Versant Corp (VSNT) Terminates UNICOM Merger Agreement, Pays $750K; Actian Offer is Superior

November 21, 2012 12:53 PM EST
On November 21, 2012, the Board of Directors of Versant Corporation (Nasdaq: VSNT), a California corporation (“we” or “Versant”), determined that the Actian Merger Agreement (as defined and described below) represented a “Superior Offer” within the meaning of its previously announced Agreement and Plan of Merger dated as of September 28, 2012 (the “Unicom Merger Agreement”) with UNICOM Systems, Inc. (“UNICOM”) and UNICOM Sub Four, Inc., a California corporation and a wholly owned subsidiary of UNICOM and accordingly terminated the Unicom Merger Agreement pursuant to its terms. In connection with this termination, Versant paid a termination fee of $750,000 to UNICOM. Versant's entry into the Unicom Merger Agreement was described in our Current Report on Form 8-K filed with the Securities and Exchange Commission on October 1, 2012.

On November 21, 2012, Versant entered into an Agreement and Plan of Merger (the “Actian Merger Agreement”) with Actian Corporation, a Delaware corporation (“Actian”) and Actian Sub I, Inc. a California corporation that is a wholly-owned subsidiary of Actian (“Merger Sub”). The Actian Merger Agreement provides for the merger of Merger Sub with and into Versant (the “Merger”), with Versant continuing as the surviving corporation of the Merger and becoming a wholly owned subsidiary of Actian upon consummation of the Merger. The Actian Merger Agreement was unanimously approved by the Board.
Subject to the terms and conditions of the Actian Merger Agreement, upon the time and date on which the Merger is consummated and becomes effective (the “Effective Time”), each share of Versant common stock that is outstanding immediately before the Effective Time (other than shares owned by Actian, Merger Sub, any other wholly owned subsidiary of Actian, or any wholly owned subsidiary of Versant and shares of Versant Common Stock for which dissenters' rights have been validly exercised and not withdrawn) will be cancelled and converted into the right to receive $13.00 in cash, without interest. The Actian Merger Agreement also provides that: (i) each Versant stock option (“Option”) that is outstanding, unexercised and vested as of immediately before the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest, equal to the amount by which $13.00 per share exceeds the exercise price per share of such Option, multiplied by the number of shares as to which such Option is then vested and exercisable; and (ii) each Versant restricted stock unit (“RSU”) that is outstanding and vested but unissued as of immediately before the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest, equal to $13.00 multiplied by the number of shares of common stock as to which such RSU is vested as of immediately before the Effective Time.
Actian and Versant have made customary representations, warranties and covenants to each other in the Merger Agreement, including, among others, covenants that: (i) Versant will conduct its business in the ordinary course consistent with past practice during the interim period between the execution of the Merger Agreement and the Effective Time, (ii) Versant will not engage in certain kinds of transactions during such period without the consent of Actian, (iii) Versant will cause a meeting of the Versant shareholders to be held to consider approval of the Merger Agreement, and (iv) subject to certain customary exceptions, the Board will recommend that Versant's shareholders approve the Actian Merger Agreement. The Actian Merger Agreement also contains a covenant regarding Versant's combined cash and accounts receivable balance at the Effective Time.

Consummation of the Merger is subject to customary conditions, including (i) approval of the holders of a majority of the outstanding shares of Versant Common Stock (the “Stockholder Approval”), (ii) the accuracy of representations and warranties, subject to certain qualifications, (iii) performance of covenants, (iv) absence of any law or order prohibiting consummation of the Merger and (v) the absence of a material adverse effect with respect to Versant.

In the Actian Merger Agreement, Versant has agreed not to: (a) solicit proposals relating to alternative business combination transactions or (b) subject to certain exceptions designed to allow the Board to fulfill its fiduciary duties to Versant's shareholders, enter into discussions concerning, or provide confidential information in connection with, any “Acquisition Proposal” (as defined in the Merger Agreement); provided, however, that Versant may, subject to the provisions of the Merger Agreement, furnish information to, and engage in discussions and negotiations with, a third party that makes an unsolicited Acquisition Proposal not resulting from any willful or intentional breach by Versant of its above-described agreement and that constitutes or could reasonably be expected to lead to, a “Superior Offer” (as defined in the Merger Agreement) if the Board concludes in good faith (after consultation with its financial advisor and outside legal counsel) that failure to do so would be inconsistent with its fiduciary obligations, and certain prior notice and information are given to Actian.

In the event that the Board determines that an Acquisition Proposal constitutes a Superior Offer, Versant may either (i) terminate the Merger Agreement to enter into a definitive agreement with respect to such Acquisition Proposal and pay a termination fee of $1,500,000 (the “Termination Fee”), subject to certain rights of Actian to make a binding offer that the Board determines is at least as favorable to Versant's shareholders as the Superior Offer, or (ii) prior to approval of the Merger and Merger Agreement by Versant's shareholders, effect a “Change of Recommendation” (as defined in the Merger Agreement) by the Board if the Board determines in good faith that failure to do so would be inconsistent with its fiduciary obligations and Versant gives Actian certain advance notice of the Board meeting at which such Change of Recommendation is to be considered. If Versant were to effect a Change of Recommendation as described above, Actian would have a right to terminate the Merger Agreement and receive the Termination Fee.

The foregoing descriptions of the Merger and the Actian Merger Agreement do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full text of the Merger Agreement, which is attached hereto as Exhibit 2.1 and incorporated herein by reference.

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