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EXHIBIT 10.35
EXHIBIT D
VERSANT CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of this
28th day of December, 1998, by and between Versant Corporation, a California
corporation (the "Company") and the entities listed on Exhibit 1 attached hereto
(each, a "Purchaser"), the purchasers of the Company's Common Stock and Warrants
pursuant to that certain Common Stock and Warrant Purchase Agreement dated of
even date herewith (the "Purchase Agreement").
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
1.2 "Common Stock" shall mean the shares of the Company's Common
Stock, no par value.
1.3 "Form S-3" shall mean Form S-3 promulgated by the Commission
or any substantially similar form then in effect.
1.4 "Holder" shall mean any holder of record of Registrable
Securities or any transferee or assignee of record of such Registrable
Securities.
1.5 "Purchasers" shall mean collectively, the Purchasers, their
assignees and transferees, and individually, a Purchaser and any transferee or
assignee of such Purchaser.
1.6 The terms "Register," "Registered" and "Registration" refer
to a registration effected by preparing and filing a registration statement
("Registration Statement") in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such Registration Statement.
1.7 "Registrable Securities" shall mean the Common Stock issued
pursuant to the Purchase Agreement and issuable upon exercise of the Warrant (as
defined in the Purchase Agreement), excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which the rights
hereunder are not assigned in accordance with this Agreement, or any Registrable
Securities sold to the public or sold pursuant to Rule 144 promulgated under the
Securities Act.
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1.8 "Registration Expenses" shall mean all expenses incurred by
the Company in complying with Sections 2 and 3 hereof, including without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses and the expense of any special audits incident to or required
by any such Registration.
1.9 "Registration Termination Date" shall mean, with respect to
any Registrable Securities, the earliest of (i) December 28, 2002, (ii) the date
that such Registrable Securities shall have been Registered and sold or
otherwise disposed of in accordance with the intended method of distribution by
the seller or sellers thereof set forth in the registration statement covering
such securities or transferred in compliance with Rule 144, and (iii) the date
as of which the Company shall have notified the Holder, in writing, that it has
determined that such Registrable Securities may be sold pursuant to paragraph
(k) of Rule 144 (or any successor provision). The termination date specified in
(i) above shall be extended for a period equal to the number of days, occurring
after the effective date and prior to the termination date of the Registration
Statement described in Section 2.1 below, during which a Holder's ability to
resell its Registrable Securities under the Registration Statement is suspended
pursuant to Section 2.4.3 hereof or otherwise.
1.10 "Rule 144" shall mean Rule 144 promulgated by the Commission
pursuant to the Securities Act.
1.11 "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.12 "Shares" shall mean Common Stock.
1.13 "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement, together with the fees of any counsel to the selling
shareholders.
2. S-3 Registration.
2.1 Registration. The Company covenants and agrees with the
Purchaser that the Company will prepare and file with the Commission a
Registration Statement on Form S-3 or other applicable form covering the
Registrable Securities by April 7, 1999, and use its best efforts to have the
Registration Statement declared effective as soon as possible thereafter. Such
Registration Statement also may include other shares of the Company's Common
Stock, in the Company's discretion.
2.2 Blue Sky. The Company will use its best efforts to Register
and qualify the Registrable Securities covered by the Registration Statement
under such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders for the distribution of such securities;
provided, however, that the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
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2.3 Expenses of Registration. All Registration Expenses incurred
in connection with the Registration pursuant to Section 2 shall be borne by the
Company. All Selling Expenses shall be borne by the persons who sell the Shares
generating said Selling Expenses.
2.4 S-3 Registration Procedures.
2.4.1 Advice By Company. The Company will keep each Holder
advised as to the initiation and completion of the Registration. At its expense
the Company will (a) use its best efforts to keep any Registration pursuant to
Section 2 effective until the Registration Termination Date and (b) furnish
promptly to each Holder such number of copies of prospectuses (including
preliminary prospectuses), and all amendments and supplements thereto, in
conformity with the requirements of the Securities Act, and such other documents
as any such Holder from time to time may reasonably request.
2.4.2 Amendments. The Company will prepare and file with
the Commission such amendments and prospectus supplements, including
post-effective amendments, to the Registration Statement filed pursuant to
Section 2 as the Company determines may be necessary or appropriate, and use its
best efforts to have such post-effective amendments declared effective as
promptly as practicable; cause the related prospectus to be supplemented by any
prospectus supplement, and as so supplemented, to be filed with the Commission;
and notify the Holders and the underwriter thereof, if any, promptly when a
prospectus, any prospectus supplement or post-effective amendment must be filed
or has been filed and, with respect to any post-effective amendment, when the
same has become effective.
2.4.3 Blackout Period. Notwithstanding any other provision
hereof, the Company may delay the Holders' ability to resell Registrable
Securities pursuant to the Registration Statement if the Company delivers a
certificate in writing to the Holders to the effect that a delay in such sale is
necessary because, in the good faith and reasonable judgment of the Company's
Board of Directors, a sale pursuant to the Registration Statement would require
the public disclosure of information that could have a significant adverse
effect on the Company, or could constitute a violation of the federal securities
laws. In such an event, the Company shall notify the Holders promptly after it
is determined that such circumstances no longer exist. The Company shall not be
entitled to delay the Holders' ability to resell Registrable Securities more
than 45 days in any calendar year.
3. Piggyback Registrations.
3.1 Registration. The Company shall notify all Holders of
Registrable Securities in writing at least fifteen (15) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to any registration
under Section 2 of this Agreement or to any employee benefit plan or a corporate
reorganization pursuant to Rule 145 promulgated under the Securities Act) and
will afford each such Holder an opportunity to include in such registration
statement all or any part of the Registrable Securities then held by
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such Holder. Each Holder desiring to include in any such registration statement
all or any part of the Registrable Securities held by such Holder shall, within
ten (10) days after receipt of the above-described notice from the Company, so
notify the Company in writing, and in such notice shall inform the Company of
the number of Registrable Securities such Holder wishes to include in such
registration statement. If a Holder decides not to include any or all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
3.2 Underwriting. If a registration statement under which the
Company gives notice under this Section 3 is for an underwritten offering, then
the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude Registrable Securities as it sees fit. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration. For any
Holder which is a partnership or corporation, the partners, retired partners and
shareholders of such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "Holder", and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder", as defined in this sentence.
3.3 Expenses of Registration. All Registration Expenses incurred
in connection with the Registration pursuant to Section 3 shall be borne by the
Company. All Selling Expenses shall be borne by the persons who sell the Shares
generating said Selling Expenses.
3.4 Registration Procedures.
3.4.1 Advice By Company. The Company will keep each Holder
advised as to the initiation and completion of the Registration. At its expense
the Company will furnish promptly to each Holder such number of copies of
prospectuses (including preliminary prospectuses), and all amendments and
supplements thereto, in conformity with the requirements of the Securities Act,
and such other documents as any such Holder from time to time may reasonably
request.
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3.4.2 Amendments. The Company will prepare and file with
the Commission such amendments and prospectus supplements, including
post-effective amendments, to the Registration Statement filed pursuant to
Section 3 as the Company determines may be necessary or appropriate, and use its
appropriate efforts to have such post-effective amendments declared effective;
cause the related prospectus to be supplemented by any prospectus supplement,
and as so supplemented, to be filed with the Commission; and notify the Holders
and the underwriter thereof, if any, promptly when a prospectus, any prospectus
supplement or post-effective amendment must be filed or has been filed and, with
respect to any post-effective amendment, when the same has become effective.
3.4.3 Blue Sky. The Company will use its best efforts to
Register and qualify the Registrable Securities covered by the Registration
Statement under such other securities or Blue Sky laws of such United States
jurisdictions as shall be reasonably requested by the Holders for the
distribution of such securities; provided, however, that the Company shall not
be required to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
4. Information Furnished by Holder. It shall be a condition precedent to
the Company's obligations under this Agreement as to any Holder that (i) such
Holder furnish to the Company in writing such information regarding such Holder
and the distribution proposed by such Holder as the Company may reasonably
request; and (ii) such Holder is not a securities market professional, i.e., a
market maker, specialist, ordinary broker dealer, member of the National
Association of Securities Dealers, Inc. or a registered representative thereof,
or an affiliate of any of the foregoing.
5. Indemnification.
5.1 Company's Indemnification of Holders. The Company will
indemnify each Holder, each of its officers, directors and constituent partners,
and each person controlling such Holder, with respect to which Registration of
Registrable Securities has been effected pursuant to this Agreement, and each
underwriter thereof, if any, and each of its officers, directors, constituent
partners, and each person who controls such underwriter, against all claims,
losses, damages or liabilities (or actions in respect thereof) suffered or
incurred by any of them, to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or any related
Registration Statement incident to any such Registration, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to actions or inaction required of the
Company in connection with any such Registration; and the Company will reimburse
each such Holder, each such underwriter and each person who controls any such
Holder or underwriter, and each other indemnitee named above, for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided, however,
that the indemnity contained in this Section 5.1 shall not apply to amounts paid
in settlement of any such claim, loss, damage, liability or action
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if settlement is effected without the consent of the Company (which consent
shall not unreasonably be withheld); and provided, further, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based upon any untrue statement
or omission based upon written information furnished to the Company by such
Holder, underwriter, controlling person or other indemnified person and stated
to be for use in connection with the offering of securities of the Company.
Notwithstanding the above, the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any such untrue statement, alleged
untrue statement, omission or alleged omission made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the Commission
at the time the Registration Statement becomes effective or a prospectus is
filed with the Commission pursuant to Rule 424(b) (the "Final Prospectus"), such
indemnity agreement shall not inure to the benefit of any person if a copy of
the Final Prospectus was furnished to such person and was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
5.2 Holder's Indemnification of Company. Each Holder will
indemnify the Company, each of its directors and officers, each underwriter, if
any, of the Company's Shares covered by a Registration Statement, each person
who controls the Company or such underwriter within the meaning of the
Securities Act, and each other Holder, each of its officers, directors, and
constituent partners and each person controlling such other Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) suffered
or incurred by any of them and arising out of or based upon any untrue statement
(or alleged untrue statement) of a material fact contained in such Registration
Statement or related prospectus, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Holder of any rule
or regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with the
Registration of Securities pursuant to such Registration Statement; and will
reimburse the Company, such other Holders, such directors, officers, partners,
persons, underwriters and controlling persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement or
prospectus in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use in
connection with the offering of Shares of the Company; provided, however, that
each Holder's liability under this Section 5.2 shall not exceed such Holder's
proceeds from the offering of Shares made in connection with such Registration.
5.3 Indemnification Procedure. Promptly after receipt by an indemnified
party under this Section 5 of notice of the commencement of any action which may
give rise to a claim for indemnification hereunder, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party under
this Section 5, notify the indemnifying party in writing of the commencement
thereof and generally summarize such action. The indemnifying party shall have
the right to participate in and to assume the defense of such action, and shall
be entitled to select counsel for the defense of such action with the approval
of any parties entitled
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to indemnification, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, the parties entitled to indemnification shall
have the right to employ separate counsel (reasonably satisfactory to the
indemnifying party) to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such indemnified parties unless
the named parties to such action or proceedings include both the indemnifying
party and the indemnified parties and the indemnifying party or such indemnified
parties shall have been advised by counsel that there are one or more legal
defenses available to the indemnified parties which are different from or
additional to those available to the indemnifying party (in which case, if the
indemnified parties notify the indemnifying party in writing that they elect to
employ separate counsel at the reasonable expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
or proceeding on behalf of the indemnified parties, it being understood,
however, that the indemnifying party shall not be liable for the reasonable fees
and expenses of more than one separate counsel at any time for all indemnified
parties, whether under this agreement or otherwise).
5.4 Contribution. If the indemnification provided for in this
Section 5 from an indemnifying party is unavailable to an indemnified party
hereunder in respect to any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the statements
or omissions which result in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or indemnified party
and the parties' relative intent, knowledge, access to information supplied by
such indemnifying party or indemnified party and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with the investigating or defending any
action, suit, proceeding or claim. Notwithstanding anything to the contrary
contained in this Section 5.4, the aggregate of the amount paid pursuant to this
Section 5.4 and pursuant to Section 5.2 by a party that is a Holder shall not
exceed such Holder's proceeds from the offering of Shares made in connection
with the Registration that gives rise to Holder's liability.
6. Covenants of the Company. The Company agrees to:
6.1 Notice of Defect. Notify the Holders at any time when a
prospectus relating to Registrable Securities covered by the Registration
Statement is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing. The
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Company shall promptly amend or supplement the Registration Statement to correct
any such untrue statement or omission.
6.2 Notice of Stop Order. Notify the Holders of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible time.
6.3 Inspection. Make available for inspection by the Holders, and
the counsel, accountants or other agents retained by the Holders, all pertinent
financial and other records, corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by the Holders in connection with the
Registration, subject to appropriate confidentiality obligations.
6.4 Listing. If the Common Stock is then listed on a national
securities exchange or national market system, use its best efforts to cause the
Registrable Securities to be listed on such exchange or market system.
6.5. Assistance. Take all other reasonable actions necessary to
expedite and facilitate disposition by the Holders of the Registrable Securities
pursuant to the Registration Statement.
6.6 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the Commission that may at
any time permit the Holders to sell securities of the Company to the public
without registration, the Company agrees to:
6.6.1 for at least four years from the date hereof, make
and keep public information available, as those terms are understood and defined
in Rule 144;
6.6.2 for at least four years from the date hereof, file
with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Securities and Exchange Act of
1934 (the "1934 Act"); and
6.6.3 furnish to each Holder, so long as such Holder owns
any Registrable Securities, forthwith upon written request (a) a written
statement by the Company whether it has complied with the reporting requirements
of Rule 144, the Securities Act and the 1934 Act, (b) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company and (c) such other information as may be reasonably
requested in availing the Holders of any rule or regulation of the Commission
which permits the selling of any such securities without registration.
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7. Miscellaneous.
7.1 Notice. Notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be sufficiently given when personally
delivered or sent by nationally recognized express courier, addressed (i) if to
the Company, at Versant Corporation, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000; Attention: Chief Executive Officer and (ii) if to a Purchaser, at the
address set forth on Exhibit 1, or at such other address as each such party
furnishes by notice given in accordance with this Section 7.1.
7.2 Amendment and Waiver. 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 representing at least a
majority of the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this Section 7.2 will be binding upon each Holder of
Registrable Securities then outstanding, each future Holder of such securities
and the Company.
7.3 Governing Law; Severability. This Agreement shall be
enforced, governed and construed in all respects in accordance with the laws of
the State of New York, as such laws are applied by New York courts to agreements
entered into and to be performed in New York by and between residents of New
York. In the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any
provision hereof which may prove invalid or unenforceable under any law shall
not affect the validity or enforceability of any other provision hereof.
7.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the date first written above.
VERSANT CORPORATION SPECIAL SITUATIONS FUND III LP
By:_______________________________ By::_______________________________
Name:_____________________________ Name::_____________________________
Title:____________________________ Title::____________________________
SPECIAL SITUATIONS CAYMAN LP SPECIAL SITUATIONS TECHNOLOGY
FUND LP
By:_______________________________ By::_______________________________
Name:_____________________________ Name::_____________________________
Title:____________________________ Title::____________________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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EXHIBIT 1
Special Situations Fund III LP
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Special Situations Cayman LP
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Special Situations Technology Fund LP
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
