhibits are
incorporated herein by this reference.
8.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
enforced to the maximum extent possible consistent with applicable law and the
balance of the Agreement shall remain in full force and effect.
8.9 Further Assurances. From and after the date of this
Agreement, upon the request of the Investor or the Company, the Company and the
Investor shall execute and deliver such instruments, documents or other writings
as may be reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
VERSANT CORPORATION VERTEX TECHNOLOGY FUND, LTD
By: By:
------------------------------ -----------------------------------
Name: Name:
---------------------------- ---------------------------------
Title: Title:
-------------------------- -------------------------------
ADDITIONAL INVESTOR ADDITIONAL INVESTOR
By: By:
------------------------------ -----------------------------------
Name: Name:
---------------------------- ---------------------------------
Title: Title:
-------------------------- -------------------------------
ADDITIONAL INVESTOR ADDITIONAL INVESTOR
By: By:
------------------------------ -----------------------------------
Name: Name:
---------------------------- ---------------------------------
Title: Title:
-------------------------- -------------------------------
[SIGNATURE PAGE TO PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT.]
-14-
<PAGE> 15
EXHIBIT A
SCHEDULE OF INVESTORS
<TABLE>
<CAPTION>
Shares of Shares of
Shares of Common Stock Common Stock Total
Investor Preferred Stock issuable Subject to Purchase
- -------- Stock Purchased Purchase Price upon Warrant @ Price
@ $4.26/Share -------------- conversion* $.125/share* ---------
------------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Vertex Technology Fund, Ltd 902,946 $3,846,550.82 1,805,892 902,946** $3,846,550.82
c/o Vertex Management, Inc. by for Shares)
3 Lagoon Drive, #220 cancellation plus $0
Redwood City, CA 94065 of Debt (for
Warrant)
Vertex Technology Fund (II), 234,741 $999,996.66 469,482 234,741 $999,996.66
Ltd (for
c/o Vertex Management, Inc. Shares)
3 Lagoon Drive, #220 plus
Redwood City, CA 94065 $29,342.63
(for
Warrant)
Joseph M. Cohen 176,056 $749,998.56 352,112 176,056 $749,998.56
Family Limited Partnership (for
70 East 55th Street, 16th Fl. Shares)
New York, NY 10022 plus
$22,007
(for
Warrant)
Technology Development Fund 176,056 $749,998.56 352,112 176,056 $749,998.56
21 Science Park Drive (for
#02-01 The Aquarius Shares)
Singapore Science Park II plus
Singapore 117628 $22,007
(for
Warrant)
Total 1,489,799 $2,499,993.78 2,979,598 $6,346,544.60
by check and 1,489,799 (for
$3,846,550.82 Shares)
by Debt plus
cancellation $73,356.63
(for
Warrant) or
$6,419,901.23
in total
</TABLE>
*subject to adjustment
** Vertex' Warrant
-15-
<PAGE> 1
EXHIBIT 10.02
EXHIBIT B
FORM OF WARRANT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER THE ACT
OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
Warrant to Purchase
Shares of Common Stock
(Subject to Adjustment)
VERSANT CORPORATION
COMMON STOCK PURCHASE WARRANT
VERSANT CORPORATION, a California corporation (the "Company"), hereby
certifies that, for value received, the holder is entitled, subject to the terms
set forth below, to purchase from the Company, on the terms hereof,
________fully paid and nonassessable shares of Common Stock of the Company.
The purchase price per share of such Common Stock shall be $2.13 (the
"Exercise Price"). The number and character of such shares of Common Stock are
subject to adjustment as provided below.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" includes any corporation which shall
succeed to or assume the obligations of the Company hereunder.
16
<PAGE> 2
(b) The term "Common Stock" shall mean the Common Stock of the
Company, and any other securities or property of the Company or of any other
person (corporate or otherwise) which the holder of this Warrant at any time
shall be entitled to receive on the exercise hereof, in lieu of or in addition
to Common Stock, or which at any time shall be issuable in exchange for or in
replacement of Common Stock.
(c) The term "Blackout Period" shall mean any period during which
the ability of the holder of this Warrant to resell the Common Stock issued or
issuable upon exercise of this Warrant pursuant to the Registration Statement
(as defined in the Registration Rights Agreement) has been suspended, pursuant
to Section 2.4.3 of the Registration Rights Agreement or otherwise.
(d) The term "Registration Rights Agreement" shall mean that
certain Registration Rights Agreement among the Company, the initial holder of
this Warrant and certain third parties dated October 16, 1998 as amended as of
June 28, 1999.
1. Initial Exercise Date; Expiration. This Warrant may be exercised at
any time or from time to time after the date hereof. It shall expire upon the
earlier of (i) July 11, 2004, (ii) an acquisition of the Company (whether by
merger, consolidation, tender offer or otherwise) in which the Company's
shareholders prior to the acquisition own less than a majority of the surviving
corporation, or the sale of all or substantially all of the Company's assets
(any of such transactions, an "Acquisition"), or (iii) 15 business days after
the Company gives notice to the holder that the Company's stock price on the
Nasdaq National Market or other primary market for the Company's stock has
closed with a closing bid price above $12.00 for forty-five consecutive business
days (the earlier of all such dates, the "Expiration Date"). After the
Expiration Date, this Warrant shall terminate, and shall be void and of no
further force and effect; provided, however, that if the Expiration Date is
triggered by (i) or (iii) above and falls during or within 30 days after a
Blackout Period, this Warrant shall not terminate until 30 days after the end of
such Blackout Period; and provided, further, that for the Expiration Date to be
triggered by (iii) above, the Company must furnish the above-mentioned notice to
the holder within five business days following the forty-five consecutive
business day trading period specified in (iii) above.
2. Exercise of Warrant; Partial Exercise. This Warrant may be exercised
in full or in part by the holder hereof by surrender of this Warrant, with the
form of subscription attached hereto and the completion of an appropriate
investment representation letter, as may be reasonably required by the Company,
duly executed by such holder, to the Company at its principal office,
accompanied by payment, in cash, by certified or official bank check payable to
the order of the Company or by wire transfer, of the purchase price of the
shares of Common Stock to be purchased hereunder. For any partial exercise
hereof, the holder shall designate in the subscription the number of shares of
Common Stock that it wishes to purchase. On any such partial exercise, the
Company at its expense shall forthwith issue and deliver to the holder hereof a
new warrant of like tenor, in the name of the holder hereof, which shall be
exercisable for such number of shares of Common Stock represented by this
Warrant which have not been purchased upon such exercise.
17
<PAGE> 3
3. When Exercise Effective. The exercise of this Warrant shall be deemed
to have been effected immediately prior to the close of business on the business
day on which this Warrant is surrendered to the Company as provided in Section 2
and at such time the person in whose name any certificate for shares of Common
Stock shall be issuable upon such exercise, as provided in Section 4, shall be
deemed to be the record holder of such Common Stock for all purposes.
4. Delivery on Exercise; Penalty for Failure to Deliver. As soon as
practicable, and in any event within three business days, after the exercise of
this Warrant in full or in part, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder may direct, a
certificate or certificates for the number of fully paid and nonassessable full
shares of Common Stock to which such holder shall be entitled on such exercise,
together with cash, in lieu of any fraction of a share, equal to such fraction
of the current market value of one full share as determined in good faith by the
Board of Directors.
5. Adjustment of Exercise Price and Number of Shares. The number and
character of the shares of Common Stock issuable upon exercise of this Warrant
(or any shares of stock or other securities at the time issuable upon exercise
of this Warrant) and the Exercise Price therefor, are subject to adjustment upon
the occurrence of the following events:
5.1 Adjustment for Stock Splits, Stock Dividends, etc. The
Exercise Price of this Warrant and the number of shares of Common Stock issuable
upon exercise of this Warrant (or any shares of stock or other securities at the
time issuable upon exercise of this Warrant) shall be appropriately adjusted to
reflect any stock dividend, stock split, combination of shares, or similar event
affecting the number of outstanding shares of Common Stock (or such other stock
or securities). For example if there should be a two-for-one (2-for-1) stock
split, the Exercise Price would be divided by two (2) and the number of shares
that may be purchased pursuant hereto would be doubled.
5.2 Adjustment for Other Dividends and Distributions. In case the
Company shall make or issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other distribution with
respect to the Common Stock (or any shares of stock or other securities at the
time issuable upon exercise of the Warrant) payable in (i) securities of the
Company (other than shares of Common Stock) or (ii) assets (excluding cash
dividends paid or payable solely out of retained earnings), then in each case,
the holder of this Warrant on exercise hereof at any time after the
consummation, effective date or record date of such event, shall receive, in
addition to the Common Stock (or such other stock or securities) issuable on
such exercise prior to such date, the securities or such other assets of the
Company to which such holder would have been entitled upon such date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
5.3 Adjustment for Reorganization, Consolidation, Merger, etc. In
case of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, other than
an Acquisition, in which the Company shall not be the continuing or surviving
entity of such consolidation, merger or reorganization (any such
18
<PAGE> 4
transaction being hereinafter referred to as a "Reorganization"), then, in each
case, the holder of this Warrant, on exercise hereof at any time after the
consummation or effective date of such Reorganization (the "Effective Date"),
shall receive, in lieu of the Common Stock issuable on such exercise prior to
the Effective Date, the stock and other securities and property (including cash)
to which such holder would have been entitled upon the Effective Date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant). Nothing in this Section 5.3
shall limit the expiration provisions set forth in Section 1 hereof.
5.4 Reclassification or Recapitalization. If the Company's Common
Stock (or any other shares of stock issuable at any time upon exercise of this
Warrant) shall be changed into shares of any other class or series of the
Company's stock, whether pursuant to reclassification, recapitalization or
similar change, then the holder of this Warrant, upon exercise hereof, at any
time after the effective date of such reclassification, recapitalization or
similar event, shall receive, in lieu of the Common Stock issuable (or any other
shares of stock then issuable upon exercise of this Warrant) on exercise
immediately prior to such date, the stock and/or other securities and/or
property to which such holder would have been entitled upon such date if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
5.5 Certificate as to Adjustments. In case of any adjustment or
readjustment in the number, price or kind of securities issuable on the exercise
of this Warrant, the Company will promptly give written notice thereof to the
holder of this Warrant in the form of a certificate, setting forth such
adjustment or readjustment and showing in reasonable detail the facts upon which
such adjustment or readjustment is based.
6. Impairment. The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of stock receivable on the
exercise of this Warrant above the amount payable therefor on such exercise, (b)
will at all times reserve and keep available a number of its authorized shares
of Common Stock, free from all preemptive rights therein, which will be
sufficient to permit the exercise of this Warrant, and (c) shall take all such
action as may be necessary or appropriate in order that all shares of Common
Stock as may be issued pursuant to the exercise of this Warrant will, upon
issuance, be duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issue thereof.
7. Replacement of Warrants. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any
19
<PAGE> 5
such mutilation, on surrender and cancellation of such Warrant, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant of like
tenor.
8. Transfer. Subject to the transfer conditions referred to in the
legend endorsed hereon, this Warrant and all rights hereunder are transferable,
in whole or in part, without charge to the holder hereof upon surrender of this
Warrant with a properly executed assignment (in the form annexed hereto) at the
principal office of the Company. Upon any partial transfer, the Company will at
its expense issue and deliver to the holder hereof a new Warrant of like tenor,
in the name of the holder hereof, which shall be exercisable for such number of
shares of Common Stock which were not so transferred.
9. No Rights or Liability as a Shareholder. This Warrant does not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company. No provisions hereof, in the absence of affirmative action by
the holder hereof to purchase Common Stock, and no enumeration herein of the
rights or privileges of the holder hereof shall give rise to any liability of
such holder as a shareholder of the Company.
10. Notices.
(a) Prior to any merger, consolidation, sale of all or
substantially all of the Company's assets, or any taking by the Company of a
record of the holders of any class of securities of the Company for the purpose
of determining the holders thereof who are entitled to receive any dividend
(excluding cash dividends paid or payable solely out of retained earnings), or
other distribution, the Company will provide to the holder of this Warrant at
least twenty (20) days prior to the closing of such event or the earliest record
date specified therein, a notice specifying:
(i) The date on which any such record is to be taken for
the purpose of such dividend or distribution, and the amount and character of
such dividend or distribution; or
(ii) The expected closing date of any merger,
consolidation or sale of assets, and that upon the closing of such event, this
Warrant will automatically expire if not previously exercised.
(b) All notices referred to in this Warrant shall be in writing
and shall be delivered personally or by Federal Express or other recognized
express courier and will be deemed to have been given when so delivered or
mailed (i) to the Company, at its principal executive offices and (ii) to the
holder of this Warrant, at such holder's address as it appears in the records of
the Company (unless otherwise indicated by such holder).
11. Amendment. This Warrant is one of a series of Warrants providing for
the purchase, in the aggregate, of up to 1,489,799 shares of the Company's
Common Stock (the "Warrant Series"). The provisions of this Warrant may be
amended and/or waived, either prospectively or retroactively, with the written
approval of the Company and the holder(s) of Warrant(s) to purchase a majority
of the shares of Common Stock purchasable upon exercise of all of the
outstanding Warrants in the Warrant Series. Any amendment or waiver effected in
20
<PAGE> 6
accordance with this paragraph shall be binding upon each holder of any of the
Warrants at the time outstanding and the Company. The Warrant(s) may only be
amended in writing.
12. Miscellaneous. This Warrant is being delivered in the State of
California and shall be governed by and construed and enforced in accordance
with the internal laws of the State of California (without reference to any
principles of the conflicts of laws). The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
13. Entire Agreement. This Warrant, together with all attachments
hereto, constitutes the entire understanding and agreement of the Company and
the holder of this Warrant with respect to the subject matter hereof and
supersedes all prior understandings and agreements with respect to such matters.
Dated: July __, 1999 VERSANT CORPORATION
By:
--------------------------
Name:
------------------------
Title:
-----------------------
[SIGNATURE PAGE TO WARRANT.]
21
<PAGE> 7
ATTACHMENT A TO WARRANT
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
To: VERSANT CORPORATION
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise the purchase rights represented by such Warrant for, and to
purchase thereunder, ___________* shares of Common Stock of VERSANT CORPORATION,
and herewith makes payment of $___________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to , whose
address is .
--------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
--------------------------------------------
(Print Warrantholder Name)
--------------------------------------------
--------------------------------------------
(Address)
Dated:
- ------------------
* Insert here the number of shares as to which the Warrant is being exercised.
22
<PAGE> 8
ATTACHMENT B TO WARRANT
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ______________ the right represented by the within Warrant to purchase
shares of Common Stock of VERSANT CORPORATION, to which the within Warrant
relates, and appoints __________________________ Attorney to transfer such right
on the books of _________________________ with full power of substitution in the
premises.
--------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
---------------------------------------------
(Print Warrantholder Name)
---------------------------------------------
---------------------------------------------
(Address)
Dated:
------------
23
<PAGE> 1
EXHIBIT 10.03
EXHIBIT E
DEBT CANCELLATION AGREEMENT
The Company and Vertex Technology Fund, Ltd entered into a Note Purchase
Agreement dated October 16, 1998 along with related documentation. The parties
agreed on the Effective Date of the Preferred Stock and Warrant Purchase
Agreement (the "Agreement") that all outstanding obligations of the Company
pursuant to the Note Purchase Agreement will be cancelled in consideration of
the issuance of Preferred Stock and Warrants pursuant to such Agreement.
Therefore:
- - The convertible secured subordinated promissory note of the Company to
Vertex Technology Fund, Ltd dated October 16, 1998 is deemed satisfied in
full, the Debt is cancelled and the holder shall tender the original of such
note to the Company at such time.
- - The Security Agreement dated October 16, 1998 between the parties is
terminated along with all security interests created thereby and the
beneficiary of such interests shall execute all releases of such interests
upon request by the Company.
All capitalized terms have the meanings ascribed to them in the Preferred Stock
and Warrant Purchase Agreement dated June 28, 1999, unless otherwise
specifically provided.
VERSANT CORPORATION VERTEX TECHNOLOGY FUND, LTD
By: By:
------------------------------- --------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
---------------------------- -----------------------
34
<PAGE> 1
EXHIBIT 10.04
EXHIBIT F
SUPPLEMENT TO REGISTRATION RIGHTS AGREEMENT
The Company and Vertex Technology Fund, Ltd entered into a Note Purchase
Agreement dated October 16, 1998 along with related documentation, including a
Registration Rights Agreement. In connection with the Preferred Stock and
Warrant Purchase Agreement (the "Agreement"), the parties agree to amend such
Registration Rights Agreement with respect to the parties to this Agreement as
follows:
- - "Purchasers" shall mean collectively Investors, their assignees and
transferees, and individually each Investor and any assignee or transferee
of such Investor.
- - "Registrable Securities" shall mean the Common Stock issuable upon
conversion of the Shares or upon exercise of the Warrants subject to the
same exclusions as set forth in Section 1.7 of the Registration Rights
Agreement.
- - "Registration Termination Date" shall mean with respect to any Registrable
Securities the earliest of July 11, 2002 or the dates other than October 15,
2001 identified in Section 1.9 of the Registration Rights Agreement.
All capitalized terms have the meanings ascribed to them in the Preferred Stock
and Warrant Purchase Agreement dated June 28, 1999, including the term
"Closing", unless otherwise specifically provided. The Registration Rights
Agreement is in all other respects affirmed.
VERSANT CORPORATION VERTEX TECHNOLOGY FUND, LTD
By: By:
------------------------------- --------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
---------------------------- -----------------------
ADDITIONAL INVESTOR ADDITIONAL INVESTOR
By: By:
------------------------------- --------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
---------------------------- -----------------------
35
<PAGE> 2
ADDITIONAL INVESTOR ADDITIONAL INVESTOR
By: By:
------------------------------- --------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
---------------------------- -----------------------
36
