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EXHIBIT 2.01
Acquisition Agreement dated as of March 26, 1997 by and between
Versant Object Technology Corporation and ISAR-Vermogensverwaltung
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement") is entered into as of
March 26, 1997 (the "Effective Date"), by and between Versant Object Technology
Corporation, a California corporation ("Versant"), ISAR-Vermogensverwaltung GbR
mbH, a German limited liability partnership within the meaning of the German
Civil Code ("ISAR"), which is the sole shareholder of Versant Object Technology
GmbH.
RECITALS
A. WHEREAS, Versant Object Technology GmbH, a German limited
liability company (which is hereinafter referred to, collectively with its
wholly owned French and British subsidiaries, as "Versant Europe") is the
independent European distributor of Versant.
B. WHEREAS, pursuant to that certain Joint Venture Agreement
between Versant and ISAR, dated July 26, 1995 (the "Joint Venture Agreement"),
Versant has the option to purchase Versant Europe.
C. WHEREAS, the parties desire that Versant exercise its option
under the Joint Venture Agreement and acquire 100% of the outstanding equity of
Versant Europe from ISAR pursuant to the terms and conditions set forth herein.
THEREFORE, the parties hereto agree as follows:
1. ACQUISITION
Subject to the terms and conditions set forth in this Agreement, at
the Closing (as defined in Section 5), (i) ISAR shall transfer the quotas in
the total amount of 280,000 DM, being all the quotas of Versant Object
Technology GmbH (the "Versant Europe Quotas") to Versant, (ii) Versant shall
pay an aggregate of US $2,000,000.25 in cash to ISAR, (iii) pursuant to the
escrow provisions of Section 6.3, Versant shall withhold the escrow amount that
would otherwise be paid to ISAR and (iv) Versant shall issue an aggregate of
167,545 shares of Versant Common Stock, no par value (the "Versant Shares") to
ISAR. These transactions, together with the transactions contemplated by the
Quota Transfer Agreement dated of even date herewith and attached hereto as
Exhibit A between Versant and ISAR (the "Quota Transfer Agreement"), pursuant
to which the Versant Europe Quotas are assigned to Versant, are hereinafter
referred to as the "Acquisition."
2. BUSINESS REPRESENTATIONS AND WARRANTIES OF ISAR TO VERSANT
ISAR hereby represents and warrants to Versant that:
2.1 Title. ISAR owns and holds good and valid title to the
Versant Europe Quotas, free and clear of any liens, security interests,
restrictions, options or encumbrances. The Versant Europe Quotas are being
transferred to Versant in compliance with all applicable German national and
state securities laws. Neither ISAR nor any of its partners has any ownership
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interest in Versant Europe other than the Versant Europe Quotas. Effective
upon the Closing, Versant will own 100% of the equity of Versant Europe.
2.2 Organization and Good Standing.
2.2.1 Versant Object Technology GmbH is a limited liability
company duly incorporated under the laws of Germany, is validly existing under
the laws of Germany and has the corporate power and authority to own, operate
and lease its properties and to carry on its business as now conducted.
Versant Object Technology GmbH has qualified to do business in any jurisdiction
where required to do so, except where the failure to qualify will not have a
material adverse impact on the business of Versant Europe. Versant Object
Technology GmbH does not own any property or have any employees in any country
other than Germany, France and the United Kingdom.
2.2.2 Versant Object Technology SARL is a company duly
incorporated under the laws of the Republic of France, is validly existing
under the laws of the Republic of France and has the corporate power and
authority to own, operate and lease its properties and to carry on its business
as now conducted. Versant Object Technology SARL has qualified to do business
in any jurisdiction where required to do so, except where the failure to
qualify will not have a material adverse impact on the business of Versant
Europe. Versant Object Technology SARL does not own any property or have any
employees in any country other than France.
2.2.3 Versant Object Technology Limited is a company duly
incorporated under the laws of the United Kingdom, is validly existing under
the laws of the United Kingdom and has the corporate power and authority to
own, operate and lease its properties and to carry on its business as now
conducted. Versant Object Technology Limited has qualified to do business in
any jurisdiction where required to do so, except where the failure to qualify
will not have a material adverse impact on the business of Versant Europe.
Versant Object Technology Limited does not own any property or have any
employees in any country other than the United Kingdom.
2.3 Power, Authorization and Validity.
2.3.1 ISAR has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement, and
all agreements to which ISAR is a party that are to be executed prior to or
simultaneously with executing this Agreement including the Quota Transfer
Agreement. ISAR has obtained all necessary consents to enter into and perform
their obligations under this Agreement and the Quota Transfer Agreement, and
ISAR has consolidated all voting authorizations and consents required to enable
ISAR to enter into this Agreement and the Quota Transfer Agreement, including,
if applicable, pursuant to Paragraph 1365 BGB.
2.3.2 No filing, authorization or approval with or from any
German, French, British or other European governmental authorities is necessary
to enable ISAR to enter into, and to perform its obligations under, this
Agreement and the Quota Transfer Agreement.
2.3.3 This Agreement and the Quota Transfer Agreement are,
or when executed by ISAR and notarized under German law will be, valid and
binding obligations of ISAR
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enforceable in accordance with their respective terms, except as to the effect,
if any, of (a) applicable bankruptcy and other similar laws affecting the
rights of creditors generally and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
2.4 Capitalization.
2.4.1 As of the date hereof, the authorized share capital
of Versant Object Technology GmbH is as follows: quotas in the total amount of
280,000 DM, fully subscribed by ISAR. The Versant Europe Quotas have been duly
authorized and are validly issued, are fully paid and nonassessable, are not
subject to any right of rescission and have been offered, issued, sold and
delivered by Versant Europe in compliance with all registration or
qualification requirements (or applicable exemptions therefrom), under
securities laws of Germany or other applicable jurisdictions. The Versant
Europe Quotas are fully paid up and have not been repaid. There are no
options, warrants, conversion privileges or preemptive or other rights or
agreements outstanding entitling any third party to purchase or otherwise
acquire any Versant Europe Quotas or interest therein whether currently
existing or not, and there is no liability for dividends accrued or declared
but unpaid. To the extent that any liability exists (or will exist) for
dividends accrued in the current or previous fiscal years, ISAR hereby assigns
such dividends to Versant. There are no voting agreements, rights of first
refusal or other restrictions (other than normal restrictions on transfer under
applicable securities laws) applicable to the Versant Europe Quotas.
2.4.2 As of the date hereof, the authorized share capital
of Versant Object Technology SARL is as follows: 50,000 French Francs (of which
50,000 French Francs are outstanding as of the date hereof, all of which are
held by Versant Object Technology GmbH, free and clear of any liens, security
interests, restrictions, options or encumbrances), which has been duly
authorized and is validly issued, is fully paid and nonassessable, is not
subject to any right of rescission and has been offered, issued, sold and
delivered by Versant Object Technology SARL in compliance with all registration
or qualification requirements (or applicable exemptions therefrom), under
securities laws of the Republic of France or other applicable jurisdictions.
There are no options, warrants, conversion privileges or preemptive or other
rights or agreements outstanding entitling any third party to purchase or
otherwise acquire any security of Versant Object Technology SARL whether
currently existing or not, and there is no liability for dividends accrued or
declared but unpaid. There are no voting agreements, rights of first refusal
or other restrictions (other than normal restrictions on transfer under
applicable securities laws) applicable to the outstanding securities of Versant
Object Technology SARL.
2.4.3 As of the date hereof, the authorized share capital
of Versant Object Technology Limited is as follows: L.1,000 (of which L.1 is
outstanding as of the date hereof, all of which are held by Versant Object
Technology GmbH, free and clear of any liens, security interests, restrictions,
options or encumbrances), which has been duly authorized and is validly issued,
is fully paid and nonassessable, is not subject to any right of rescission and
has been offered, issued, sold and delivered by Versant Object Technology
Limited in compliance with all registration or qualification requirements (or
applicable exemptions therefrom), under securities laws of the United Kingdom
or other applicable jurisdictions. There are no options, warrants, conversion
privileges or preemptive or other rights or agreements outstanding entitling
any third party to purchase or otherwise acquire any security of Versant Object
Technology Limited whether currently existing or not, and there is no liability
for dividends accrued or declared but
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unpaid. There are no voting agreements, rights of first refusal or other
restrictions (other than normal restrictions on transfer under applicable
securities laws) applicable to the outstanding securities of Versant Object
Technology Limited.
2.5 Subsidiaries. Versant Object Technology GmbH does not have
any subsidiaries or any equity interest, direct or indirect, in any
corporation, partnership, joint venture or other business entity, except for
Versant Object Technology SARL and Versant Object Technology Limited.
2.6 No Violation of Existing Agreements. Neither the execution
and delivery of this Agreement nor the Quota Transfer Agreement, nor the
consummation of the transactions contemplated hereby, will conflict with, or
(with or without notice or lapse of time, or both) result in a termination,
breach or violation of (a) any provision of the Articles of Association or any
shareholder resolution, or the Bylaws of the Advisory Board, of Versant Europe,
as currently in effect; (b) any instrument or contract to which Versant Europe,
ISAR or any of its partners are parties or by which Versant Europe, ISAR or any
of its partners are bound; or (c) any German, French or British national, State
or local judgment, writ, decree, order, statute, rule or regulation applicable
to Versant Europe or its assets or properties.
2.7 Litigation. There is no action, proceeding, claim or
investigation pending against Versant Europe or ISAR, to the extent it relates
to Versant Europe, by or before any court or administrative agency; no such
action, proceeding, claim or investigation has been threatened; and no event or
circumstance exists which is likely to give rise to any such action.
2.8 Versant Europe Financial Statements. Versant Europe has
delivered to Versant the Management accounts for the years ended December 31,
1996 and 1995, all of which have been reviewed by Arthur Andersen, Versant
Europe's accountants, and attached hereto as Schedule 2.8A (the "Audited
Financial Statements") and Versant Europe's draft Management Accounts for the
period ended February 28, 1997 and its internally prepared, unaudited combined
balance sheet as of February 28, 1997 (the "Balance Sheet Date"), attached
hereto as Schedule 2.8B and collectively with the Audited Financial Statements
referred to hereinafter as the "Financial Statements." The Financial
Statements: (a) are in accordance with the books and records of Versant Europe;
(b) fairly present the financial condition of Versant Europe at the respective
dates therein indicated and the results of operations for the respective
periods therein specified; and (c) in the case of the Audited Financial
Statements only, have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis. Versant Europe
has no debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not
reflected, reserved against or disclosed in the Financial Statements, except
for those obligations that have been incurred after the Balance Sheet Date
either in the ordinary course of its business, consistent with past practice,
or that are not material (i.e., exceed 10,000 DM), individually or in the
aggregate. Versant Europe has not entered into any transaction with Deutsche
Telekom that would impair or affect the value of the license that Versant
Europe purchased from Versant for resale to Deutsche Telekom, which license is
listed as an asset on the Financial Statements, and Versant Europe and ISAR are
not aware of any facts or circumstances that would impair the value of such
asset or would require a reserve to be taken against such asset.
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2.9 Books and Records. The books, records and accounts of Versant
Europe: (a) are in all material respects true and correct; (b) are stated in
reasonable detail and accurately and fairly reflect the transactions and
dispositions of the assets of Versant Europe; and (c) have been maintained in
accordance with good business practices on a consistent basis with prior years.
2.10 Taxes and Social Security Contributions. Versant Europe has
filed all tax, social security and other information returns required to be
filed, has paid all taxes and social security contributions required to be paid
in respect of all periods for which returns have been filed, has established an
adequate accrual or reserve for the payment of all taxes and social security
contributions payable in respect of all periods ending on or prior to the
Balance Sheet Date, has made all necessary estimated tax payments and social
security contributions to the extent payment is due and has no liability for
taxes or social security contributions in excess of the amount so paid or
accruals or reserves so established in the Financial Statements, except with
respect to transactions occurring after the Balance Sheet Date. True and
complete copies of all such tax, social security and other information returns
requested by Versant have been provided by Versant Europe to Versant. No tax
returns of Versant Europe have ever been audited by the German Federal Finance
Authority or any other taxing agency or authority. For the purposes of this
Section, the terms "tax" and "taxes" include without limitation all corporation
tax, income tax, capital gains tax, inheritance tax, value added tax, trade
tax, wealth tax (Vermogenssteuer) customs duty, excise duty, insurance, pay as
you earn and stamp duty, franchise, property, sales, use, consumption,
employment, license, payroll, occupation, recording, and any other tax, duty,
levy or impost imposed by any statutory, governmental or municipal authority
whatsoever in Europe (whether payable directly or by withholding), and, with
respect to such taxes, any estimated tax, any tax arising from hidden
distributions of profits, interest and penalties or additions to tax and
interest on such penalties and additions to tax. Versant Europe will not incur
any tax or other charge imposed by the German or other taxing authorities as a
result of the Acquisition.
2.11 Title to Properties. Versant Europe has good and marketable
title to the current assets and fixed assets as shown on the balance sheet as
of the Balance Sheet Date included in the Financial Statements, free and clear
of all material liens, charges or encumbrances (other than for taxes not yet
due and payable). The machinery and equipment included in such properties are
in good condition and repair, normal wear and tear excepted, and all leases of
real or personal property to which Versant Europe is a party are in good
standing in all material respects and afford Versant Europe peaceful and
undisturbed possession of the subject matter of the lease in all material
respects during the term of the lease. There is no violation or notice of
violation of any zoning, building, safety or environmental ordinance,
regulation or requirement or other law, bylaw or regulation applicable to the
operation of owned or leased properties, the violation of which could
reasonably have a material adverse effect on Versant Europe's business.
2.12 Absence of Certain Changes. Since the Balance Sheet Date,
except as contemplated by this transaction, Versant Europe has carried on its
business in the ordinary course substantially in accordance with the procedures
and practices in effect prior to the Balance Sheet Date, and since the Balance
Sheet Date there has not been with respect to Versant Europe:
(a) any change in the financial condition, properties,
assets, liabilities or operations of Versant Europe which change by itself or
in conjunction with all other such
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changes, whether or not arising in the ordinary course of business, has had or
can reasonably be expected to have a material adverse effect on Versant Europe;
(b) any purchase or sale or other disposition, any
capital expenditure or commitment therefor or any agreement or other
arrangement for the purchase, sale or other disposition, of any of the
properties or assets of Versant Europe other than in the ordinary course of
business or in amounts less than 10,000 DM;
(c) any declaration, setting aside or payment of any
dividend on, or the making of any other distribution in respect of, the shares
of Versant Europe, any split, combination or recapitalization of the capital
stock of Versant Europe or any direct or indirect redemption, purchase or other
acquisition of the share of Versant Europe, or any repayment of loans made to
Versant Europe by ISAR;
(d) any material change with respect to the management,
supervisory, development or other key personnel of Versant Europe;
(e) any material labor dispute or claim of material
unfair labor practices, any change in the compensation payable or to become
payable to any of Versant Europe's officers or employees or any bonus payment
or arrangement made to or with any of such officers or employees; or
(f) any obligation or liability incurred by Versant
Europe to any of its officers, directors or ISAR or any of its partners or any
loans or advances made to or from any of its officers, directors or ISAR or any
of its partners, except normal compensation and expense allowances payable to
officers consistent with past practices, or except as set forth on Schedule
2.16.
2.13 Agreements and Commitments.
2.13.1 Except as set forth on Schedule 2.13.1 hereto,
Versant Europe is not a party or subject to any oral or written agreement,
obligation or commitment, including, without limitation, any license agreement,
employment agreement, joint venture agreement or arrangement or any other
agreement that involves a sharing of profits with other persons, loan or other
indebtedness, contract containing covenants purporting to limit Versant
Europe's freedom to compete in any line of business in any geographic area or
agreement regarding the purchase or sale of securities. Versant Europe has no
obligations to deliver shares of Versant to any employee or third party,
whether upon the exercise of options or otherwise.
2.13.2 All the agreements set forth on Schedule 2.13.1 are
valid and in full force and effect in all material respects and a true and
complete copy of each has been delivered to Versant. Neither Versant Europe
nor any other party is in breach or default in any material respect under the
terms of any of these agreements. Versant Europe has no material liability for
renegotiation of government contracts or subcontracts, if any.
2.14 Intellectual Property. Versant Europe owns or has the right
to use all trademarks, service marks, trade names, copyrights, trade secrets,
patents, proprietary rights or other
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intellectual property (collectively, "Intellectual Property") necessary for or
used in the conduct of its business. The business of Versant Europe as
presently conducted and as planned to be conducted does not cause Versant
Europe to infringe or violate any Intellectual Property of any other person.
Versant Europe has not received any claim or notice of infringement or
potential infringement of the Intellectual Property of any other person.
Versant Europe is not using any confidential information or trade secrets of
any former employer of any past or present employees.
2.15 Compliance with Laws. Versant Europe has complied, or is in
full compliance, in all material respects, with all applicable laws,
ordinances, regulations and rules, and all orders, writs, injunctions, awards,
judgments and decrees, applicable to Versant Europe or to the assets,
properties and business of Versant Europe, including, without limitation: (a)
all German and other applicable laws and regulations; (b) any import/export
laws and regulations promulgated thereunder and all other laws, regulations,
rules, orders, writs, injunctions, judgments and decrees applicable to the
export or re-export of controlled commodities or technical data; and (c) any
immigration control laws. Versant Europe has received all permits and
approvals from, and have made all filings with, third parties, including
government agencies and authorities, that are necessary in connection with its
present business.
2.16 Certain Transactions and Agreements. None of the officers or
directors of Versant Europe, nor any spouse or minor child of any officer or
director, nor ISAR or any of its partners, has or had a direct or indirect
interest (including without limitation participation in a company) in any
contract or informal arrangement with Versant Europe involving 10,000 DM or
more in value, except for compensation for services as an officer, director or
employee of Versant Europe as described in Schedule 2.17.6, or except as set
forth on Schedule 2.16.
2.17 Employees.
2.17.1 Versant Europe has no employment contract or material
consulting agreement currently in effect that is not terminable on notice
(other than agreements with the sole purpose of providing for the
confidentiality of proprietary information, assignment of inventions or
containing only non-competition obligations), subject to compliance with
German, French or British employment laws, or that provides an acceleration of
benefits due to the Acquisition, or whose lawful termination would result in
any payment to the terminated employee greater than the minimum amounts
required by German, French or British law upon termination of an employee,
except to the extent disclosed in employment agreements provided to Versant
prior to the date of execution of this Agreement. All officers, employees and
consultants of Versant Europe have executed and delivered to Versant Europe an
agreement regarding the protection of proprietary information and the
assignment of inventions to Versant Europe; copies of the forms of all such
agreements have been delivered or made available to Versant.
2.17.2 Versant Europe has never been and is not now subject
to a union organizing effort, and Versant Europe's labor relations with its
employees are good. Versant Europe and ISAR have no knowledge of any facts
indicating that the consummation of the transactions contemplated hereby may
have a material adverse effect on such labor relations, and have no knowledge
that any of Versant's key employees intend to leave their employ.
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2.17.3 Schedule 2.17.3 contains a list of all employment
agreements or pension, retirement, disability, medical, dental or other health
plans, life insurance or other death benefit plans, profit sharing, deferred
compensation agreements, stock options, bonus or other incentive plans,
vacation, sick, holiday or other paid leave plans, severance plans or other
similar employee benefit plans maintained by Versant Europe (collectively, the
"Employee Plans"). Each of the Employee Plans, and their administration, is,
in all material respects, in compliance with all applicable national,
municipal, local and other governmental laws and ordinances, orders, rules and
regulations and Versant Europe is in full compliance with the terms of all of
the Employee Plans.
2.17.4 All contributions due have been made and all accruals
have been included in the Financial Statements with respect to any pension or
profit sharing plan maintained by Versant Europe except those contributions
accruing after the Balance Sheet Date in the ordinary course.
2.17.5 No employee of Versant Europe is in violation of (a)
any material term of any employment contract, patent disclosure agreement or
non-competition agreement or (b) any material term of any other contract or
agreement, or any restrictive covenant, relating to the right of any such
employee to be employed by Versant Europe or to use trade secrets or
proprietary information of others. The mere fact of employment of any employee
of Versant Europe does not subject Versant Europe to any liability to any third
party.
2.17.6 A list of all ongoing employees, officers and
consultants of Versant Europe and their current compensation (salary and
bonuses) is set forth in Schedule 2.17.6. and which are fully detailed in the
Employment Agreements, which have been provided by Versant Europe to Versant
prior to the date of execution of this Agreement.
2.18 Corporate Documents. Versant Europe and ISAR have made
available to Versant for examination all documents and information listed in
the Schedules called for by this Agreement and all documents and information
requested by Versant.
2.19 No Brokers. Neither Versant Europe nor ISAR are obligated for
the payment of fees or expenses of any investment banker, broker or finder in
connection with the origin, negotiation or execution of this Agreement or in
connection with any transaction contemplated hereby.
2.20 Disclosure. Neither this Agreement, its exhibits and
schedules, nor any of the certificates or documents delivered by, or to be
delivered by, Versant Europe or ISAR to Versant under this Agreement, taken
together, contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements contained herein
and therein, in light of the circumstances under which such statements were
made, not misleading.
3. INVESTMENT REPRESENTATIONS AND WARRANTIES AND CERTAIN AGREEMENTS OF
ISAR
ISAR hereby represents and warrants to, and agrees with, Versant that:
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3.1 Acquisition for Own Account. The Versant Shares to be
acquired by ISAR hereunder will be acquired for investment for ISAR'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 Securities Act of 1933, as
amended (the "Securities Act"), and ISAR has no present intention of selling,
granting any participation in, or otherwise distributing the same. ISAR also
represents that ISAR has not been formed for the specific purpose of acquiring
Versant Shares.
3.2 Disclosure of Information. ISAR 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 Versant Shares to be acquired
by ISAR under this Agreement. ISAR further has had an opportunity to ask
questions and receive answers from Versant regarding the terms and conditions
of the offering of the Versant Shares and to obtain additional information (to
the extent Versant possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished
to ISAR or to which ISAR had access. The foregoing, however, does not in any
way limit or modify the representations and warranties made by Versant in
Section 4.
3.3 Investment Experience. ISAR understands that the acquisition
of the Versant Shares involves substantial risk. ISAR: (i) has experience as
an investor in securities of companies similar to Versant and acknowledges that
ISAR is able to fend for itself, can bear the economic risk of ISAR's
investment in the Versant Shares and has such knowledge and experience in
financial or business matters that ISAR is capable of evaluating the merits and
risks of this investment in the Versant Shares and protecting its own interests
in connection with this investment and/or (ii) has a preexisting personal or
business relationship with Versant and certain of its officers, directors or
controlling persons of a nature and duration that enables ISAR to be aware of
the character, business acumen and financial circumstances of such persons.
3.4 Accredited Investor Status. ISAR is an "accredited investor"
within the meaning of Regulation D promulgated under the Securities Act.
3.5 Restricted Securities. ISAR understands that the Versant
Shares are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from Versant in a transaction not involving
a public offering and that under the Securities Act and applicable regulations
thereunder such securities may be resold without registration under the
Securities Act only in certain limited circumstances. In this connection, ISAR
represents that ISAR is familiar with Rule 144 of the U.S. Securities and
Exchange Commission, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. ISAR understands that
the Company is under no obligation to register any of the securities sold
hereunder, except as provided in Section 7.6 of the Joint Venture Agreement,
which shall survive the Closing.
3.6 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, ISAR further agrees not to make
any disposition of all or any portion of the Versant Shares unless and until:
(a) there is then in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
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(b) (i) ISAR shall have notified Versant of the
proposed disposition and shall have furnished Versant with a statement of the
circumstances surrounding the proposed disposition, and (ii) ISAR shall have
furnished Versant, at the expense of ISAR or its transferee, with an opinion of
counsel, reasonably satisfactory to Versant, that such disposition will not
require registration of such securities under the Securities 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 Versant Shares in compliance with SEC Rule 144 or Rule
144A; or (ii) for any transfer of any Versant Shares by a Partner that is a
partnership or a corporation to (A) a partner of such partnership or a
shareholder of such corporation, (B) a retired partner of such partnership who
retires after the date hereof, (C) the estate of any such partner or
shareholder, or (iii) for the transfer by gift, will or intestate succession by
any Partner to his or her spouse or lineal descendants or ancestors or any
trust for any of the foregoing; provided that in each of the foregoing cases
the transferee agrees in writing to be subject to the terms of this Section 3
(other than Section 3.4) to the same extent as if the transferee were an
original Partner hereunder.
3.7 Market Stand-Off. ISAR hereby agrees not to sell, transfer or
otherwise modify its economic interest in the Versant Shares for a period of
one year from the Effective Date. ISAR further agrees to the imposition of
stop transfer instructions with respect to the Versant Shares acquired by ISAR
until the end of such period.
3.8 Legends. It is understood that the certificates evidencing
the Versant Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
(b) THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN MARKET STANDOFF AND OTHER TRANSFER
RESTRICTIONS PURSUANT TO AN AGREEMENT EXECUTED BY THE HOLDER
OF THESE SECURITIES, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE ISSUER. THE HOLDER OF THESE
SECURITIES HAS
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CONSENTED TO THE ENTRY OF STOP TRANSFER INSTRUCTIONS WITH THE
ISSUER'S TRANSFER AGENT AGAINST THE TRANSFER OF THESE
SECURITIES TO ENFORCE THE PROVISIONS OF SUCH AGREEMENT.
The legend set forth above shall be removed by Versant from any certificate
evidencing Versant Shares upon delivery to Versant of an opinion by counsel,
reasonably satisfactory to Versant, that a registration statement under the
Securities Act is at that time in effect with respect to the legended security
or that such security can be freely transferred in a public sale without such a
registration statement being in effect and that such transfer will not
jeopardize the exemption or exemptions from registration pursuant to which
Versant issued the Versant Shares.
4. REPRESENTATIONS AND WARRANTIES OF VERSANT TO ISAR
Versant hereby represents and warrants to ISAR that:
4.1 Power, Authorization and Validity.
4.1.1 Versant has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement, and
all agreements to which Versant is a party that are required to be executed
prior to or simultaneously with executing this Agreement including the Quota
Transfer Agreement. Versant has obtained all necessary consents to enter into
and perform its obligations under this Agreement and the Quota Transfer
Agreement.
4.1.2 No filing, authorization or approval, with or from
United States governmental authorities, is necessary to enable Versant to enter
into, and to perform its obligations under, this Agreement and the Quota
Transfer Agreement.
4.1.3 This Agreement and the Quota Transfer Agreement are,
or when executed by Versant will be, valid and binding obligations of Versant
enforceable in accordance with their respective terms, except as to the effect,
if any, of (a) applicable bankruptcy and other similar laws affecting the
rights of creditors generally and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
4.2 Valid Issuance of Versant Common Stock. The Versant Shares
when issued and delivered in accordance with this Agreement, will be duly and
validly issued, fully paid and nonassessable and, subject to the
representations of ISAR set forth in Section 3, will be issued to ISAR in
compliance with all applicable registration or qualification requirements or
applicable exemptions therefrom under the federal and California securities
laws of the United States.
4.3 Capitalization. The authorized capital stock of Versant
consists of 30,000,000 shares of Versant Common Stock, no par value, of which
8,793,200 shares were issued and outstanding as of February 28, 1997 and
3,000,000 shares of Versant Preferred Stock, no par value, of which there were
no shares issued and outstanding as of February 28, 1997.
4.4 No Violation of Existing Agreements. Neither the execution
and delivery of this Agreement nor the Quota Transfer Agreement, nor the
consummation of the transactions contemplated hereby, will conflict with, or
(with or without notice or lapse of time, or both)
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result in a termination, breach or violation of (a) any provision of the
Articles of Incorporation or Bylaws of Versant, as currently in effect; (b) any
instrument or contract to which Versant is a party or by which Versant is
bound; or (c) any United States national, State or local judgment, writ,
decree, order, statute, rule or regulation applicable to Versant or its assets
or properties.
4.5 Disclosure of Information. Versant has received or has had
full access to all the information it considers necessary or appropriate to
make an informed decision with respect to the Acquisition. Versant further has
had an opportunity to ask questions and receive answers from Versant Europe and
ISAR regarding the terms and conditions of the Acquisition and to obtain
additional information (to the extent Versant Europe or ISAR possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Versant or to which Versant
had access. The foregoing, however, does not in any way limit or modify the
representations and warranties made by ISAR in Sections 2 and 3.
5. CLOSING MATTERS
5.1 Pre-Closing Conditions. Effective on the Closing, the loan
made by ISAR to Versant Europe in the approximate amount of $1,800,200, which
is listed on the Financial Statements as "Shareholder Loan," is hereby forgiven
and is considered a contribution to the capital of Versant Europe.
5.2 The Closing. The closing of the Acquisition (the "Closing")
will take place at the offices of Dr. Bohrer, Brienner Strasse 25, 80333,
Munchen, Germany, on the Effective Date.
5.3 Deliveries at Closing.
5.3.1 At the Closing, Versant and ISAR will execute the
Quota Transfer Agreement in the form attached hereto as Exhibit A, and the
Versant Europe Quotas shall be transferred to Versant from ISAR by a notarial
deed, pursuant to the Quota Transfer Agreement.
5.3.2 Upon execution by ISAR and Versant of the Quota
Transfer Agreement as provided in Section 5.3.1, Versant will direct Chase
Mellon Shareholder Services, L.L.C. to issue to ISAR two share certificates
registered in the name of ISAR for the Versant Shares. One share certificate,
in the amount of 150,790 shares of Common Stock will be delivered to ISAR, and
the second share certificate, in the amount of 16,755 shares of Common Stock,
will be delivered to Silicon Valley Bank's office at 1731 Embarcadero Road,
Palo Alto, California 94303 ("SVB"). The latter certificate shall be held by
SVB pursuant to the terms of Article 5.5 of this Agreement.
5.3.3 Upon execution by ISAR and Versant of the Quota
Transfer Agreement as provided in Section 5.3.1, Versant will pay ISAR the cash
amount due to ISAR under this Agreement, which does not include cash deposited
with SVB pursuant to the escrow provisions set forth in Articles 5.5 and 6.3 of
this Agreement.
5.4 Payment of Notarial Costs. Versant and ISAR shall each pay
one-half of all notarial costs incurred by reason of the Acquisition.
5.5 Escrow Account Arrangement. Prior to the execution of the
Escrow arrangement contemplated in Article 6.3 of this Agreement, an interest
bearing account with SVB will be
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opened in the names of Versant and ISAR. After this account has been opened
and immediately after the execution of both this Agreement and of the Quota
Transfer Agreement, Versant shall deposit the escrow portion of the cash
payment as set out in Article 6.3 of this Agreement into such account. SVB
shall be instructed that both parties to the Agreement must consent in writing
to any withdrawals. Further, SVB shall also open a safe deposit box in the
names of Versant and of ISAR. Versant shall deposit the share certificate of
Versant Object Technology Common Stock designated as the escrow amount into
such safe deposit box. SVB shall be instructed that both Versant and ISAR must
consent in writing to removal of such Certificate. Versant further agrees to
do all acts, which are consistent with this Agreement, to provide ISAR with all
stockholder rights ISAR is entitled to as a result of being granted the shares,
designated as escrow shares, set out in this Agreement. ISAR and Versant agree
that at such time that the escrow arrangement contemplated in Article 6.3 of
this agreement is in effect, ISAR and Versant shall transfer the funds held by
SVB set out herein, and the stock certificate held by SVB to such escrow
account.
6. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
6.1 Survival of Representations. Unless otherwise specified
herein, all representations and warranties of Versant and ISAR contained in
this Agreement will survive the Closing and remain operative and in full force
and effect until December 31, 1998, regardless of any investigation made by or
on behalf of the parties to this Agreement.
6.2 Agreement to Indemnify. ISAR will indemnify and hold harmless
Versant and each of its officers, directors, agents and employees, and each
person, if any, who controls or may control Versant within the meaning of the
Securities Act from and against any and all claims, demands, actions, causes of
actions, losses, costs, damages, liabilities and expenses including, without
limitation, reasonable legal fees (hereinafter "Damages") arising out of (a)
any misrepresentation or breach of or default in connection with any of the
representations, warranties and covenants given or made by ISAR in this
Agreement or any certificate, document or instrument delivered by or on behalf
of ISAR pursuant this Agreement or the Quota Transfer Agreement; and (b) any
breach of the provisions set forth in Section 7.3.2 of the Joint Venture
Agreement. In the event Versant has a claim for Damages under this Section
6.2, Versant will notify ISAR of such claim in writing. In no event shall
ISAR's liability for Damages exceed $500,000, except with respect to: (a)
fraud; (b) the representations and warranties contained in Section 2.4; and (c)
the representations and warranties contained in Section 2.7.
6.3. Escrow. At the Closing, Versant will withhold cash in the
amount of $200,000 and 16,755 shares of the Versant Shares, which together
represent 10% of the aggregate purchase price payable for the Versant Europe
Quotas in accordance with Section 1, to be held as security for ISAR's
indemnification obligations under Section 6.2 until December 31, 1997., On
December 31, 1997, any amounts or shares held in escrow that are not subject to
a claim for indemnification under Section 6.2 will be paid or delivered to
ISAR. Any amounts or shares withheld pending resolution of a claim under
Section 6.2 will either be paid or delivered to ISAR or Versant, dependent on
and upon resolution either between both parties or based upon arbitration as
defined in Section 7.1.2. The cash withheld pursuant to this Section 6.3 shall
be held in an interest-bearing account. On or before April 30, 1997, Versant
and ISAR agree to execute an additional agreement creating an escrow
arrangement consistent with the terms of this
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Agreement, with an independent escrow agent in California (which may be a
continuation of the arrangement with SVB). Versant and ISAR agree that the
provisions of Article 5.5 of this Agreement will govern the amounts to be held
by such escrow agent during the period between execution of this Agreement and
execution of the future Escrow Agreement contemplated in this Article.
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7. MISCELLANEOUS
7.1 Governing Law; Arbitration.
7.1.1 The laws of California will govern the validity of
this Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto. ISAR hereby agrees
to submit to the jurisdiction of the relevant state and/or federal court in San
Francisco, California for all proceedings which may arise from time to time
from this Agreement, subject to the arbitration provisions of Section 7.1.2.
7.1.2 In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or termination
hereof (a "Dispute"), the parties agree to resolve the same as follows
(a) The parties to the Dispute shall initially
attempt to resolve it through consultations and negotiations.
(b) If the Dispute has not been resolved amicably
within thirty (30) days after any party provides notice thereof, unless the
parties agree otherwise, the Dispute shall be resolved by final and binding
arbitration in Zurich, Switzerland, in accordance with the Arbitration Rules of
the United Nations Commission on International Trade Law ("UNCITRAL"), as in
effect on the date of this Agreement. The language to be used in the
arbitration proceeding shall be English. The International Chamber of Commerce
shall serve as the appointing authority. The arbitrators shall render a
written award stating the reasons for the decision . An arbitration award or
decision may be entered by any court of competent jurisdiction, or application
may be made to such a court for judicial acceptance of the award or decision
and any appropriate order, including enforcement.
(c) Each of the parties hereto consents to the
submission of any Dispute for Settlement by final and binding arbitration in
accordance with paragraph (b) above. Such consent shall satisfy the
requirements for an "agreement in writing" pursuant to Article II of the United
Nations Convention on the Recognition and Enforcement of Foreign Arbitration
Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to
carry out without delay the provisions of any arbitration award or decision.
7.2 Assignment; Binding Upon Successors and Assigns. No party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
7.3 Severability. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to the other persons or circumstances will remain in full force and
effect. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provision.
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7.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures
of all parties reflected hereon as signatories.
7.5 Amendment and Waivers. Any term or provision 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 Versant and
ISAR.
7.6 No Waiver. The failure of a party to enforce any of the
provisions hereof will not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
7.7 Expenses. Each party will bear its respective expenses and
fees of its own accountants, attorneys, investment bankers and other
professionals incurred with respect to this Agreement and the transactions
contemplated hereby.
7.8 Notices. Any notice or other communication required or
permitted to be given under this Agreement will be in writing, and shall be
deemed given (a) upon personal delivery, or (b) upon the sender's receipt of
electronic confirmation of transmission, if sent by telex or facsimile, or (c)
upon 2 business days after delivery to a recognized courier, fees prepaid,
addressed as follows:
(i) IF TO VERSANT:
Versant Object Technology Corporation
1380 Willow Road
Menlo Park, CA 94025
Attn: Rick Kadet
Facsimile number: (415) 325-2380
WITH A COPY TO:
Dan Brush, Esq.
Corporate General Counsel
(ii) IF TO ISAR:
Isar-Vermogensverwaltung GbR mbH
c/o Buro Klaus Luft
Gut Keferloh 1B
D-85630 Grasbrunn/Munich, Germany
Attention: Managing Partner
Facsimile number: (49-89) 464483
or to such other address as a party may have furnished to the other parties by
written notice given in accordance with this Section 7.8.
7.9 Further Assurances. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further
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written assurances as may be reasonably requested by any other party to
evidence and reflect the transactions described herein and contemplated hereby
and to carry into effect the intents and purposes of this Agreement.
7.10 Public Announcement. Versant will issue a press release
announcing the Acquisition. Versant may issue such press releases, and make
such other disclosures regarding the Acquisition, as it determines are required
under applicable U.S. securities laws or NASD rules.
7.11 Confidentiality. Versant and ISAR agree to hold in
confidence, and not to use except as authorized herein, all Confidential
Information (as defined below) of any others, and to use at least the same
degree of care that it uses to protect its own Confidential Information of like
importance, but in no event less than reasonable care, to prevent the
unauthorized disclosure or use of any other party's Confidential Information.
"Confidential Information" shall mean any information designated in writing by
the disclosing party to be "confidential" or "proprietary," including, without
limitation, the confidential terms of the Joint Venture Agreement as defined
therein and all information and documents received in connection with the
transactions contemplated by the Joint Venture Agreement, but shall not
include: (a) information that is or becomes generally available to the public
other than as a result of a disclosure by any person in breach of this
Agreement; (b) information already in a party's possession without restriction
on disclosure; (c) information that comes into a party's possession from a
third party without restriction on disclosure, other than through a breach of
an agreement with the original disclosing party; or (d) information the
disclosure of which is compelled by force of law, including without limitation
Versant's obligations to the Securities and Exchange Commission.
7.12 English Language. If any versions of this Agreement, the
Quota Transfer Agreement or any exhibits attached hereto or thereto or notices
issued pursuant hereto or thereto are prepared in languages other than English,
the English-language version controls when interpreting and construing such
document.
7.13 Entire Agreement. This Agreement and the Schedules and
Exhibits hereto, together with the surviving provisions of the Joint Venture
Agreement, which are set forth in Section 9.9 of the Joint Venture Agreement,
as well as Section 7.3.2 and Section 7.6 of the Joint Venture Agreement,
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and
contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the parties with respect hereto.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
7.14 Termination of Joint Venture Agreement. Effective upon the
Closing, the parties hereby agree that the Joint Venture Agreement shall
terminate; provided, however, that certain surviving provisions of the Joint
Venture Agreement, which are referred to in this Agreement, shall continue and
remain in full force and effect upon termination of the Joint Venture
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
ISAR-VERMOGENSVERWALTUNG GBR MBH
By:______________________________________________
Title:___________________________________________
VERSANT OBJECT TECHNOLOGY CORPORATION
By:______________________________________________
Title:___________________________________________
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Pursuant to the instruction to this Form 8-K, the following is a list of all
omitted schedules to the above-referenced agreement. The Registrant agrees to
furnish supplementally a copy of any omitted schedule to the Commission upon
request.
SCHEDULES
Exhibit A Transfer of Shareholdings
2.8A Audited Management Accounts
2.8B Unaudited Management Accounts
2.13.1 Agreements
2.16 Certain Transactions
2.17.3 List of Employee Plans
2.17.6 List of Employees and Salaries