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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.
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(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.
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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
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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
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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
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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:
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Name:
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Title:
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[SIGNATURE PAGE TO WARRANT.]
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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 .
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(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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(Print Warrantholder Name)
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(Address)
Dated:
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* Insert here the number of shares as to which the Warrant is being exercised.
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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.
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(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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(Print Warrantholder Name)
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(Address)
Dated:
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