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EXHIBIT 10.28
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into
as of October __, 1998 by and among Versant Corporation, a California
corporation (the "COMPANY"), and the party listed on the Schedule of Investors
attached to this Agreement as Exhibit A (the "INVESTOR").
R E C I T A L S
A. The Company is currently in need of funds for working capital
purposes.
B. The Investor is willing to lend money to the Company in exchange for
the issuance to it of certain convertible secured subordinated promissory notes,
as provided in this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. PURCHASE AND SALE OF NOTES. The Investor agrees to purchase from the
Company a Convertible Secured Subordinated Promissory Note in the form attached
to this Agreement as Exhibit B (the "NOTE") in the principal face amount set
forth opposite such Investor's name on Exhibit A to this Agreement and the
Company agrees to sell to the Investor the Note on the terms set forth herein.
2. CLOSING. The purchase and sale of the Note will take place at the
offices of Fenwick & West LLP, Two Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx,
Xxxxxxxxxx, at 11:00 a.m. Pacific Time, on October __, 1998 or at such other
time and place as the Company and the Investor mutually agree upon, either
orally or in writing (which time and place are referred to in this Agreement as
the "CLOSING"). At the Closing, the Company will deliver to the Investor the
Note for the principal amount that such Investor has agreed to purchase
hereunder as shown on Exhibit A against delivery to the Company by such Investor
of the full purchase price of such Note, paid by a check payable to the
Company's order or wire transfer of funds to the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that, except as set forth in the
Schedule of Exceptions (the "SCHEDULE OF EXCEPTIONS") attached to this Agreement
as Exhibit C (which Schedule of Exceptions shall be deemed to be representations
and warranties to the Investor by the Company under this Section 3), the
statements in the following paragraphs of this Section 3 are all true and
complete:
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all requisite corporate power and authority
to own its properties and assets and
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to carry on its business as now conducted and as presently proposed to be
conducted. The Company is qualified to do business as a foreign corporation in
each jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business, prospects or operations.
3.2 Due Authorization. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of, and the performance of all obligations
of the Company under, this Agreement, the Note, the Security Agreement (as
defined in Section 5.8 below) and the Registration Rights Agreement (as defined
in Section 5.9 below) and the authorization, issuance, reservation for issuance
and delivery of all of the Common Stock that is issuable under conversion of the
Note (the "CONVERSION SHARES") has been taken or will be taken prior to the
execution of this Agreement, and this Agreement, the Note, the Security
Agreement and the Registration Rights Agreement constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, except as may be limited by: (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditor's rights generally; and (ii) the effect of
rules of law governing the availability of equitable remedies.
3.3 Corporate Power. The Company has all requisite legal and
corporate power to execute and deliver this Agreement, the Note, the Security
Agreement and the Registration Rights Agreement, to issue the Conversion Shares,
and to carry out and perform all its obligations under this Agreement, the Note,
the Security Agreement and the Registration Rights Agreement.
3.4 Proceedings. There is no pending action, suit, litigation,
arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding), prosecution, hearing, or investigation,
commenced, brought, conducted or heard by or before, any governmental body or
any arbitrator or arbitration panel ("PROCEEDING"), and to the Company's
knowledge, no person or entity has threatened to commence any Proceeding, that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with, the transactions contemplated by this Agreement,
the Note, the Security Agreement or the Registration Rights Agreement.
3.5 Non-Contravention; Consents. Neither the execution and delivery
of this Agreement, the Note, the Security Agreement or the Registration Rights
Agreement, nor the consummation or performance of any of the transactions
contemplated by this Agreement, the Note, the Security Agreement or the
Registration Rights Agreement to be performed at the Closing, will directly or
indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i) any
of the provisions of the Company's Articles of Incorporation or Bylaws, or (ii)
any resolution adopted by the Company's shareholders, the Company's Board of
Directors or any committee of the Company's Board of Directors;
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(b) to the Company's knowledge, contravene, conflict with or
result in a violation of, or give any governmental body or other person the
right to challenge any of the transactions contemplated by this Agreement, the
Note, the Security Agreement or the Registration Rights Agreement or to exercise
any remedy or obtain any relief under, any federal, state, local, municipal,
foreign or other law, statute, legislation, ordinance, rule, regulation or
ruling that is or has been issued, enacted, adopted, passed, approved,
promulgated, made, implemented or otherwise put into effect by or under the
authority of any governmental body, or any order to which the Company, or any of
the assets owned or used by the Company, is subject; or
(c) contravene, conflict with or result in a material violation
or breach of, or result in a material default under, any of the Company's
material agreements.
With the exception of any necessary filings pursuant to federal and state
securities laws, and except as disclosed on the Schedule of Exceptions, the
Company will not be required to make any filing with or give any notice to, or
to obtain any consent from, any person in connection with the execution and
delivery of this Agreement, the Note, the Security Agreement and the
Registration Rights Agreement or the consummation or performance at the Closing
of any of the transactions contemplated by this Agreement, the Note, the
Security Agreement and the Registration Rights Agreement.
3.6 Brokers. The Company has not agreed or become obligated to pay,
and has not taken any action that likely would result in any person claiming to
be entitled to receive, any brokerage commission, finder's fee or similar
commission or fee in connection with any of the transactions contemplated by
this Agreement.
3.7 Full Disclosure; SEC Reports; SEC Matters.
(a) This Agreement (including all exhibits hereto) does not
contain any untrue statement of material fact and does not omit to state any
fact necessary to make any of the representations, warranties or statements
contained herein on behalf of the Company not misleading with respect to the
Company.
(b) As of the date of this Agreement, the Company has provided
the Investor or its counsel with full and complete access to all of the
Company's records and other documents and data requested by them.
(c) The Company has filed all reports required to be filed with
the Securities and Exchange Commission ("SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") (all such reports and
amendments thereto, collectively, the "COMPANY SEC REPORTS"). None of such
Company SEC Reports, as of their respective dates (as amended through the date
hereof), contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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(d) The Company has filed all material contracts required to be
filed with the SEC pursuant to the Item 601 of Regulation S-K under the
Securities Act of 1933, as amended (the "1933 ACT") and the Exchange Act.
(e) The Company is eligible to file Form S-3 registration
statements under the 1933 Act with the SEC in connection with offerings of
outstanding Company securities to be offered for the account of any person other
than the Company, so long as such person is not a registered broker-dealer.
3.8 Valid Issuance. The Note and the Conversion Shares, when issued
in compliance with the terms of this Agreement and the Note, will be validly
issued, fully paid and nonassessable and will be free of any liens or
encumbrances.
3.9 Intellectual Property. Set forth on the Schedule of Exceptions is
a true and complete list of all the material patents, trademarks, service marks,
trade names and copyrights, as well as all applications therefor ("INTELLECTUAL
PROPERTY") owned by the Company.
(a) The Company is the sole owner of, or possesses sufficient
legal rights on commercially reasonable terms to, all Intellectual Property
necessary for its business as now conducted and as proposed to be conducted
without any known conflict with or infringement of the rights of any other
person or entity. The Company has not received any communications alleging that
the Company has violated or is otherwise acting adversely to, or by conducting
its business as proposed, would violate or act adversely to, any Intellectual
Property owned or claimed to be owned by any other person or entity, and, to the
Company's knowledge, there is no basis for such claim.
(b) The Company is not aware of any violation by a third party of
any of the Company's Intellectual Property.
(c) The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or communications of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with their duties to
the Company or that would conflict with the Company's business as proposed to be
conducted.
(d) The Company has obtained and will obtain from all individuals
who participated in any respect in the invention or authorship of any material
Intellectual Property owned by the Company (as employees of the Company,
consultants, employees of consultants or otherwise) effective waivers of any and
all ownership rights of such individuals in such owned Intellectual Property,
and assignments to the Company of all rights with respect thereto, other than
from such individuals whose copyrightable works the Company hereby represents to
be "works for hire" within the meaning of Section 101 of the Copyright Act of
1976.
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(e) The Company has no knowledge of any facts or claims that
would cause any of its patents or patents issuable with respect to any of patent
applications to be invalid or to infringe any patent or other Intellectual
Property of any third party.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR. The
Investor hereby represents and warrants to, and agrees with, the Company that:
4.1 Authorization. This Agreement, the Security Agreement and the
Registration Rights Agreement constitute such Investor's valid and legally
binding obligation, enforceable in accordance with their respective terms except
as may be limited by: (i) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors' rights generally, and (ii) the effect of rules of law governing the
availability of equitable remedies. The Investor represents that such Investor
has full power and authority to enter into this Agreement, the Security
Agreement and the Registration Rights Agreement.
4.2 Purchase for Own Account. The Note to be purchased by such
Investor hereunder and the Conversion Shares will be acquired for investment for
such Investor's own account, not as a nominee or agent, and not with a view to
the public resale or distribution thereof within the meaning of the 1933 Act,
and such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same.
4.3 Disclosure of Information. The Investor believes it has received
or has had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to the Note to
be purchased by such Investor under this Agreement. Such Investor further has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Note and Conversion
Shares and to obtain additional information (to the extent the Company possessed
such information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Investor or to which such
Investor had access. The foregoing, however, does not in any way limit or modify
the representations and warranties made by the Company in Section 3.
4.4 Investment Experience. The Investor is an "accredited investor"
within the meaning of Regulation D promulgated under the 0000 Xxx.
4.5 Restricted Securities. The Investor understands that the Note and
Conversion Shares are characterized as "restricted securities" under the 1933
Act and Rule 144 promulgated thereunder inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under the
1933 Act and applicable regulations thereunder such securities may be resold
without registration under the 1933 Act only in certain limited circumstances.
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4.6 No Solicitation. At no time was the Investor presented with or
solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Note or Conversion Shares.
4.7 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Note or Conversion Shares unless
and until:
(a) there is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and (ii) such Investor
shall have furnished the Company, at the expense of such Investor or its
transferee, with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such securities under the
1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
transfer of any Note or Conversion Shares in compliance with SEC Rule 144; (ii)
for any transfer of any Note or Conversion Shares by an Investor to any
affiliate (as that term is defined in Rule 405 promulgated under the 0000 Xxx)
of such Investor; or (iii) for any transfer of any Note or Conversion Shares by
an Investor that is a partnership or a corporation to (A) a partner of such
partnership or a shareholder of such corporation or (B) the estate of any such
partner or shareholder; or (iv) for the transfer by gift, will or intestate
succession by any Investor to his or her spouse or lineal descendants or
ancestors or any trust for any of the foregoing; provided that in each of the
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 4 to the same extent as if the transferee were an original Investor
hereunder.
4.8 Legends. It is understood that the certificates evidencing the
Note and Conversion Shares will bear the legend set forth below:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER THE
ACT OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE
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REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING. The obligations of
the Investor under Section 2 of this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following conditions, which
conditions may be waived by written, oral or telephone communication to the
Company, its counsel or to counsel to the Investor:
5.1 Representations and Warranties True. Each of the representations
and warranties of the Company contained in Section 3 shall be true and correct
on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.
5.2 Performance. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Compliance Certificate. The Company shall have delivered to the
Investor at the Closing a certificate signed on its behalf by its Chief
Executive Officer or Chief Financial Officer certifying that the conditions
specified in Sections 5.1 and 5.2 have been fulfilled and stating that there
shall have been no material adverse change in the business, affairs, prospects,
operations, properties, assets or condition of the Company not previously
disclosed to the Investor.
5.4 Securities Exemptions. The offer and sale of the Note and
Conversion Shares to the Investor pursuant to this Agreement shall be exempt
from the registration requirements of the 1933 Act and the registration and/or
qualification requirements of all applicable state securities laws.
5.5 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor and to the Investor's counsel, and they shall each have received all
such counterpart originals and certified or other copies of such documents as
they may reasonably request.
5.6 No Material Change. There shall have been no material adverse
change in the business, affairs, prospects, operations, properties, assets or
condition of the Company.
5.7 Opinion of Company Counsel. The Investor shall have received an
opinion from Fenwick & West LLP, counsel for the Company, dated as of the date
of the Closing, in the form attached hereto as Exhibit D.
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5.8 Security Agreement. The Company shall have executed and delivered
to the Investor a Security Agreement substantially in the form attached hereto
as Exhibit E (the "SECURITY AGREEMENT").
5.9 Registration Rights Agreement. The Company shall have executed
and delivered a Registration Rights Agreement substantially in the form attached
hereto as Exhibit F (the "REGISTRATION RIGHTS AGREEMENT").
5.10 UCC-1. The Company shall have executed and delivered to Investor
counsel a UCC-1 in the form attached hereto as Exhibit G.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment or waiver on or before the Closing of each of the following
conditions by the Investor:
6.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 4 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. The Investor shall have delivered to
the Company the purchase price specified for such Investor on Exhibit A in
accordance with the provisions of Section 2.
6.3 Securities Exemptions. The offer and sale of the Note and
Conversion Shares to the Investor pursuant to this Agreement shall be exempt
from the registration requirements of the 1933 Act and the registration and/or
qualification requirements of all applicable state securities laws.
6.4 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Company and to the Company's legal counsel, and the Company shall have received
all such counterpart originals and certified or other copies of such documents
as it may reasonably request.
6.5 Subordination Agreement. The Investor and Comerica Bank -
California ("COMERICA") shall have entered into a Subordination Agreement in
form acceptable to Comerica.
7. COVENANTS OF THE COMPANY
7.1 Costs, Expenses. The Company shall pay in connection with the
preparation, execution and delivery of this Agreement and the issuance of the
Note, the fees and out-of-pocket expenses of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
special counsel to the Investor, such fees and expenses not to exceed $10,000.
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7.2 Singapore Office. The Company agrees to establish a regional
office in Singapore as soon as practicable after the Closing if business and
financial conditions warrant.
7.3 Investor's Securities Filings. The Company agrees to assist the
Investor in making any required filings under applicable U.S. securities laws in
connection with this Agreement and the transactions contemplated hereby.
7.4 Security Interest Filings. The Company agrees to assist the
Investor in filing the applicable financing statements, deeds of trust or other
documents with the U.S. Patent and Trademark Office and the U.S. Register of
Copyrights in connection with the perfection of Investor's security interests in
the Collateral (as defined in the Security Agreement) within 10 days after the
Closing.
8. COVENANTS OF INVESTOR.
8.1 Lock-up. The Investor agrees that it will not sell or otherwise
transfer or dispose of or reduce its economic interest in the Note or Conversion
Shares for a period of six months from the Closing.
8.2 Standstill. The Investor agrees that, from the Closing until such
time as the Note is no longer outstanding, it will not acquire more than 100,000
shares of the Company's Common Stock (other than any Conversion Shares issued to
Investor) in any two week period without the prior written consent of the
Company. The Company will respond to any Investor request to acquire more than
100,000 shares of such stock within two business days of the Company's receipt
of such request. If the Company does not respond within such two business day
period, the Company shall be deemed to have waived the requirement of such
consent as to the referenced transaction. The Company agrees not to unreasonably
withhold its consent.
8.3 Right of First Offer. Commencing on the Closing, in the event
Investor and its "affiliates" or "associates" (as those terms are defined in
Rule 405 promulgated under the 1933 Act) (collectively, the "INVESTOR GROUP")
seek to sell, transfer the voting rights in, or otherwise transfer for value 5%
or more of the then outstanding shares of the Company's Common Stock (assuming
for this purpose conversion of any Notes) to any person or group of persons in
one or more related transactions (a "SIGNIFICANT TRANSACTION"), the Investor
Group will provide the Company, in writing, with a notice reflecting its desire
to enter into such Significant Transaction and setting forth the terms and
conditions of the proposed Significant Transaction (such notice, a "ROFO
NOTICE"). Each ROFO Notice shall constitute an offer by the Investor Group to
sell the securities covered by such ROFO Notice (the "ROFO SECURITIES") to the
Company on the terms and conditions set forth in the ROFO Notice. If the Company
desires to accept the offer set forth in the ROFO Notice as to any part of the
ROFO Securities, the Company shall, within ten business days of receipt of such
ROFO Notice, notify the Investor Group of its agreement to acquire some or all
of the ROFO Securities (the "ROFO ACCEPTANCE"). The closing of any sale of ROFO
Securities by the Investor Group to the Company shall occur within three
business days of the Investor Group's receipt of the ROFO Acceptance, at which
time the Company will deliver the purchase price for the ROFO Securities
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it is purchasing in return for such securities. In the event (i) the Company
does not provide the Investor Group with a ROFO Acceptance within ten business
days of receipt of a ROFO Notice or (ii) the Investor Group receives a ROFO
Acceptance with respect to less than all of the ROFO Securities, then the
Investor Group may sell, transfer the voting rights in, or otherwise transfer
for value all or the remaining ROFO Securities, as the case may be, to any third
party or parties on terms and conditions no less favorable in the aggregate to
such third parties than those set forth in the ROFO Notice; provided, however,
that if such sale, transfer of voting rights, or transfer of value does not
occur within 60 days of the Company's initial receipt of a ROFO Notice, the
Investor Group will be required to resubmit a ROFO Notice to the Company and
follow the procedures outlined in this section before consummating such sale,
transfer of voting rights or transfer for value. This Right of First Offer (i)
will not apply to any transfer in connection with a transaction approved by the
Company's Board of Directors, (ii) will not continue to apply to any shares
transferred pursuant to this Section, and (iii) will terminate three years from
the date hereof.
9. MISCELLANEOUS.
9.1 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
9.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.3 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with a recognized international courier service, fees prepaid and
addressed to the party to be notified at the address indicated for such party on
Exhibit A or, in the case of the Company, at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, or at such other address as such party may designate by ten
(10) days advance written notice to all other parties.
9.4 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of a majority of the
principal amount of the Notes then outstanding. Any amendment or waiver effected
in accordance with this Section shall be binding upon each holder of any Note or
Conversion Stock at the time outstanding, each future holder of such securities,
and the Company.
9.5 Entire Agreement. This Agreement, together with all exhibits and
schedules hereto, constitutes the entire understanding and agreement of the
parties with respect to
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the subject matter hereof and supersedes all prior understandings and agreements
with respect to such matters.
9.6 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
9.7 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs and exhibits shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits attached hereto, all of which exhibits are
incorporated herein by this reference.
9.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
enforced to the maximum extent possible consistent with applicable law and the
balance of the Agreement shall remain in full force and effect.
9.9 Further Assurances. From and after the date of this Agreement,
upon the request of the Investor or the Company, the Company and the Investor
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
9.10 Waiver of Conflict of Interest. The Investor and the Company are
aware that Fenwick & West LLP ("F&W"), counsel to the Company, has previously
performed and may continue to perform certain legal services for the Investor in
matters unrelated to F&W's representation of the Company. In connection with its
Investor representation, F&W may have obtained confidential information of such
Investor that could be material to F&W's representation of the Company in
connection with negotiation, execution and performance of this Agreement. By
signing this Agreement, the Investor and the Company each waives any potential
conflict of interest arising out of such representation or such possession of
confidential information and acknowledges that F&W is solely representing the
Company in connection with this transaction. The Investor and the Company
further represents that it has had the opportunity to be, or has been,
represented by independent counsel in giving the waivers contained in this
Section 9.10. The Investor and the Company agrees that F&W may represent the
Company in any dispute that may arise between the Company and the Investor or
any Investor Group related to this Agreement or the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
VERSANT CORPORATION VERTEX TECHNOLOGY FUND PTE. LTD.
By: ___________________________ By: ____________________________
Name:__________________________ Name: __________________________
Title:_________________________ Title: _________________________
The Company expressly acknowledges The Investor expressly
the conflict of interest waiver acknowledges the conflict
set forth in Section 9.10. of interest waiver set
forth in Section 9.10.
[SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT.]
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EXHIBIT A
INVESTOR NAME PRINCIPAL AMOUNT
AND ADDRESS OF NOTE
------------- ----------------
Vertex Technology Fund Pte. Ltd $3,619,000
c/o Vertex Management, Inc.
0 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, XX 00000
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EXHIBIT C
SCHEDULE OF EXCEPTIONS
SECTION COMMENT
------- -------
3.5 The Company needs to obtain, and will obtain prior to
the Closing, the consent of Comerica Bank to this
transaction.
Various filings will need to be made with government
agencies to perfect the security interest granted
pursuant to the Security Agreement.
3.6 Xxxxx & Co. may be entitled to a fee of $72,380 in
connection with this transaction, which fee will be the
sole responsibility of and paid by the Company.
3.9 The Company's Intellectual Property consists of the
following:
PATENT
------
PATENT NO. ISSUE DATE
---------- ----------
5822759 10/13/98
COPYRIGHTS
----------
Versant 3.0.9 TX3-924-043
Versant 4.0 XX0-000-000
Xxxxxxx ODBMS 5.0.7 TX4-627-009
TRADEMARKS
REGISTRATIONS
-------------
DESCRIPTION REGISTRATION NO. REGISTRATION DATE
----------- ---------------- -----------------
Versant 1,649,354 7/2/91
Versant Object Technology 1,658,074 9/24/91
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APPLICATIONS
------------
Making Objects Do Business 75/182,424 10/16/96
75/182,423 10/16/96
Versant Time Series 75/471,701 4/21/98
Versant Transport 75/471,704 4/21/98
Versantace 75/432,704 2/11/98
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