-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QjEAsovm0y8e+shfdHBr69lKfqt89odNrtdSXDr5Z3S5fMDvbRKMoheF5ETftlNW Jj0GnjXy0EZ/BVRsf/yRWw== 0000891618-99-003122.txt : 19990714 0000891618-99-003122.hdr.sgml : 19990714 ACCESSION NUMBER: 0000891618-99-003122 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19990712 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990713 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VERSANT CORP CENTRAL INDEX KEY: 0000865917 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943079392 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-28540 FILM NUMBER: 99663783 BUSINESS ADDRESS: STREET 1: 6539 DUMBARTON CIRCLE CITY: FREMONT STATE: CA ZIP: 94555 BUSINESS PHONE: 5107891500 MAIL ADDRESS: STREET 1: 6539 DUMBARTON CIRCLE CITY: FREMONT STATE: CA ZIP: 94555 FORMER COMPANY: FORMER CONFORMED NAME: VERSANT OBJECT TECHNOLOGY CORP DATE OF NAME CHANGE: 19960428 8-K 1 FORM 8-K 1 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) 2 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. 2 3 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS EXHIBITS
Exhibit - ------- 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.
3 4 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) 4 5 INDEX TO EXHIBITS
EXHIBITS DESCRIPTION - -------- ----------- 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.
EX-3.01 2 REGISTRANT'S CERTIFICATE OF DETERMINATION 1 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. 24 2 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, 25 3 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 26 4 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 27 5 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. 28 6 (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 29 7 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 30 8 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; 31 9 (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 EX-10.01 3 PREFERRED STOCK AND WARRANT AGREEMENT 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 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. -2- 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 -3- 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. -4- 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 -5- 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. -6- 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 -7- 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 -8- 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 -9- 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 -10- 11 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- 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- 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- 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- 15 EXHIBIT A SCHEDULE OF INVESTORS
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* --------- ------------- ----------- ------------ 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
*subject to adjustment ** Vertex' Warrant -15- EX-10.02 4 FORM OF COMMON STOCK PURCHASE WARRANT 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 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 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 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 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 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 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 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 EX-10.03 5 DEBT CANCELLATION AGREEMENT 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 EX-10.04 6 SUPPLEMENT TO REGISTRATION RIGHTS AGREEMENT 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 2 ADDITIONAL INVESTOR ADDITIONAL INVESTOR By: By: ------------------------------- -------------------------- Name: Name: ----------------------------- ------------------------- Title: Title: ---------------------------- ----------------------- 36 -----END PRIVACY-ENHANCED MESSAGE-----