**Exhibit 10.29**

 

**NON-COMPETITIONAGREEMENT**

 

ThisNON-COMPETITION AGREEMENT (this “***Agreement***”) is made and entered into as of November 19,2002 (the ***“Execution Date”***)by and among VERSANT CORPORATION, a California corporation (“***Versant***”) and MOKUMESOFTWARE, INC., a Delaware corporation (***“Mokume”***), on the one hand, and AJAY JAIN (***“Stockholder***”), onthe other hand.

 

**RECITALS**

 

A.            Concurrently with the execution ofthis Agreement, Versant, VM Merger Corp., a Delaware corporation that is awholly-owned subsidiary of Versant (***“Sub”***), Mokume and Mokume’s stockholders have enteredinto an Agreement and Plan of Reorganization dated as of November 19, 2002 (the“***Plan***”), whichprovides for the merger (the “***Merger***”) of Sub with and into Mokume, with Mokume to bethe surviving corporation of the Merger. Upon the effectiveness of the Merger, the outstanding shares of MokumeCommon Stock will be converted into the right to receive shares of VersantCommon Stock, in the manner and on the basis set forth in the Plan.  Capitalized terms used in this Agreementthat are not defined herein shall have the same meanings that such terms havein the Plan.

 

B.            Stockholder is a principalstockholder of Mokume, owns Common Stock of Mokume and is an officer, directorand key employee of Mokume, and upon the effectiveness of the Merger, willreceive shares of Versant Common Stock having substantial value by virtue ofthe conversion of Stockholder’s Mokume Common Stock in the Merger.  Stockholder’s talents and abilities arecritical to Mokume’s ability to continue to successfully carry on its businessand to Versant’s ability to realize value from the Merger in exchange for thesubstantial consideration Versant will pay to Mokume’s stockholders (includingStockholder) to acquire Mokume and its stock and business in the Merger.

 

C.            One of the material conditionsprecedent to the obligation of Versant to consummate the Merger under the Planis that Stockholder has executed, entered into and is bound by this Agreementwith Versant and Mokume.  Stockholder istherefore entering into this Agreement as a material inducement andconsideration to Versant to enter into the Plan, to issue the considerationpayable to Stockholder and the other Mokume stockholders in the Merger and toconsummate the Merger, and to ensure that Versant effectively acquires thegoodwill of Mokume.

 

NOW,THEREFORE, in consideration of the facts stated in the foregoing recitals andthe promises made herein, Versant, Mokume and Stockholder hereby agree asfollows:

 

**1.             Effectiveness of Obligations.**  This Agreement shall become effective if andonly if the Merger is consummated, and shall become effective upon the date andtime that the Merger is consummated and becomes legally effective (such dateand time being hereinafter referred to as the ***“Effective Time”***).

 

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**2.             Certain Definitions.**

 

(a)           Affiliate.  As used herein, the term ***“Affiliate”*** will havethe meaning given to such term in Rule 405 of Regulation C promulgated underthe Securities Act of 1933, as amended, and refers both to a present and futureAffiliate.

 

(b)           Real-Time Computing Business.  As used herein, the term “***Real-Time Computing Business***”means the business of developing, marketing and supporting Real-Time ComputingProducts (as defined below) and/or providing Real-Time Computing Services (asdefined below).  “***Real-Time Computing Products***” means softwareproducts that have significant real-time computing components and are designedto provide an enterprise with real-time access to information in order toenhance the enterprise’s business. Real-Time Computing Products may include, without limitation, adaptersto real-time devices, connectivity software, business rules engines, datamanagement software and industry specific applications or templates designedfor real-time computing applications that come within the above definition ofReal-Time Computing Products.  “***Real-Time Computing Services***”means services provided with respect to (i) the installation, support,maintenance, training or use of Real-Time Computing Products or (ii) real-timecomputing projects for enterprises with real-time computing applications.  Real-Time Computing Services may include,without limitation, design consultation, implementation consultation,programming, implementation, testing, documentation, project management,integration, and performance consulting services that comes within the abovedefinition of Real-Time Computing Services.

 

(c)           Competing Business.  As used herein, the term “***Competing Business***”means (i) any business that is competitive with or is substantially similar tothe Real-Time Computing Business or (ii) any business that involves providingsoftware, outsourcing services or software support services to any persons orentities who were customers of Mokume on or before the Execution Date.

 

(d)           Covenant Period.  As used herein, the term ***“Covenant Period”***means that period of time beginning on the Effective Time and ending two (2)years after the Effective Time, *provided*, *however*, that if,during the time period beginning on the Effective time and ending on the dayimmediately preceding the second (2nd) anniversary of the EffectiveTime Stockholder ceases to be employed by Versant or a subsidiary of Versant****becauseStockholder’s employment is Terminated Without Cause (as defined below), thenthe Covenant Period will instead end on the earlier to occur of (i) two (2)years after the Effective Time, or (ii) the first date on which Versant failsto pay to Stockholder an installment payment of Severance (as defined below)pursuant to the Employment Agreement (as defined below) when such payment isdue and payable to Stockholder under the terms of the EmploymentAgreement.  For purposes of theforegoing clause (ii), the parties acknowledge and agree that, notwithstandinganything in this paragraph or in the Employment Agreement to the contrary, inorder to extend the Covenant Period pursuant to such clause (ii) beyond thelast date on which a payment of Severance is due to Stockholder under the termsof the Employment Agreement (the “***Last Severance Date***”), Versant shall nevertheless havethe right (exercisable at its sole option and discretion) to voluntarilycontinue to make payments to Stockholder after the Last Severance Date ofamounts of cash equal in amount to (and payable on the same schedule as) themonthly installments of Severance and medical insurance coverage that werepayable under the Employment Agreement

 

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(but, in the case of paymentsfor medical insurance coverage, only for so long as Stockholder and /orStockholder’s spouse is not covered by similar medical coverage provided byanother employer) (“***Extension Payments***”),and for so long as Versant continues to make such Extension Payments on suchschedule the Covenant Period will continue in effect (but not beyond two (2)years after the Effective Time).

 

(e)           Employment Agreement; Severance.  As used herein, the term “***Employment Agreement***”means the employment letter agreement dated as of the Execution Date betweenVersant and Stockholder and entered into pursuant to Section 8.7 of the Plan.As used herein, the term “***Severance***” means the cash severance payments thatVersant has agreed to pay Stockholder under the Employment Agreement in theevent that Stockholder ceases to be employed by Versant or a subsidiary ofVersant because Stockholder’s employment is Terminated Without Cause (asdefined above) on or before November 19, 2004.

 

(f)            Engaging in Business.  As used in Section 3 of this Agreement, eachof the following activities, without limitation, shall be deemed to constitute ***“engaging in a business”***:  to engage in, carry on, work with, beemployed by, consult for, invest in, solicit customers for, have an interest in,own stock or any membership or other equity interest in, advise, lend money to,guarantee the debts or obligations of, contribute, sell or license intellectualproperty to, or permit one’s name or any part thereof to be used in connectionwith, any enterprise or endeavor, either individually, in partnership or inconjunction with any person, firm, association, partnership, joint venture,limited liability company, corporation or other business, whether as principal,agent, stockholder, partner, joint venturer, member, director, officer,employee, consultant, or in any other manner whatsoever.  However, nothing contained in this Agreementshall prohibit Stockholder from (i) being employed by or serving as a consultantto Versant (or any other Affiliate of Versant), (ii) acquiring or holding atany one time less than one percent (1%) of the outstanding securities of anypublicly traded company, (iii) holding stock of Versant, or (iv) acquiring orholding an interest in a mutual fund, limited partnership, venture capital fundor similar investment entity of which Stockholder is not an employee, officeror general partner and has no power to make, participate in or directlyinfluence the investment decisions of such mutual fund, limited partnership,venture capital fund or investment entity.

 

(g)           Surviving Corporation.  As used herein, the term ***“Surviving Corporation”***means Mokume, the surviving corporation of the Merger.

 

(h)           Terminated Without Cause.   As used herein, the term “***Terminated Without Cause***”will have the same meaning given to such term in Part 3 of Exhibit B to thePlan; exceptthat, solely for purposes of this Agreement, theterm “Cause” (as used in the definition of “Terminated Without Cause”) will notbe deemed to include the “Cause” grounds set forth in Exhibit B, Part3(b)(viii) to the plan, relating to substantial under-performance byStockholder of mutually agreed business objectives.

 

**3.             Non-Competition andNon-Solicitation Covenants.**

 

(a)           Non-Competition.  Stockholder hereby covenants and agrees withVersant and Mokume that, at all times during the Covenant Period, Stockholdershall not (except on behalf of Versant or an Affiliate of Versant),either directly or indirectly, engage in any

 

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Competing Business (i) in anystate of the United States or (ii) in any country in which Mokume has conductedbusiness (including, without limitation, any county, state, territory,possession or country in which any customer of Mokume is located or in whichMokume has solicited business). Stockholder acknowledges and agrees with Versant and Mokume that Mokumehas to date engaged in business at a national level in the United States ofAmerica in each state of the United States of America.

 

(b)           Non-Solicitation of Customers.  In addition to, and not in limitation of,the non-competition covenants of Stockholder in Section 3(a) above, Stockholderagrees with Versant and Mokume that, at all times during the Covenant Period,Stockholder will not, either for Stockholder or for any other person or entity(otherthan for Versant and any of its Affiliates), directly orindirectly solicit business from, or attempt to sell, license or provide thesame or similar products or services as are now provided by Mokume, or arecurrently proposed to be provided by Mokume, including without limitation anyproducts or services within the scope of the Real-Time Computing Business.

 

(c)           Non-Solicitation of Employees orConsultants.  In addition to, andnot in limitation of, the non-competition covenants of Stockholder in Section3(a) above, Stockholder agrees with Versant and Mokume that, at all timesduring the Covenant Period, Stockholder will not, either for Stockholder or forany other person or entity, directly or indirectly, solicit, induce or attemptto induce any director, employee, consultant or contractor of Versant, theSurviving Corporation or any of their Affiliates to terminate his or heremployment or his, her or its services with, Versant, the Surviving Corporationor any of their respective Affiliates or to take employment with any otherparty.

 

**4.             Severability**.  The scope and effect of the covenants ofStockholder in this Agreement shall be as broad in time (but not, as regardsthe covenants contained in Section 3 of this Agreement, beyond the applicabletime periods set forth therein), geography, scope of business and in all otherrespects as is permitted by applicable law. Should a court or other body of competent jurisdiction determine thatany term or provision of this Agreement is excessive in scope or duration or isinvalid or unenforceable, then the parties agree that such term or provisionshall not be voided or made unenforceable, but rather shall be modified so asto be enforceable, in accordance with the purposes stated in the precedingsentence and with applicable law, and all other terms and provisions of thisAgreement shall remain valid and fully enforceable.

 

**5.             Remedies**.  Stockholder acknowledges and agrees withVersant and Mokume that, in light of Stockholder’s unique skills, experienceand capabilities, money damages would not adequately compensate Versant orMokume if Stockholder were to breach any of covenants of Stockholder containedin this Agreement.  Consequently,Stockholder agrees that in the event of any such breach, Versant and/or Mokumeshall each be entitled, in addition to any other remedies, to enforce thisAgreement by means of an injunction, specific performance or other equitablerelief.

 

**6.             Successors and Assigns**.  This Agreement and the rights andobligations of Stockholder hereunder are personal to Stockholder and shall notbe assignable, delegable or transferable by Stockholder in any respect.  This Agreement shall inure to the benefit ofthe

 

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permitted successors andassigns of Versant and Mokume, including any successor to or assignee of all orsubstantially all of the business and assets of Versant or Mokume or any otherpart of the business or assets of Versant and/or Mokume, whether by merger,consolidation, sale of stock or assets or other business combination.

 

**7.             Costs of Enforcement**.  If any party to this Agreement seeks toenforce its rights under this Agreement by legal proceedings or otherwise, thenon-prevailing party shall pay all costs and expenses incurred by theprevailing party, including, without limitation, all reasonable attorneys’ andexperts’ fees.

 

**8.             Entire Agreement**.  This Agreement contains all of the terms andconditions agreed upon by the parties relating to the subject matter of thisAgreement and, effective upon the Effective Time of the Merger, shall supersedeany and all prior and contemporaneous agreements (including any non-competitionand non-solicitation agreements between Stockholder and Mokume), negotiations,correspondence, understandings and communications of the parties, whether oralor written, respecting that subject matter (*except* that any non-competition,non-solicitation or other covenants of the type set forth in Section 3 of thisAgreement that are contained in any employee invention assignment and/orconfidentiality agreement executed by Stockholder, or in any employmentagreement executed by Stockholder, with Versant or with the SurvivingCorporation that is in effect at any time during the Covenant Period, shalleach be construed to be a separate, independent and concurrent covenant andobligation of Stockholder that is cumulative and in addition to, and not inlieu of or in conflict with, any of the covenants in Section 3 of this Agreement,and the existence of any such separate, independent and concurrent covenant orcovenants shall have no effect on the covenants contained in Section 3 of thisAgreement).

 

**9.             Governing Law**.  This Agreement shall be governed by andconstrued in accordance with the internal laws of the State of California,excluding that body of law pertaining to conflicts of laws.

 

**10.          Notices**.  All notices and other communicationsrequired or permitted under this Agreement will be in writing and handdelivered, sent by telecopier, sent by certified or registered first classmail, postage pre-paid, or sent by nationally recognized express courierservice.  Such notices and othercommunications will be effective:  (a)upon receipt if hand delivered; (b) five (5) days after mailing if sent bymail; and (c) one (l) day after dispatch if sent by telecopier (with electronicacknowledgment of successful transmission) or express courier, to the followingaddresses, or such other addresses as any party may notify the other parties inaccordance with this Section:

 
| *If to Versant or Mokume:*        |   | *With a copy to:*                          |
|-----------------------------------|--------|--------------------------------------------|
|                              |   |                                       |
| Versant  Corporation              |   | Fenwick  & West LLP                    |
| 6539  Dumbarton Circle            |   | Two Palo  Alto Square                      |
| Fremont, CA  94555                |   | Palo Alto,  CA 94306                       |
| Attention:  President        |   | Attention:  Kenneth A. Linhares, Esq. |
| Fax  Number:  (510) 789-1515 |   | Fax  Number:  (650) 494-1417          |

 

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*If to Stockholder:*

Ajay Jain

[Address]

[Address]

Fax Number: (      )      -        

 

or to such other address aseither party may have furnished to the other in writing in accordance herewith,except that notices of change of address shall only be effective upon receipt.

 

**11.          Counterparts.**  This Agreement may be executed incounterparts, each of which will be deemed an original but all of which, takentogether, constitute one and the same agreement.

 

**12.          Titles. **The titles andcaptions of the sections and paragraphs of this Agreement are included forconvenience of reference only and shall have no effect on the construction ormeaning of this Agreement.

 

**13.          Rules of Construction.**  It is intended by the parties hereto thatthis Agreement shall not be construed against the party that has drafted all orany portion of this Agreement.

 

 

**[The remainder ofthis page has intentionally been left blank]**

 

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IN WITNESSWHEREOF, Stockholder, Versant and Mokume have executed and entered into thisNon-Competition Agreement effective as of the Execution Date.

 

 
| **VERSANT CORPORATION**                         |                                          | **STOCKHOLDER** |   |           |   |
|-------------------------------------------------|-----------------------------------------------|-----------------|--------|----------------|--------|
|                                            |                                          |            |   |           |   |
| By:                                             |   /s/  LEE MCGRATH                  |            | By:    | /s/ AJAY  JAIN |   |   |   |
|                                            |                                          |            |   |           |   |
| Title:                                          | Vice  President, Finance & Administration |            | Name:  | Ajay Jain      |   |   |   |
|                                            | and Chief  Financial Officer                  |            |   |           |   |   |
|                                            |                                          |            |   |           |   |
| **MOKUME SOFTWARE, INC.**                       |                                          |            |   |           |   |
|                                            |                                          |            |   |           |   |
| By:                                             |   /s/  AJAY JAIN                    |            |   |           |   |   |
| Title:  President & Chief Executive Officer |                                          |            |   |           |   |
|                                                 |                                               |                 |        |                |        |  |  |  |  |  |

 

 

**[Signature Page toNon-Competition Agreement]**

 

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