Exhibit 10.04
VERSANT
CORPORATION
RETENTION INCENTIVE
AGREEMENT
This Retention Incentive Agreement
(the “ Agreement ”) is made and entered into
effective as of September 9, 2009 (the “ Effective
Date ”), by and between JERRY WONG (“
Employee ”) and VERSANT CORPORATION, a California
corporation (the “ Company ”).
RECITALS
A.
It is possible that the Company may
in the future consider the possibility of a Change of
Control. The Compensation Committee of the Board of Directors
of the Company (the “ Committee ”) recognizes
that such considerations can be a distraction to Employee and can
cause Employee to consider alternative employment opportunities and
thus believes that it is in the best interests of the Company and
its shareholders to provide Employee an incentive to continue
Employee’s employment with the Company and to maximize the
value of the Company upon a potential Change of Control for the
benefit of its shareholders.
B.
In order to provide Employee with
enhanced security and encouragement to remain with the Company
notwithstanding the possibility of a Change of Control, the
Committee believes it is important to provide Employee with certain
severance benefits upon Employee’s termination of employment
following a Change of Control in certain circumstances.
NOW THEREFORE, in consideration of
the above-recited facts, the mutual agreements of the Company and
Employee contained herein and the continued employment of Employee
by the Company, the parties agree as follows:
1.
Certain
Definitions .
As used in this Agreement, the following terms shall have the
following meanings:
(a)
“ Affiliate ”
means any entity directly or indirectly controlling, controlled by
or under common control with the Company, where
“control” for this purpose means ownership of stock
and/or other equity interest in an entity possessing more than
fifty (50%) of the voting power of such entity.
(b)
“ Cause ” means
any of the following: (i) Employee’s conviction of
or plea of nolo contendere to a felony or a crime involving moral
turpitude; (ii) Employee’s commission of any act of
fraud, dishonesty or willful violence or gross misconduct against
the Company or any of its Affiliates or their properties or assets;
(iii) a material and willful breach of any invention or
technology assignment confidentiality agreement or similar
agreement between Employee and the Company or any Affiliate of the
Company; (iv) Employee’s willful disregard or
disobedience or violation of any of the material stated policies or
rules of the Company that is not susceptible to cure or that
is not cured within five (5) business days after the Company
gives Employee written notice of such disregard, disobedience or
violation; or (v) Employee’s habitual neglect of
Employee’s obligations and duties to the Company (other than
due to Employee’s
Disability) that is not cured within ten
(10) business days after the Company has delivered to Employee
a written notice thereof describing facts constituting such
habitual neglect.
(c)
A “ Change of Control
” means the occurrence of any of the following events:
(i) the consummation of a merger or consolidation of the
Company with or into any corporation or other entity, other
than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to
the consummation of such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity of such merger or
consolidation or of such surviving entity’s parent) more than
fifty percent (50%) of the total voting power represented by the
voting securities of the Company or of such surviving entity or its
parent that are outstanding immediately after such merger or
consolidation; (ii) the sale or other disposition of all or
substantially all of the Company’s assets; or (iii) any
“person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended) becoming the “beneficial owner” (as defined
in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company possessing fifty percent (50%) or more of
the total voting power represented by all the Company’s then
outstanding voting securities.
(d)
“ Code ” means
the United States Internal Revenue Code of 1986, as amended and the
regulations promulgated thereunder.
(e)
“ Disability ”
has the meaning set forth in Section 22(e)(3) of the
Code.
(f)
“ Release ” means
a written general release agreement in a form provided promptly by
the Company pursuant to which Employee grants the Company, its
Affiliates and their respective officers, directors, shareholders
and other related parties a general release of all claims and
demands (but which shall not include any release by Employee of
claims with respect to any contract or arrangement under which
Employee is entitled to indemnification from the Company or any
release of Employee’s rights under this
Agreement).
(g)
“Annual Target
Compensation” shall
mean, at the Trigger Date, solely the sum of
(i) Employee’s then effective annual base salary rate
plus (ii) the amount of Employee’s target annual cash
bonus under the variable incentive compensation plan then in effect
for Employee as approved by the Compensation Committee of the
Company’s Board of Directors (or Employee’s supervisor,
if applicable), or if no such variable incentive compensation plan
is in effect on the Trigger Date, the amount of Employee’
target annual cash bonus under the latest variable incentive
compensation plan of the Company that was most recently in effect
for Employee. For the avoidance of doubt, the term
“Annual Target Compensation” shall not include any
employee benefits, insurance, equity awards, auto or other expense
allowances or any other item not expressly described in the
preceding sentence.
(h)
“ Termination for Good
Reason ” means Employee’s resignation or other
voluntary termination by Employee of Employee’s employment
with the Company with an effective date that is not later than
seventy (70) days after the occurrence of a Good Reason Event (as
defined below) and which is documented by Employee’s delivery
to the Company, within such seventy (70) day period, of written
notice of such resignation or termination identifying the Good
Reason Event(s) that are the basis for such resignation or
termination and stating that such resignation or termination is a
“Termination for Good Reason” due to such
2
identified Good Reason Event(s) (such
notice, a “ Good Reason Notice ”);
provided that such a resignation or voluntary termination by
Employee shall be a “Termination for Good Reason” only
if the Company fails to cure the Good Reason Event(s) that are
identified by Employee in such Good Reason Notice within forty (40)
days after the Company’s receipt of Employee’s Good
Reason Notice. “ Good Reason Event ” means
the occurrence of any of the following events without
Employee’s express written consent thereto: (i) a
material reduction of Employee’s duties, position or
responsibilities relative to Employee’s duties, position or
responsibilities in effect immediately prior to such reduction,
unless Employee is provided with comparable duties, position and
responsibilities;” (ii) the reduction of
Employee’s then current base salary or target incentive
compensation by ten percent (10%) or more ( other
than in connection with a general decrease in the base
salary or target incentive compensation of other similarly situated
executives of the Company); or (iii) the relocation of
Employee’s principal work location to a facility or a
location that is more than thirty (30) miles from Employee’s
then-current principal work location and which increases
Employee’s commute from Employee’s residence by at
least fifty (50) miles. For the avoidance of doubt, neither a
Termination Without Cause nor a termination of Employee’s
employment due to Employee’s death or Disability shall
constitute a Termination for Good Reason or a Good Reason
Event.
(i)
“ Termination Without
Cause ” means any involuntary termination of
Employee’s employment by the Company which is not effected
for Cause ( except for a termination due to Employee’s
death or Disability, neither of which shall constitute a
Termination Without Cause).
2.
Term of Agreement;
Eligibility .
(a)
Term . This Agreement and the Company’s
obligations hereunder shall terminate upon the date that all
obligations of the parties hereto under this Agreement have been
satisfied or, if earlier, on the date prior to consummation of the
first Change of Control occurr
