EXHIBIT 99.01
VERSANT
CORPORATION
2005 EQUITY INCENTIVE PLAN
As Adopted June 1, 2005 and
as Amended through April 24, 2009(1)
1.
PURPOSE; EFFECTIVE
DATE . The
purpose of this Plan is to provide incentives to attract, retain
and motivate eligible persons whose present and potential
contributions are important to the success of the Company, its
Parent and Subsidiaries, by offering them an opportunity to
participate in the Company’s future performance through
awards of Options, Restricted Stock and Stock Bonuses. This
Plan will become effective on the first date (the “
Effective Date ”) on which it has been both
(a) adopted by the Board and (b) approved by the
shareholders of the Company. Capitalized terms not
defined in the text are defined in Section 23.
2.
SHARES SUBJECT TO THE PLAN
.
2.1
Number of Shares Available
. Subject to Sections 2.2 and
18, the total number of Shares reserved and available for grant and
issuance pursuant to this Plan (the “ Reserved
Shares ”) will be the sum of (a) the Available
Prior Plan Shares (as defined below) plus (b) any and all
Forfeited Prior Plan Shares (as defined below); provided ,
that the number of Reserved Shares shall not exceed an aggregate of
855,685 Shares, as constituted at the opening of business on the
Effective Date. The “ Available Prior Plan
Shares ” means the number of shares of the
Company’s Common Stock reserved for issuance under the
Company’s 1996 Equity Incentive Plan, as amended (the “
Prior Plan ”) on the Effective Date that, on
the Effective Date, are not (i) issued and outstanding
as a result of the grant or exercise of awards granted under the
Prior Plan or (ii) subject to stock options or other awards
granted under the Prior Plan that are then outstanding.
“ Forfeited Prior Plan Shares ” means
(i) shares of Common Stock issued under the Prior Plan that
are outstanding on the Effective Date and are thereafter
repurchased by the Company at their original issuance price
pursuant to the terms of the Prior Plan and/or agreements entered
pursuant thereto and (ii) the shares of Common Stock that, on
the Effective Date, are subject to any then outstanding stock
option granted under the Prior Plan and which thereafter cease to
be subject to such stock option for any reason other than its
exercise. The Available Prior Plan Shares and all Forfeited
Prior Plan Shares will no longer be available for grant and
issuance under the Prior Plan but will be available for grant and
issuance under this Plan. Subject to Sections 2.2 and
18, (x) Shares that are subject to issuance upon exercise of
an Option granted under this Plan but that cease to be subject to
such Option for any reason other than exercise of such Option,
(y) Shares that are subject to any Award granted under this
Plan but are forfeited or are repurchased by the Company at their
original issue price or (z) Shares that are subject to an
Award granted under this Plan that otherwise terminates without
Shares being issued, will again be available for grant and issuance
in connection with future Awards under this Plan. At all
times the Company shall reserve and keep available a sufficient
number of Shares as shall be required to satisfy the requirements
of all outstanding Options granted under this Plan and all other
outstanding but unvested Awards granted under this Plan. No
more than one million (1,000,000) Shares may be issued under this
Plan pursuant to the exercise of ISOs.
2.2
Adjustment of Shares
. In the event that the number
of outstanding Shares is changed by a stock dividend,
recapitalization, stock split, reverse stock split, subdivision,
combination, reclassification or similar change in the capital
structure of the Company without consideration, then (a) the
number of Shares reserved for issuance under this Plan,
(b) the maximum number of Reserved Shares set forth in
Section 2.1 above, (c) and the maximum number of Shares
that may be issued under this Plan pursuant to the exercise of ISOs
as set forth in Section 2.1 above, (d) the Exercise
Prices of and number of Shares subject to outstanding Options,
(e) the number of Shares subject to other outstanding Awards
and (f) the numbers of Shares referenced in Section 3
below, will each be proportionately adjusted, subject to any
required action by the Board or the shareholders of the Company and
compliance with applicable securities laws; provided ,
however , that fractions of a Share will either
be
(1) Numbers of shares have been
adjusted to reflect the 1-for-10 reverse split of the
Company’s outstanding Common Stock that took effect on
August 22, 2005.
replaced by a cash payment equal to
the Fair Market Value of such fraction of a Share or will be
rounded up to the nearest whole Share, as determined by the
Committee.
3.
ELIGIBILITY
. ISOs (as defined in
Section 5 below) may be granted only to employees (including
officers and directors who are also employees) of the Company or of
a Parent or Subsidiary of the Company. All other Awards may
be granted to employees, officers, directors, consultants,
independent contractors and advisors of the Company or any Parent
or Subsidiary of the Company; provided such consultants,
independent contractors and advisors render bona fide services not
in connection with the offer and sale of securities in a
capital-raising transaction. No person will be eligible to
receive more than 40,000 Shares in any calendar year under this
Plan pursuant to the grant of Awards hereunder, other than new
employees of the Company or of a Parent or Subsidiary of the
Company (including new employees who are also officers and
directors of the Company or any Parent or Subsidiary of the
Company) who are eligible to receive up to a maximum of 60,000
Shares in the calendar year in which they commence their
employment. A person may be granted more than one Award under
this Plan.
4.
ADMINISTRATION
.
4.1
Committee Authority . This Plan will be administered by the
Committee or by the Board acting as the Committee. Subject to
the general purposes, terms and conditions of this Plan, and to the
direction of the Board, the Committee will have full power to
implement and carry out this Plan. Without limitation, the
Committee will have the authority to:
(a)
construe and interpret this Plan,
any Award Agreement and any other agreement or document executed
pursuant to this Plan;
(b)
prescribe, amend and rescind
rules and regulations relating to this Plan;
(c)
select persons to receive
Awards;
(d)
determine the form and terms of
Awards;
(e)
determine the number of Shares or
other consideration subject to Awards;
(f)
determine whether Awards will be
granted singly, in combination with, in tandem with, in replacement
of, or as alternatives to, other Awards under this Plan or any
other incentive or compensation plan of the Company or any Parent
or Subsidiary of the Company;
(g)
grant waivers of Plan or Award
conditions;
(h)
determine the vesting,
exercisability and payment of Awards;
(i)
correct any defect, supply any
omission or reconcile any inconsistency in this Plan, any Award or
any Award Agreement;
(j)
determine whether an Award has been
earned; and
(k)
make all other determinations
necessary or advisable for the administration of this
Plan.
4.2
Committee Discretion
. Any determination made by
the Committee with respect to any Award will be made in its sole
discretion at the time of grant of the Award or, unless in
contravention of any express term of this Plan or Award, at any
later time, and such determination will be final and binding on the
Company and on all persons having an interest in any Award under
this Plan. The Committee may delegate to one or more officers
of the Company the authority to grant an Award under this Plan to
Participants who are not Insiders of the Company.
4.3
Exchange Act Requirements
. During all times that the
Company is subject to Section 16 of the Exchange Act, the
Company will take appropriate steps to comply with the requirements
of SEC Rule 16b-3 (or other rules of the SEC) for the
exemption of awards from the application of
Section 16(b) of the Exchange Act.
5.
OPTIONS
. The Committee may grant
Options to eligible persons and will determine whether such Options
will be Incentive Stock Options within the meaning of the Code (
“ISOs” ) or Nonqualified Stock Options (
“NQSOs” ), the number of Shares subject
to the Option, the Exercise Price of the Option, the period during
which the Option may be exercised, and all other terms and
conditions of the Option, subject to the following:
5.1
Form of Option Grant
. Each Option granted under
this Plan will be evidenced by an Award Agreement which will
expressly identify the Option as an ISO or an NQSO (
“Stock Option Agreement” ), and will
be in such form and contain such provisions (which need not be the
same for each Participant) as the Committee may from time to time
approve, and which will comply with and be subject to the terms and
conditions of this Plan.
5.2
Date of Grant . The date of grant of an Option will be
the date on which the Committee makes the determination to grant
such Option, unless otherwise specified by the Committee. The
Stock Option Agreement and a copy of this Plan will be delivered to
the Participant within a reasonable time after the granting of the
Option.
5.3
Exercise Period;
Vesting . Options
may be exercisable immediately (subject to repurchase pursuant to
Section 12 of this Plan) or may be exercisable within the
times or upon the events determined by the Committee as set forth
in the Stock Option Agreement governing such Option.
Notwithstanding the foregoing: (a) no Option will be
exercisable after the expiration of ten (10) years from the
date the Option is granted; (b) no ISO granted to a person who
directly or by attribution owns more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company
or of any Parent or Subsidiary of the Company (
“Ten Percent Shareholder” )
will be exercisable after the expiration of five (5) years
from the date the ISO is granted; and (c) in no event shall an
Option that is granted to an employee who is a non-exempt employee
for purposes of overtime pay under the Fair Labor Standards Act of
1938 be exercisable earlier than six (6) months after its date
of grant. The Committee also may provide for the exercise of
Options to become exercisable at one time or from time to time,
periodically or otherwise, in such number of Shares or percentage
of Shares as the Committee determines; provided that (subject to
earlier termination of the Option) each Option granted to a
non-officer employee shall vest at the rate of no less than twenty
percent (20%) of the total number of Shares originally subject to
such Option (as such number may be adjusted pursuant to
Section 2) per year over the five (5) year period
beginning on the date such Option is granted, subject to such
person’s continued employment with the Company or Parent or
Subsidiary. Unless the Committee provides otherwise, the
vesting of an Option granted under this Plan may be suspended
during any leave of absence as may be set forth in any Company
policy.
5.4
Exercise Price
. The Exercise Price of an
Option will be determined by the Committee when the Option is
granted and will not be less than 100% of the Fair Market Value of
the Shares on the date of grant (110% in the case of any ISO
granted to a Ten Percent Shareholder). Payment for the Shares
purchased may be made in accordance with Section 8 of this
Plan.
5.5
Method of Exercise
. Options may be exercised
only by delivery to the Company of a stock option exercise
agreement (the
“Exercise Agreement” ) in a form
approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the
restrictions imposed on the Shares purchased under such Exercise
Agreement, if any, and such representations and agreements
regarding Participant’s investment intent and access to
information and other matters, if any, as may be required or
desirable by the Company to comply with applicable securities laws,
together with payment in full of the Exercise Price for the number
of Shares being purchased.
5.6
Termination
. Notwithstanding the exercise
periods set forth in the Stock Option Agreement, exercise of an
Option will always be subject to the following:
(a)
If the Participant is Terminated for
any reason except death or Disability, then the Participant may
exercise such Participant’s Options only to the extent that
such Options would have been exercisable upon the Termination Date
no later than three (3) months after the Termination Date (or
such shorter or longer time period not exceeding five
(5) years after the Termination Date as may be determined by
the Committee, with any exercise beyond three (3) months after
the Termination Date deemed to be an NQSO), but in any event, no
later than the expiration date of the Options.
(b)
If the Participant is Terminated
because of Participant’s death or Disability (or the
Participant dies within three (3) months after a Termination
other than because of Participant’s death or disability),
then Participant’s Options may be exercised only to the
extent that such Options would have been exercisable by Participant
on the Termination Date and must be exercised by Participant (or
Participant’s legal representative or authorized assignee) no
later than twelve (12) months after the Termination Date (or such
shorter or longer time period not exceeding five (5) years
after the Termination Date as may be determined by the Committee,
with any such exercise beyond (a) three (3) months after
the Termination Date when the Termination is for any reason other
than the Participant’s death or Disability, or
(b) twelve (12) months after the Termination Date when the
Termination is for Participant’s death or Disability, deemed
to be an NQSO), but in any event no later than the expiration date
of the Options.
(c)
If a Participant is determined by
the Board to have committed an act of theft, embezzlement, fraud,
dishonesty or a breach of fiduciary duty to the Company or
Parent or Subsidiary, neither such Participant, such
Participant’s estate nor such other person who may then hold
the Option shall be entitled to exercise any Option with respect to
any Shares whatsoever, after termination of service, whether or not
after termination of service such Participant may receive payment
from the Company or Subsidiary for vacation pay, for services
rendered prior to termination, for services rendered for the day on
which termination occurs, for salary in lieu of notice, or for any
other benefits. In making the determination described in this
subsection, the Board shall give the Participant an opportunity to
present evidence to the Board. For the purpose of this
paragraph, termination of service shall be deemed to occur on the
date when the Company dispatches notice or advice to the
Participant that such Participant’s service is
terminated.
5.7
Limitations on Exercise
. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any
exercise of an Option, provided that such minimum number will not
prevent Participant from exercising the Option for the full number
of Shares for which it is then exercisable.
5.8
Limitations on ISO
. The aggregate Fair Market
Value (determined as of the date of grant) of Shares with respect
to which ISOs are exercisable for the first time by a Participant
during any calendar year (under this Plan or under any other
incentive stock option plan of the Company, Parent or Subsidiary of
the Company) will not exceed $100,000. If the Fair Market
Value of Shares on the date of grant with respect to which ISOs are
exercisable for the first time by a Participant during any calendar
year exceeds $100,000, then the Options for the first $100,000
worth of Shares to become exercisable in such calendar year will be
ISOs and the Options for the amount in excess of $100,000 that
become exercisable in that calendar year will be NQSOs. In
the event that the Code or the regulations promulgated thereunder
are amended after the Effective Date of this Plan to provide for a
different limit on the Fair Market Value of Shares permitted to be
subject to ISO, such different limit will be automatically
incorporated herein and will apply to any Options granted after the
effective date of such amendment.
5.9
Modification, Extension or Renewal
. The Committee may modify,
extend or renew outstanding Options and authorize the grant of new
Options in substitution therefor, provided that any such action may
not, without the written consent of a Participant, impair any of
such Participant’s rights under any Option previously
granted. Any outstanding ISO that is modified, extended,
renewed or otherwise altered will be treated in accordance with
Section 424(h) of the Code. The Committee may
reduce the Exercise Price of outstanding Options without the
consent of Participants affected by a written notice to them only
if and to the extent that such Repricing
is permitted under the terms of
Section 15 of this Plan; provided , however ,
that the Exercise Price may not be reduced below the minimum
Exercise Price that would be permitted under Section 5.4 of
this Plan for Options granted on the date the action is taken to
reduce the Exercise Price.
5.10
No Disqualification . Notwithstanding any other provision in
this Plan, no term of this Plan relating to ISOs will be
interpreted, amended or altered, nor will any discretion or
authority granted under this Plan be exercised, so as to disqualify
this Plan under Section 422 of the Code or, without the
consent of the Participant affected, to disqualify any ISO under
Section 422 of the Code.
6.
RESTRICTED STOCK
. A Restricted Stock Award is
an offer by the Company to sell to an eligible person Shares that
are subject to restrictions. The Committee will determine to
whom an offer will be made, the number of Shares the person may
purchase, the price to be paid (the
“Purchase Price” ), the restrictions
to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the
following:
6.1
Form of Restricted Stock Award
. All purchases under a
Restricted Stock Award made pursuant to this Plan will be evidenced
by an Award Agreement ( “Restricted
Stock Purchase Agreement” ) that will be in
such form (which need not be the same for each Participant) as the
Committee will from time to time approve, and will comply with and
be subject to the terms and conditions of this Plan. The
offer of Restricted Stock will be accepted by the
Participant’s execution and delivery of the Restricted Stock
Purchase Agreement and full payment for the Shares to the Company
within thirty (30) days from the date the Restricted Stock Purchase
Agreement is delivered to the Participant. If such
Participant does not
