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EXHIBIT 10.31
VERSANT CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this 16th
day of October, 1998, by and between Versant Corporation, a California
corporation (the "Company"), and the purchaser (the "Purchaser") of the
Company's Convertible Secured Subordinated Promissory Note (the "Note") pursuant
to that certain Note 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 Purchaser, its
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 issuable
upon conversion of the Note, 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.
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
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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) October 15, 2001, (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).
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 each of the
Purchasers that the Company will prepare and file with the Commission a
Registration Statement on Form S-3 covering the Registrable Securities, and use
its best efforts to have the Registration Statement declared effective as
promptly as practicable and in any event within 90 days of the Closing. 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.
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.
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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 Notice of Sale and Sale under the Registration Statement.
Any Holder intending to sell Shares under the Registration Statement filed
pursuant to Section 2 shall give at least three (3) business days' prior written
notice (a "Sale Notice") to the Company of any proposed sale of Shares under the
Registration Statement effective pursuant to this Section 2 and shall not make
such sale (i) unless such three (3) days lapse without response from the
Company, or (ii) in the event the Company responds by stating that a prospectus
supplement or post-effective amendment will be filed pursuant to Section 2.4.3,
until the Company has notified such Holder pursuant to Section 2.4.3 that any
such post-effective amendment has become effective or prospectus supplement has
been filed. A Sale Notice shall be effective for 30 days after it is given.
2.4.3 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.
2.4.4 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
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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 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 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 shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder. 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.
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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.
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
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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, 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 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 Securities 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.
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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 claim, and shall be entitled to select counsel for the defense
of such claim with the approval of any parties entitled 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, which counsel shall be designated in writing by the Holders of a
majority of the Shares).
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.
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
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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 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 three 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 three 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 (at any time after it has become
subject to such reporting requirements), (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 internationally 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 in the Purchase Agreement questionnaire, 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 California, as such laws are applied by California courts to agreements
entered into and to be performed in California by and between residents of
California. 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 PURCHASERS
By: ___________________________ By: __________________________
Its: __________________________ Its: __________________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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EXHIBIT A
LIST OF PURCHASERS
Vertex Technology Fund Pte. Ltd.
c/o Vertex Management, Inc.
0 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, XX 00000
