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 


 


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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 occurring after the
Effective Date of this Agreement, that Employee ceases to be employed by the
Company for any reason.


 


(b)           Eligibility.  In addition, notwithstanding anything in this
Agreement to the contrary, Employee shall not be entitled to receive any
payments or other benefits under Section 4 of this Agreement (or otherwise
under this Agreement) unless and until Employee has been continuously employed
by the Company (or a Company subsidiary) as a full-time employee for at least
nine (9) months prior to the date of the first Change of Control occurring
after the Effective Date of this Agreement.


 


3.             At-Will Employment.  The Company and Employee acknowledge that
Employee’s employment is on an at-will basis and that nothing in this Agreement
is intended to change Employee’s status as an at-will employee.


 


4.             Severance Benefits and Vesting
Acceleration.


 


(a)           Severance and Vesting
Acceleration.  Subject to
the provisions of this Agreement (including without limitation the provisions
of Sections 2, 5 and 6 hereof) if, within the twelve (12) month period
immediately following the consummation of the first Change of Control occurring
after the Effective Date of this Agreement, (i) Employee’s employment with



 


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the Company is terminated by
the Company or its successor (or an Affiliate of the Company or its successor)
in a Termination Without Cause or (ii) Employee terminates Employee’s
employment with the Company as a result of a Termination for Good Reason (the
date of such Termination Without Cause or such Termination for Good Reason, as
applicable, being hereinafter referred to as the “Trigger Date”)
then, after the execution and nonrevocation by Employee of a Release which has
become effective and not subject to revocation by Employee in whole or in part,
Employee shall be entitled to receive the following severance benefits from the
Company described in clause (i) and clause (ii) below:


 


(i)            Cash Payment.  A lump sum payment to Employee of an amount
of cash (in US Dollars) equal to the product obtained by multiplying (A) one-twelfth
(1/12) of Employee’s Annual Target Compensation as of the Trigger Date by (B) the
number of years (including fractions thereof, but not to exceed a maximum of
six (6) years) that Employee has been continuously employed by the Company
as of the Trigger Date; provided,
that for the avoidance of doubt, the maximum amount payable to Employee under
this clause (i) shall in no event exceed fifty percent (50%) of Employee’s
Annual Target Compensation as of the Trigger Date; and


 


(ii)           Stock Option Vesting
Acceleration.  The vesting
of all then outstanding and unvested stock options or other unvested equity
awards granted by the Company to Employee prior to the consummation of such
Change of Control shall accelerate to afford Employee six (6) months of
additional vesting for each year (or fraction thereof) that Employee has been
continuously employed by the Company as of the Trigger Date; provided however,
that notwithstanding the foregoing, the additional vesting that Employee may
obtain under this Section 4(b)(ii) shall not exceed a maximum total
of thirty-six (36) months of additional vesting.


 


Subject to the provisions of Section 6, cash
severance benefits payable pursuant to this Section 4(a) shall be
payable within sixty (60) days of the termination of Employee under the
conditions specified above in this Section 4(a) provided Employee has
executed the Release, and the Release is effective (and not subject to
revocation by Employee in whole or in part) following the execution and
effective date of the Release.


 


All references to the “Change of Control” in this Section 4(a) and
in Section 4(b) shall refer only to the first Change of Control
occurring after the Effective Date of this Agreement and the benefits provided
for in this Section 4(a) shall be payable only once.


 


(b)           Other Terminations.  If Employee’s employment with the Company
terminates other  than as a result of (i) a Termination
Without Cause within the twelve (12) month period immediately following the
consummation of the Change of Control, or (ii) a Termination for Good
Reason by Employee within the twelve (12) month period immediately following
the consummation of the Change of Control, then Employee shall not be entitled
to receive any severance or other benefits pursuant to Section 4(a).  If Employee is eligible to receive the cash
severance and accelerated vesting benefits as set forth in Section 4(a) above,
then the receipt of such benefits shall be the sole entitlement to benefits and
Employee shall not be entitled to any severance benefits under any policies and
plans of the Company or other agreements between the Company and Employee.


 


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5.             Six Month Hold-Back and
Separation from Service.  To the extent (a) any payments or
benefits to which Employee becomes entitled under this Agreement, or under any
agreement or plan referenced herein, in connection with Employee’s termination
of employment with the Company constitute deferred compensation subject to Section 409A
of the Code and (b) Employee is deemed at the time of such termination of
employment to be a “specified employee” under Section 409A of the Code,
then such payments shall not be made or commence until the earliest
of (i) the expiration of the six (6)-month period measured from the date
of Employee’s “separation from service” (as such term is at the time defined in
Treasury Regulations under Section 409A of the Code) from the Company; or (ii) the
date of Employee’s death following such separation from service; provided,
however, that such deferral shall only be effected to the extent
required to avoid adverse tax treatment to Employee, including (without
limitation) the additional twenty percent (20%) tax for which Employee would
otherwise be liable under Section 409A(a)(1)(B) of the Code in the
absence of such deferral.  Upon the
expiration of the applicable deferral period, any payments which would have
otherwise been made during that period (whether in a single sum or in
installments) in the absence of this paragraph shall be paid to Employee or
Employee’s beneficiary in one lump sum (without interest).  Any termination of Employee’s employment is
intended to constitute a “separation from service” as such term is defined in
Treasury Regulation Section 1.409A-1.


 


6.             Limitation on Payments Under Code
Section 280G.  In
the event that the severance and other benefits provided for in this Agreement
or otherwise payable to Employee (a) constitute “parachute payments”
within the meaning of Section 280G of the Code and (b) but for this
Section, would be subject to the excise tax imposed by Section 4999 of the
Code, then, at Employee’s discretion, Employee’s severance and other benefits
under this Agreement shall be payable either (i) in full, or (ii) as
to such lesser amount which would result in no portion of such severance and
other benefits being subject to the excise tax under Section 4999 of the
Code, whichever of the foregoing amounts (after taking into account the
applicable federal, state and local income taxes and the excise tax imposed by Section 4999),
results in the receipt by Employee on an after-tax basis, of the greatest
amount of severance benefits under this Agreement, notwithstanding that all or
some portion of such severance benefits may be taxable under Section 4999
of the Code.   Any such reduction
shall reduce cash payments first followed by reductions in equity compensation
benefits.  Unless the Company and
Employee otherwise agree in writing, any determination required under this Section shall
be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and
binding upon Employee and the Company for all purposes.  For purposes of
making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code.  The Company and Employee shall furnish
to the Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this Section. 
The Company shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Section.


 


7.             Successors.


 


(a)           Company’s Successors.  Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise, 


 


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including, without
limitation, pursuant to a Change of Control) or any purchaser of all or
substantially all of the Company’s business and/or assets shall assume the
Company’s obligations under this Agreement and agree expressly to perform the
Company’s obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession, unless otherwise agreed upon in writing by Employee
and such successor.  For all purposes
under this Agreement, the term “Company” shall include any successor to the
Company’s business and/or assets.


 


(b)           Employee’s Successors.  Without the written consent of the Company,
Employee shall not assign or transfer this Agreement or any right or obligation
under this Agreement to any other person or entity.  Notwithstanding the foregoing, the terms of
this Agreement and all rights of Employee hereunder shall inure to the benefit
of, and be enforceable by, Employee’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.


 


8.             Notices.  Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or, when mailed for deliveries within
the United States, by U.S. registered or certified mail, return receipt
requested and postage prepaid.  In the
case of Employee, mailed notices shall be addressed to Employee at the home
address which Employee most recently communicated to the Company in
writing.  In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all
notices shall be directed to the attention of its Chief Executive Officer.


 


9.             Arbitration.  The parties agree that any controversy or
claim arising out of or relating to this Agreement, or the breach thereof,
shall be submitted to the American Arbitration Association (“AAA”) and that a neutral arbitrator will be selected in a
manner consistent with its National Rules for the Resolution of Employment
Disputes.  The arbitration proceedings
will allow for discovery according to the rules set forth in the National Rules for the Resolution of Employment Disputes.  All arbitration proceedings shall be
conducted in San Francisco County, California.


 


10.           Miscellaneous Provisions.


 


(a)           No Duty to Mitigate.  Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement, nor shall any such
payment be reduced by any earnings that Employee may receive from any other
source.


 


(b)           Amendment; Waiver.  No provision of this Agreement may be
modified, or amended unless the modification or amendment is agreed to in a
writing signed by Employee and by an authorized officer of the Company (other
than Employee).  Neither party will be
deemed to have waived any of its rights under this Agreement unless such waiver
is set forth in a writing signed by such party. 
No waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall be considered
a waiver of any other condition or provision or of the same condition or
provision at another time.


 


(c)           Integration.  This Agreement represents the entire
agreement and understanding between the parties as to the subject matter herein
regarding severance and 


 


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acceleration benefits and
supersede all prior or contemporaneous agreements, whether written or oral,
with respect to this Agreement, including but not limited to any offer of
employment from the Company to Employee.


 


(d)           Choice of Law; Severability.  The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of the State of California.  The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.


 


(e)           Employment Taxes.  All payments made pursuant to this Agreement
shall be subject to withholding of applicable income and employment taxes.


 


(f)            Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.


 


IN WITNESS WHEREOF, each of the parties has executed
this Retention Incentive Agreement, in the case of the Company by its duly
authorized officer, as of the day and year first above written.


 


	
  COMPANY:

  	
  VERSANT
  CORPORATION.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jochen Witte

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  EMPLOYEE:

  	
  /s/
  Jerry Wong

  
	
   

  	
  Jerry Wong

  



 


Signature
Page to Retention Incentive Agreement


 


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