**Exhibit 10.09**

 

**VERSANT CORPORATION**

 

**INDEMNITY AGREEMENT**

 

**THIS INDEMNITY AGREEMENT** (this “Agreement”)is entered into as of                           between Versant Corporation, a California corporation (the “Company”), and                                                 (“Indemnitee”).

 

**WHEREAS,** it is essential to theCompany to retain and attract as directors, officers and other agents the mostcapable persons available; and

 

**WHEREAS,** Indemnitee is adirector, officer and/or other agent of the Company, and both the Company andIndemnitee recognize the risk of litigation and other claims being assertedagainst such person; and

 

**WHEREAS,** in recognition ofIndemnitee’s need for substantial protection against personal liability and toenhance Indemnitee’s continued and effective service to the Company, theCompany desires to provide for the indemnification of, and the advancing ofexpenses to, Indemnitee to the fullest extent permitted by law, subject tocertain very limited exceptions, as set forth in this Agreement.

 

**NOW, THEREFORE,** in considerationof the above premises and the promises set forth herein, the parties heretoagree as follows:

 

**1.****                                      Certain Definitions.**  As used in this Agreement, the capitalizedterms listed below shall have the meanings ascribed to them as follows:

 

1.1                                 Board.  The Board of Directors of the Company.

 

1.2                                 Expenses.  Any expense, liability, or loss, includingattorneys’ fees, judgments, fines, ERISA excise taxes and penalties, amountspaid or to be paid in settlement, any interest, assessments, or other chargesimposed thereon, and any federal, state, local, or foreign taxes imposed as aresult of the actual or deemed receipt of any payments under this Agreement,paid or incurred in connection with investigating, defending, being a witnessin, or participating in (including on appeal), or preparing for any of theforegoing, in any Proceeding relating to any Indemnifiable Event.

 

1.3                                 Indemnifiable Event.  Any event or occurrence that takes placeeither prior to or after the execution of this Agreement, related to the factthat Indemnitee:

 

(a)                                  isor was a director, officer or other agent of the Company; or

 

(b)                                 whilea director, officer or other agent of the Company is or was serving at therequest of the Company as a director, officer, employee, trustee, agent, orfiduciary of another foreign or domestic corporation, partnership, jointventure, employee benefit plan, trust, or other enterprise; or

 

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(c)                                  wasa director, officer or other agent of a foreign or domestic corporation thatwas a predecessor corporation of the Company or was a director, officer,employee, trustee, agent, or fiduciary of another enterprise at the request ofsuch predecessor corporation; and

 

relatedto anything done or not done by Indemnitee in any such capacity, whether or notthe basis of the Proceeding is alleged action in an official capacity whileserving as described in clauses (a) through (c) above.

 

1.4                                 Proceeding.  Any threatened, pending, or completed action,suit, or proceeding, or any inquiry, hearing, or investigation that Indemniteein good faith believes might lead to the institution of any such action, suit,or proceeding, whether civil, criminal, administrative, investigative or other.

 

**2.****                                      Agreement to Indemnify.**  In the event Indemnitee was, is, or becomes aparty to, or witness or other participant in, or is threatened to be made aparty to, or witness or other participant in, a Proceeding by reason of (orarising in part out of) an Indemnifiable Event, the Company shall indemnifyIndemnitee from and against any and all Expenses to the fullest extentpermitted by law, as the same exists or may hereafter be amended or interpreted(but in the case of any such amendment or interpretation, only to the extentthat such amendment or interpretation permits the Company to provide broaderindemnification rights than were permitted prior thereto).  The rights to receive indemnification and theadvancement of Expenses under this Agreement are not exclusive of any otherrights which Indemnitee may be entitled or subsequently entitled under anystatute, the Company’s Articles of Incorporation or Bylaws, by vote of theshareholders or the Board, or otherwise. To the extent that a change in applicable law (whether by statute orjudicial decision) or the Bylaws permits greater indemnification than iscurrently provided for an Indemnifiable Event, Indemnitee shall be entitled tosuch greater indemnification under this Agreement.

 

2.1                                 Partial Indemnification.  If Indemnitee is entitled under any provisionof this Agreement to indemnification by the Company for a portion of Expenses,but not, however, for the total amount thereof, the Company shall neverthelessindemnify Indemnitee for the portion of such Expenses to which Indemnitee isentitled.

 

2.2                                 Contribution. If the Indemnitee is not entitled to theindemnification provided in this Agreement for any reason, then in respect ofany threatened, pending or completed Proceedings in which the Company isjointly liable with the Indemnitee (or would be if joined in such Proceedings),the Company shall contribute to the amount of Expenses payable by theIndemnitee in such proportion as is appropriate to reflect (i) the relativebenefits received by the Company on the one hand and the Indemnitee on theother hand from the transaction from which such Proceeding arose and (ii) therelative fault of the Company on the one hand and of the Indemnitee on theother hand in connection with the Indemnifiable Events which resulted in suchExpenses, as well as any other relevant equitable considerations.  The relative fault of the Company on the onehand and of the Indemnitee on the other hand shall be determined by referenceto, among other things, the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent the circumstances resultingin such Expenses.  The Company agreesthat it would not be just and equitable if contribution pursuant to this section 

 

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weredetermined by pro rata allocation or any other method of allocation which doesnot take account of the foregoing equitable considerations.

 

2.3                                 Mandatory Indemnification.  Notwithstanding any other provision of thisAgreement, to the extent that Indemnitee has been successful on the merits(within the meaning of Section 317(d) of the California Corporations Code)in defense of any Proceeding relating in whole or in part to an IndemnifiableEvent or in defense of any issue or matter therein, Indemnitee shall beindemnified against all Expenses incurred in connection therewith.

 

**3.****                                      Expense Advances.**

 

3.1                                 Advance of Expenses to Indemnitee.  Expenses incurred by Indemnitee in anyProceeding for which indemnification may be sought under this Agreement shallbe advanced by the Company to Indemnitee within 30 days after receipt by theCompany of a statement or statements from Indemnitee requesting such advanceand reasonably evidencing the Expenses incurred by Indemnitee (an “ExpenseAdvance”).  If it is ultimatelydetermined by a final judicial decision (from which there is no right ofappeal) that Indemnitee is not entitled to be indemnified by the Company,Indemnitee hereby agrees to repay any amounts advanced by the Company underthis Section 3.  Indemnitee agreesto execute any further agreements regarding the repayment of Expenses as theCompany may reasonably request prior to receiving any such advance.

 

3.2                                 Exceptions.  Notwithstanding Section 3.1, the Companyshall not be obligated for any Expense Advance under this Section 3 forany expenses incurred by the Indemnitee to the extent such arise from a lawsuitfiled directly by the Company against the Indemnitee if an absolute majority ofthe members of the Board reasonably determines in good faith, within forty-five(45) days of Indemnitee’s request to be advanced expenses, that the facts knownto them at the time such determination is made demonstrate clearly andconvincingly that the Indemnitee acted in bad faith.  The Company may not avail itself of this Section 3.2as to a given lawsuit if, at any time after the occurrence of the activities oromissions that are the primary focus of the lawsuit, the Company has undergonea change in control.  For this purpose achange in control shall mean a given shareholder or group of affiliatedshareholders increasing their beneficial ownership interest in the Company byat least 20 percentage points without advance Board approval.

 

**4.****                                      Notification and Defense of Proceeding.**

 

4.1                                 Notice of Claim.  Indemnitee shall give written notice to theCompany promptly after Indemnitee has actual knowledge of any Proceeding as towhich indemnification may be sought under this Agreement.  The failure of Indemnitee to give notice, asprovided in this Section 4.1, shall not relieve the Company of itsobligations to provide indemnification under this Agreement; however, theamounts to which Indemnitee may be indemnified shall be reduced to the extentthat the Company has been prejudiced by such failure.

 

4.2                                 Defense.  With respect to any Proceeding, the Companywill be entitled to participate in the Proceeding at its own expense and,except as otherwise provided below, to the extent the Company so desires, theCompany may assume the defense thereof with counsel 

 

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reasonablysatisfactory to Indemnitee.  However, theCompany shall not be entitled to assume the defense of any Proceeding (a)brought by the Company, or (b) as to which Indemnitee has reasonably determinedthat there may be a conflict of interest between Indemnitee and the Company inthe defense of the Proceeding and Indemnitee does in fact assume and conductthe defense.

 

4.2.1  If theCompany assumes the defense, Indemnitee shall furnish such informationregarding Indemnitee or the Proceeding in question, as the Company mayreasonably request and as may be required in connection with the defense orsettlement of such Proceeding and shall fully cooperate with the Company inevery other respect.  Except as providedin Section 4.3 below, if the Company assumes the defense of theProceeding, the Company shall take all necessary steps in good faith to defend,settle or otherwise dispose of the Proceeding.

 

4.2.2  Afternotice from the Company to Indemnitee of its election to assume the defense ofany Proceeding, the Company will not be liable to Indemnitee under thisAgreement or otherwise for any Expenses in excess of $10,000 subsequentlyincurred by Indemnitee in connection with the defense of such Proceeding otherthan reasonable costs of investigation or as otherwise provided in clauses (a)through (c) below.  Indemnitee shall havethe right to employ Indemnitee’s own counsel in such Proceeding, but allExpenses related thereto in excess of $10,000 incurred after notice from theCompany of its assumption of the defense shall be at Indemnitee’s expense,unless:  (a) the employment of counsel byIndemnitee has been authorized by the Company; (b) Indemnitee has reasonablydetermined that there may be a conflict of interest between Indemnitee and theCompany in the defense of the Proceeding, but Indemnitee does not, in fact,assume and conduct the defense; or (c) the Company has not, in fact, assumedand is not conducting the defense of such Proceeding.

 

**5.****                                      Enforcement.**  The Company expressly confirms and agreesthat it has entered into this Agreement and assumed the obligations imposed onit hereby in order to induce Indemnitee to continue as a director, officer orother agent of the Company, and acknowledges that Indemnitee is relying uponthis Agreement in continuing in such capacity. Indemnitee shall have the right to enforce his indemnification rightsunder this Agreement by commencing litigation in any court in the State ofCalifornia having subject matter jurisdiction thereof and in which venue isproper.  Likewise, the Company may seekjudicial determination of its obligations under this Agreement.  The Company and Indemnitee each herebyconsent to service of process and to appear in any such proceeding.

 

5.1                                 Defenses; Burden of Proof.  It shall be a defense to any action broughtby Indemnitee or the Company concerning enforceability of this Agreement thatit is not permissible under applicable law for the Company to indemnifyIndemnitee for the amount claimed.  Inconnection with any such action or any determination as to whether Indemniteeis entitled

 

to beindemnified hereunder, the burden of proof shall be on the Company.

 

5.2                                 Presumptions.  Neither the failure of the Company (includingits Board or shareholders) to have made a determination prior to the commencementof such action that indemnification is proper under the circumstances becauseIndemnitee has met the standard of conduct set forth in applicable law, nor anactual determination by the Company (including its Board or shareholders) thatIndemnitee has not met such applicable standard of conduct, shall be a defenseto the action or create a presumption that Indemnitee has not met theapplicable 

 

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standardof conduct.  For purposes of thisAgreement, the termination of any claim, action, suit or proceeding, byjudgment, order, settlement (whether with or without court approval),conviction, or upon a plea of nolo contendere, or its equivalent, shall notcreate a presumption that Indemnitee did not meet any particular standard ofconduct or have any particular belief or that a court has determined thatindemnification is not permitted by applicable law.

 

5.3                                 Equitable Relief.  The Company agrees that the Company’s failureto make indemnification payments or Expense Advances to Indemnitee shall causeirreparable damage to Indemnitee, the exact amount of which is impossible toascertain, and for this reason agrees that Indemnitee shall be entitled to suchinjunctive or other equitable relief as shall be necessary to adequatelyprovide for payment or reasonably anticipated payments.

 

5.4                                 Indemnification for Expenses Incurred inEnforcing Rights.  Except as setforth in Sections 3.2 and 6, the Company shall indemnify Indemnitee against anyand all Expenses and, if requested by Indemnitee, shall (within thirty daysafter such request) advance such Expenses to Indemnitee, that are incurred byIndemnitee in connection with any claim or action asserted against or broughtby Indemnitee for indemnification of Expenses or payment of Expense Advances bythe Company under this Agreement or any other agreement or under applicable lawor the Company’s Articles of Incorporation or Bylaws now or hereafter in effectrelating to indemnification for Indemnifiable Events.  Any Expenses so paid shall be consideredExpense Advances under Section 3 above.

 

**6.****                                      Exceptions.**  Subject only to Section 2.3 above andnotwithstanding any other provision of this Agreement, the Company shall not beobligated pursuant to the terms of this Agreement:

 

6.1                                 ClaimsInitiated by Indemnitee.  Toindemnify or advance expenses to the Indemnitee in connection with anyProceeding initiated by Indemnitee unless the Company has joined in, or theBoard has consented to, the initiation of such Proceeding, or the Proceeding isone to enforce rights under this Agreement;

 

6.2                                 UnauthorizedSettlements.  To indemnify Indemniteeto the extent Indemnitee settles or otherwise disposes of a Proceeding orcauses the settlement or disposal of a Proceeding without the Company’s expressprior written consent (which shall not be unreasonably withheld) unlessIndemnitee receives court approval for such settlement or other dispositionwhere the Company had the opportunity to oppose Indemnitee’s request for suchcourt approval;

 

6.3                                 NoOpportunity to Defend.  To indemnifyor advance expenses to Indemnitee with regard to any judicial award if theCompany was not given a reasonable and timely opportunity, at its expense, toparticipate in the defense of such action unless the Company’s participation insuch Proceeding was barred by this Agreement or the court in such Proceeding;

 

6.4                                 SecuritiesLaw Actions.  To indemnify theIndemnitee on account of any suit in which judgment is rendered against theIndemnitee for an accounting of profits made from the purchase or sale by theIndemnitee of securities of the Company pursuant to the provisions of 

 

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Section 16(b)of the Securities Exchange Act of 1934 and amendments thereto or similar provisionsof any federal, state or local statutory law;

 

6.5                                 Proceedingto Enforce Agreement.  To indemnifyor advance expenses to the Indemnitee for any expenses incurred by theIndemnitee with respect to any Proceeding instituted by Indemnitee to enforceor interpret this Agreement, if a court of competent jurisdiction determinesthat each of the material assertions made by the Indemnitee in such Proceedingwas not made in good faith or was frivolous; or

 

6.6                                 UnlawfulIndemnification.  To indemnify oradvance expenses for any acts, omissions, transactions or circumstances forwhich indemnification is prohibited by applicable state or federal law or untilany preconditions imposed upon, or agreed to by, the Company by or with anycourt or governmental agency are satisfied.

 

**7.****                                      Insurance;Subrogation.**  The Company shallnot be liable under this Agreement to make any payment in connection with anyclaim made against Indemnitee to the extent Indemnitee has otherwise receivedpayment (under any insurance policy, Bylaw, or otherwise) of the amountsotherwise indemnifiable hereunder.  Inthe event of payment under this Agreement, the Company shall be subrogated tothe extent of such payment to all of the rights of recovery of Indemnitee, whoshall execute all papers required and shall do everything that may be necessaryto secure such rights, including the execution of such documents necessary toenable the Company effectively to bring suit to enforce such rights.

 

**8.****                                      General Provisions.**

 

8.1                                 Amendment of this Agreement.  No supplement, modification, or amendment ofthis Agreement shall be binding unless executed in writing by both partieshereto.  No waiver of any of theprovisions of this Agreement shall operate as a waiver of any other provisionshereof (whether or not similar), nor shall such waiver constitute a continuingwaiver.  Except as specifically providedherein, no failure to exercise or any delay in exercising any right or remedyhereunder shall constitute a waiver thereof.

 

8.2                                 Binding Effect.  This Agreement shall be binding upon andinure to the benefit of and be enforceable by the parties hereto and theirrespective successors, assigns, spouses, heirs, and personal and legalrepresentatives.  The indemnification providedunder this Agreement shall continue as to Indemnitee for any action taken ornot taken while serving in an indemnified capacity pertaining to anIndemnifiable Event even though Indemnitee may have ceased to serve in suchcapacity at the time of any Proceeding.

 

8.3                                 Entire Agreement.  This Agreement constitutes the entireagreement between the parties hereto with respect to the subject matter hereof.

 

8.4                                 Remedies Cumulative.  The rights and remedies provided in thisAgreement and by law shall be cumulative and the exercise of any particularright or remedy shall not preclude the exercise of any other right or remedy inaddition to, or as an alternative to, such right or remedy.

 

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8.5                                 Notices.  Any notice required or permitted by thisAgreement shall be given in writing and shall be deemed effectively given uponpersonal delivery or, if mailed, upon deposit with the United States PostOffice by certified mail, return receipt requested, postage prepaid or anationally recognized express courier, to the address for the recipient setforth on the signature page hereto or to such other address as the recipientshall hereafter have noticed the sending party in the manner set forth above.

 

8.6                                 Headings.  Descriptive headings contained herein are forconvenience of reference only and shall not affect the meaning orinterpretation of this Agreement.

 

8.7                                 References.  Any reference in this Agreement to theindemnity provisions of the Company’s Articles of Incorporation or Bylaws, theCalifornia Corporations Code or to any applicable law shall refer to suchprovisions as they shall be amended from time to time or to any successorprovision, except that any change in the Company’s Articles of Incorporation orBylaws shall only apply to the extent that such amendment permits the Companyto provide broader indemnification rights to Indemnitee than currentlyprovided.

 

8.8                                 Severability.  Any provision of this Agreement, which isunenforceable in any jurisdiction, shall be ineffective in such jurisdiction tothe extent of such unenforceability without invalidating the remainingprovisions of this Agreement, and any unenforceability in any jurisdictionshall not invalidate or render unenforceable such provision in any otherjurisdiction.

 

8.9                                 Applicable Law.  The rights and obligations under thisAgreement shall be governed by, and construed in accordance with, the laws ofthe State of California applicable to contracts between California residentsmade and to be performed entirely within such State.

 

8.10                           Interpretationof Agreement.  It is understood thatthe parties hereto intend this Agreement to be interpreted and enforced so asto provide indemnification and advancement of expenses to the Indemnitee to thefullest extent now or hereafter permitted by law, except as expressly limitedherein.

 

8.11                           Counterparts.  This Agreement may be executed in one or morecounterparts, which shall together constitute one agreement.

 

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**IN WITNESS WHEREOF,** thisIndemnity Agreement has been entered into effective as of the date firstwritten above.

 

 
|       | **VERSANT CORPORATION** |
|------------|-------------------------|
|       | ** **              |
|       |                    |
|       | By:                     |   |
|       |                    |   |
|       |                    |   |
|       | Address:                | 6539 Dumbarton Circle |
|       |                    | Fremont, CA 94555 |
|       |                    |   |
|       |                    |
| ** ** | **INDEMNITEE:**         | Signature: |   |
|       |                    |
|       | Name:                   |   |
|       |                    |
|       | Address:                |   |
|       |                    |
|       |                    |   |
|            |                         |  |  |  |  |  |  |  |

 

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