<PAGE> 1
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): April 2, 1999
OMNIS TECHNOLOGY CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 0-16449 94-3046892
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(State or jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
981 INDUSTRIAL WAY, BUILDING B
SAN CARLOS, CALIFORNIA 94070
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(Address, including zip code, of principal executive offices)
Registrant's Telephone Number, Including Area Code: (650) 642-7100
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(Former name or former address, if changed since last report)
================================================================================
Item 5. Other Events.
On March 19, 1999, the Board of Directors of Omnis Technology Corporation
(the "Company") authorized the issuance of 300,000 shares of Series A
Convertible Preferred stock (the "Preferred Shares") and 7,600,000 shares of
Common stock (the "Common Shares") (collectively, the Preferred Shares and the
Common Shares shall be referred to as the "Shares"). The Restated Articles of
Incorporation of the Company vest in the Board of Directors the authority to
issue such Shares. On March 31, 1999 the Company filed with the Secretary of
State of Delaware a Certificate of Designations setting forth the rights,
preferences and privileges of the Preferred Stock.
Pursuant to the terms of the Letter of Intent executed by and between the
parties on February 22, 1999, on March 31, 1999 the Company entered into stock
purchase agreements with Astoria Capital Partners ("Astoria"), an affiliate of
an existing shareholder, Gwyneth Gibbs, president of the Company and certain
members of the Board of Directors or their affiliates.
Under the terms of the Stock Purchase Agreement with Astoria, the Company
agreed to issue and Astoria agree to purchase 300,000 Preferred Shares at a
purchase price of $1.6667 per share for an aggregate purchase price of $500,000
and 2,543,344 Common Shares at a purchase price of $0.25 per share, for an
aggregate purchase price of $635,836 (collectively, the "Astoria Shares"). The
Astoria Shares were issued and sold to Astoria in consideration of the
cancellation of the indebtedness of the Company to Astoria.
The Company also entered into a Common Stock Purchase Agreement with
Astoria whereby Astoria purchased 1,000,000 Common Shares at a price of $0.25
per share for an aggregate purchase price of $250,000. The Common Stock
Purchase Agreement and Stock Purchase Agreement grant certain registration
rights and rights of first refusal to Astoria.
Pursuant to the terms of the stock purchase agreements entered into with
certain members of the Board of Directors, including Ms. Gibbs (the "Board of
Directors Agreements"), the Company agreed to issue, in the aggregate 4,000,000
Common Shares at a price of $0.25 per share, for aggregate purchase price of
$1,000,000. The Board of Directors Agreements do not grant any registration
rights or rights of first refusal to the parties.
The proceeds from the sale of the Common Shares to the Board of Directors
was used to satisfy the debt owed, in its entirety, to the Omnis Class 2
Creditors (the "Creditors") pursuant to the Work Out Agreement entered into
between the Company and the Creditors. The proceeds from the sale of the Shares
to Astoria will be used for working capital purposes.
Item 7. Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
3.1 Certificate of Designations of Series A Convertible
Preferred Stock of Omnis Technology Corporation
10.1 Stock Purchase Agreement with Astoria dated
March 31, 1999
10.2 Common Stock Purchase Agreement with Astoria dated
March 31, 1999
10.3 Common Stock Purchase Agreement with Gwyneth Gibbs dated
March 31, 1999
10.4 Common Stock Purchase Agreement with Philip and Debra
Barrett Charitable Remainder Trust dated March 31, 1999
10.5 Common Stock Purchase Agreement with RCJ Capital Partners
dated March 31, 1999
10.6 Common Stock Purchase Agreement with Rockport Group, L.P.
dated March 31, 1999
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
<PAGE> 2
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
OMNIS TECHNOLOGY CORPORATION
Date: April 2, 1999 By: /s/ GWYNETH M. GIBBS
----------------------------------
Gwyneth Gibbs, President
-2-
INDEX TO EXHIBITS FILED WITH THE CURRENT REPORT ON FORM 8-K
DATED JANUARY 13, 1999
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
3.1 Certificate of Designations of Series A Convertible
Preferred Stock of Omnis Technology Corporation
10.1 Stock Purchase Agreement with Astona dated March 31, 1999
10.2 Common Stock Purchase Agreement with Astona dated March 31,
1999
10.3 Common Stock Purchase Agreement with Gwyneth Gibbs dated
March 31, 1999
10.4 Common Stock Purchase Agreement with Philip and Debra
Barrett Charitable Remainder Trust dated March 31, 1999
10.5 Common Stock Purchase Agreement with RCJ Capital Partners
dated March 31, 1999
10.6 Common Stock Purchase Agreement with Rockport Group, L.P.
dated March 31, 1999
</TABLE>
<PAGE> 1
PAGE 1
State of Delaware
Office of the Secretary of State
-----------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "OMNIS TECHNOLOGY CORPORATION", FILED IN THIS OFFICE ON THE
THIRTY-FIRST DAY OF MARCH, A.D. 1999, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ EDWARD J. FREEL
--------------------------------------
Edward J. Freel, Secretary of State
Z134169 8100 AUTHENTICATION: 9664273
991127598 DATE: 04-01-99
<PAGE> 2
CERTIFICATE OF DESIGNATIONS OF
SERIES A CONVERTIBLE PREFERRED STOCK OF
OMNIS TECHNOLOGY CORPORATION
Omnis Technology Corporation, a corporation ("Corporation") organized
and existing under the General Corporation Law of the State of Delaware, in
accordance with Section 151(g) of said Law and Article Fifth of the Restated
Certificate of Incorporation of the Corporation, does hereby certify as follows:
That the Restated Certificate of Incorporation of the Corporation
authorizes the issuance of Three Hundred Thousand (300,000) shares of Preferred
Stock, par value $1.00, and expressly vests in the Board of Directors of the
Corporation the authority provided therein to issue any or all of said shares in
one or more series and by resolution or resolutions, the designation, number,
full or limited voting powers, rights, powers, preferences, and relative,
participating, optional and other special rights and the qualifications,
limitations, restrictions, and other characteristics of each series to be
issued.
That pursuant to the authority vested in the Board of Directors of the
Corporation pursuant to Article Fifth of the Restated Certificate of
Incorporation of the Corporation and Section 151 of the General Corporation Law
of the State of Delaware, the Board of Directors of the Corporation by unanimous
vote of its members on March 1, 1999, filed with the minutes of the Board, duly
adopted the following resolution providing for the creation, establishment and
issuance of a series of preferred stock to be designated as "Series A
Convertible Preferred Stock" ("Preferred Stock"):
"RESOLVED: That pursuant to the authority vested in the Board of
Directors of the Corporation pursuant to Article Fifth of the Restated
Certificate of Incorporation of the Corporation and Section 151 of the General
Corporation Law of the State of Delaware, the Board of Directors does hereby
provide for the creation, establishment and issuance of Preferred Stock, $1.00
par value per share, of the Corporation, to be designated as "Series A
Convertible Preferred Stock" (hereinafter the "Preferred Stock"), consisting of
300,000 shares, and does hereby fix and state and express herein the
designations, powers, preferences, rights, qualifications, limitations and
restrictions of such Preferred Stock as follows:
1. Designation and Amount. The shares of such series of Preferred
Stock shall be designated "Series A Convertible Preferred Stock", par value
$1.00 per share, and the number of shares constituting such series shall be
300,000.
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2. The Preferred Stock shall be voting stock. The holders of each
share of Preferred Stock shall be entitled to notice of any shareholders meeting
in accordance with the Bylaws of the Corporation. Each share of Preferred Stock
shall be entitled to that number of votes equal to the number of shares of
Common Stock into which said Preferred Stock is then convertible and shall have
voting rights and powers equal to the voting rights and powers of the Common
Stock (except as otherwise provided herein or as required by law, voting
together with the Common Stock as a single class). Fractional shares shall not
however be permitted and any fractional voting rights resulting from the
foregoing formula shall be rounded down to the nearest whole number of shares.
3. Dividend Rights. The holders of shares of Preferred Stock shall
be entitled to receive dividends, only when, as and if declared by the Board of
Directors of the Corporation, out of funds legally available for the payment of
dividends, at the rate of Twelve and One-Half Cents ($0.125) per share for each
share of Preferred Stock per annum, payable in preference to all other
stockholders, which right to dividends on said Preferred Stock shall be
noncumulative. Such preferential dividends shall be payable in cash; provided
that any holder of Preferred Stock may elect by written notice to be paid any
such preferential dividends in shares of the Common Stock of the Corporation
determined at a valuation of One Dollar ($1.00) per share of Common Stock (as
adjusted to reflect any Adjustment Event as defined by Section 5(a) hereof),
which notice shall be delivered to the Corporation prior to or at the time of
any declaration of preferential dividends. The holders of Preferred Stock
further and in addition shall be entitled to fully participate in and be paid
any dividends declared and paid to the Common Stock or other stock of the
Corporation determined on a basis equal to the number of shares of Common Stock
into which said Preferred Stock is then convertible. No dividends shall be paid
on any Common Stock during any fiscal year of the Corporation unless any then
due and owing dividend is first paid with respect to all outstanding shares of
the Preferred Stock.
4. Liquidation Preference. In the case of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, each
holder of shares of Preferred Stock shall be entitled to receive an amount in
cash equal to One Dollar and Sixty-Six and Seven-Tenths Cents ($1.667) per share
(as adjusted for any stock dividends, combinations, or splits with respect to
such shares) for each share of Preferred Stock held by such stockholder plus any
declared but unpaid dividends thereon, from the assets remaining after payment
of the debts and liabilities of the Corporation, prior and in preference to any
distribution or payment of any of the assets or surplus funds shall be made to
the holders of the Common Stock or other stock of the Corporation. If the assets
available for distribution in any such event shall be insufficient to permit
payment of the full preferential amount to all holders of the Preferred Stock,
then distribution shall be made ratably among such stockholders according to the
amount due to each. After payment to such holders of Preferred
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Stock of such sums, the remaining assets and surplus funds of the Corporation
legally available for distribution, if any, shall be distributed ratably among
all of the stockholders of record of stock of the Corporation in proportion to
the respective number of shares of stock of the Corporation held by each
stockholder, with full right of participation by the holders of the Preferred
Stock on a basis equal to the number of shares of Common Stock into which said
Preferred Stock is then convertible. For these purposes a liquidation,
dissolution or winding up of the Corporation shall be deemed to be occasioned by
or to include the consolidation or merger of the Corporation with or into any
other corporation or entity or the sale or other transfer in a single
transaction or a series of related transactions of all or substantially all of
the assets of this Corporation, or any other reorganization of this Corporation
where the stockholders of this Corporation immediately prior to such
transaction(s) do not retain at least fifty percent (50%) of the voting power of
and interest in the successor entity. Whenever the distribution provided for
herein shall be payable in securities or property other than cash, the value of
the distribution shall be the then fair market value of such securities or
property as determined in good faith by the Board of Directors of the
Corporation.
5. Conversion of Preferred Stock.
(a) Conversion Rate. For purposes hereof the "Conversion
Rate" shall be One and Six Hundred and Sixty-Seven Thousandths (1.667) shares of
Common Stock for one (1) share of Preferred Stock. In effectuating the
conversion any then declared and unpaid dividends on the Preferred Stock shall
be disregarded. In the event of a stock split, reverse stock split, stock
dividend, reorganization or recapitalization without consideration affecting the
number of shares of Common Stock outstanding after the effective date of this
Certificate of Designations ("Adjustment Event"), the Conversion Rate shall be
proportionately adjusted so as to fully preserve the conversion rights of the
Preferred Stock. Upon the occurrence of any Adjustment Event, the Corporation
shall promptly compute such adjustment in the Conversion Rate in accordance with
the terms hereof and shall furnish to each holder of Preferred Stock a
certificate setting forth such adjustment and the facts upon which such
adjustment is based.
(b) Conversion Option. Each share of the Preferred Stock
shall be convertible at the option of the holder thereof, at any time, into
fully paid and nonassessable shares of Common Stock at the applicable Conversion
Rate on the relevant date of conversion hereunder. Before any holder of
Preferred Stock shall be entitled to convert the same into shares of Common
Stock at the option of the holder, such holder shall surrender the
certificate(s) for such shares of Preferred Stock, duly endorsed, at the office
of the Corporation or of any transfer agent for said Preferred Stock, and shall
give written notice to the Corporation at such office that said holder elects to
convert the same; or the holder in addition to such written notice of election
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<PAGE> 5
to convert also shall notify the Corporation or its transfer agent that such
certificates have been lost, stolen or destroyed and shall execute and deliver
an agreement satisfactory to the Corporation to indemnify the Corporation for
any loss incurred by it in connection with such certificates. Such conversion
shall be deemed to have been made immediately before the close of business on
the date of the surrender of the certificate(s) for the Preferred Stock shares
to be converted or upon the execution and delivery to the Corporation of said
agreement of indemnity in the case of any lost, stolen or destroyed
certificates.
(c) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this
Section 5(c), the following definitions shall apply:
(A) "Options" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(B) "Original Issue Date" shall mean the
date on which the first share of the Preferred Stock was first issued.
(C) "Convertible Securities" shall mean any
evidence of indebtedness, shares (other than the Preferred Stock) or other
securities convertible into or exchangeable by their terms for Common Stock.
(D) "Additional Shares of Common Stock"
shall mean all shares of Common Stock issued (or, pursuant to Section 5(c)(iii),
deemed to be issued) by the Corporation after the Original Issue Date, other
than shares of Common Stock issued or issuable at any time:
(1) upon issuance of the Preferred
Stock;
(2) upon conversion of the Preferred
Stock into Common Stock;
(3) to officers, directors, and
employees of, and consultants to, the Corporation pursuant to plans,
arrangements or agreements approved by the Board of Directors;
(4) in connection with bona fide
equipment lease transactions, loan guarantees, commercial loans, bank financing
transactions or technology licenses approved by the Board of Directors;
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(5) pursuant to the acquisition of a
company or other entity or division thereof by the Corporation by merger,
purchase of assets, or other acquisition or reorganization approved by the Board
of Directors whereby the Corporation owns not less than fifty-one percent (51%)
of the voting power of such other company or entity or of the fair market value
of the division thereof;
(6) pursuant to a joint venture
arrangement or other strategic financing arrangement, so long as such issuance
is not primarily for equity financing purposes; or
(7) any other securities issued in
respect of the Preferred Stock, or the Common Stock excluded from the definition
of Additional Shares of Common Stock by this Subparagraph D, upon any stock
split, stock dividend, consolidation, recapitalization or similar event for
which an adjustment is made to the Conversion Price pursuant to Section 5(d)
hereof.
(ii) No Adjustment of Conversion Price. No adjustment
in the then applicable Conversion Price of a share of Preferred Stock shall be
made in respect of the issuance of Additional Shares of Common Stock unless the
consideration per share for an Additional Share of Common Stock issued or deemed
to be issued by the Corporation is less than the respective Conversion Price in
effect on the date of, and immediately prior to such issue, for such share of
Preferred Stock.
(iii) Deemed Issue of Additional Shares of Common
Stock. Except as otherwise provided in Section 5(c)(i), in the event the
Corporation at any time or from time to time after the Original Issue Date shall
issue any Options or Convertible Securities or shall fix a record date for the
determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard to any provisions
contained therein for a subsequent adjustment of such number) of Common Stock
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that Additional Shares of
Common Stock shall not be deemed to have been issued with respect to the
Preferred Stock unless the consideration per share (determined pursuant to
Section 5(c)(v) hereof) of such Additional Shares of Common Stock would be less
than the then applicable Conversion Price of Preferred Stock in effect on the
date of and immediately prior to such issue, or such record date, as the case
may be, and provided further that in any such case in which Additional Shares of
Common Stock are deemed to be issued:
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<PAGE> 7
(A) no further adjustment in the Conversion
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for
any increase in the consideration payable to the Corporation, or decrease in the
number of shares of Common Stock issuable, upon the exercise, conversion or
exchange thereof, the Conversion Price computed upon the original issue thereof
(or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease insofar
as it affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of any such Options
or any rights of conversion or exchange under such Convertible Securities which
shall not have been exercised, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration, be
recomputed as if:
(1) in the case of Convertible
Securities or Options for Common Stock, the only Additional Shares of Common
Stock issued were shares of Common Stock, if any, actually issued upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Corporation for the issue of all such Options, whether
or not exercised, plus the consideration actually received by the Corporation
upon such exercise, or for the issue of all such Convertible Securities which
were actually converted or exchanged, plus the additional consideration, if any,
actually received by the Corporation upon such conversion or exchange, and
(2) in the case of Options or
Convertible Securities, only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options, and
the consideration received by the Corporation for the Additional Shares of
Common Stock deemed to have been then issued was the consideration actually
received by the Corporation for the issue of such Options, whether or not
exercised, plus the consideration deemed to have been received by the
Corporation upon the issue of the Convertible Securities with respect to which
such Options were actually exercised;
(D) no readjustment pursuant to clause (2)
or (3) above shall have the effect of increasing the Conversion Price to an
amount which
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<PAGE> 8
exceeds the lower of (i) the Conversion Price on the original adjustment date,
or (ii) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date; and
(E) in the case of any Options which expire
by their terms not more than 30 days after the date of issue thereof, no
adjustment of the Conversion Price shall be made until the expiration or
exercise of all such Options.
(iv) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event this corporation shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to Section 5(c)(iii)) without consideration or for
a consideration per share less than the applicable Conversion Price in effect on
the date of and immediately prior to such issue, then and in such event, the
then applicable Conversion Price, as the case may be, shall be reduced,
concurrently with such issue, to a price (calculated to the nearest cent)
determined by multiplying such Conversion Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such issue plus the number of shares of Common Stock which the
aggregate consideration received by the Corporation for the total number of
Additional Shares of Common Stock so issued would purchase at such Conversion
Price; and the denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued; provided that, for the purpose of
this Section 5(c)(iv), all shares of Common Stock issuable upon conversion of
outstanding Options, Convertible Securities and the Preferred Stock shall be
deemed to be outstanding, and immediately after any Additional Shares of Common
Stock are deemed issued pursuant to Section 5(c)(iii), such Additional Shares of
Common Stock shall be deemed to be outstanding.
(v) Determination of Consideration. For purposes of
this Section 5(c), the consideration received by the Corporation for the issue
of any Additional Shares of Common Stock shall be computed as follows:
(A) Cash and Property: Such consideration
shall:
(1) insofar as it consists of cash,
be computed at the aggregate amount of cash received by the Corporation
excluding amounts paid or payable for accrued interest or accrued dividends;
(2) insofar as it consists of
property other than cash, be computed at the fair value thereof at the time of
such issue, as determined in good faith by the Board; and
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(3) in the event Additional Shares
of Common Stock are issued together with other shares or securities or other
assets of the Corporation for consideration which covers both, be the proportion
of such consideration so received, computed as provided in clauses (1) and (2)
above, as determined in good faith by the Board.
(B) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to Section 5(c)(iii), relating
to Options and Convertible Securities, shall be determined by dividing
(1) the total amount, if any,
received or receivable by the Corporation as consideration for the issue of such
Options or Convertible Securities, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such consideration) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities by
(2) the maximum number of shares
of Common Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or the conversion or exchange
of such Convertible Securities.
(d) Adjustments to Conversion Price for Certain Other
Events.
(i) Adjustments for Subdivisions, Combinations or
Consolidation of Common Stock. In the event the outstanding shares of Common
Stock shall be subdivided (by stock split, stock dividend, or otherwise), into a
greater number of shares of Common Stock, the Conversion Price then in effect
shall, concurrently with the effectiveness of such subdivision, be
proportionately decreased. In the event the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, the Conversion Price then in effect
shall, concurrently with the effectiveness of such combination or consolidation,
be proportionately increased.
(ii) Adjustments for Other Distributions. In the
event the Corporation at any time or from time to time makes, or fixes a record
date for the determination of holders of Common Stock entitled to receive any
distribution payable in securities of the Corporation other than shares of
Common Stock and other than as
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<PAGE> 10
otherwise adjusted in this Section 5, then and in each such event provision
shall be made so that the holders of Preferred stock shall receive upon
conversion thereof, in addition to the number of shares of Common Stock
receivable thereupon, the amount of securities of the Corporation which they
would have received had their respective Preferred Stock been converted into
Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the date of conversion,
retained such securities receivable by them as aforesaid during such period,
subject to all other adjustments called for during such period under this
Section 5 with respect to the rights of the holders of the Preferred Stock.
(iii) Adjustments for Reclassification, Exchange and
Substitution. If the Common Stock issuable upon conversion of any series of the
Preferred Stock shall be changed into the same or a different number of shares
of any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for above), the Conversion Price then in effect shall, concurrently
with the effectiveness of such reorganization or reclassification, be
proportionately adjusted such that the respective Preferred Stock shall be
convertible into, in lieu of the number of shares of such other class or classes
of stock equivalent to the number of shares of Common Stock that would have been
subject to receipt by the holders upon conversion of the respective Preferred
Stock immediately before the change.
(e) Other Conversion Procedures. No fractional shares of
Common Stock shall be issued on conversion of Preferred Stock. In place of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Rate. As soon as practicable after the event of any
conversion of Preferred Stock hereunder, the Corporation shall issue and deliver
at such office to such holder of such Preferred Stock a certificate or
certificates for the number of shares of Common Stock to which the holder shall
be entitled and a check payable to the holder in the amount of any cash payable
in place of fractional shares of Common Stock (after aggregating all shares of
Common Stock issuable to such holder of Preferred Stock on conversion of the
number of such shares of Preferred Stock at the time being converted). If less
than all of the shares represented by such certificates are surrendered for
conversion in the event of an optional conversion, the Corporation shall issue
and deliver to such holder a new certificate for the balance of the Preferred
Stock shares not so converted.
(d) Status of Converted Stock. In the case of any shares of
Preferred Stock converted pursuant to this Section 5, the shares of Preferred
Stock so converted shall be cancelled, shall not be reissuable and shall cease
to be part of the authorized capital stock of the Corporation.
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6. No Preemption Rights. The Preferred Stock shall have no
preemption rights or rights of first refusal.
10
<PAGE> 12
IN WITNESS WHEREOF, Omnis Technology Corporation has duly caused this
Certificate of Designations to be signed and acknowledged by its duly authorized
Secretary this 31st day of March, 1999.
OMNIS TECHNOLOGY CORPORATION
By: /s/ GEOFFREY P. WAGNER
-----------------------------------------------
Geoffrey P. Wagner, Secretary
ATTEST:
/s/ COLLEEN Y. PALMER
---------------------------------------------------
Colleen Y. Palmer, Secretary
<PAGE> 1
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") by and
between OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"),
and ASTORIA CAPITAL PARTNERS, L.P. (the "Purchaser").
WHEREAS, Purchaser is a secured creditor of the Company and the Company
is indebted to Purchaser in the total amount of One Million One Hundred
Thirty-Five Thousand Eight Hundred and Thirty-Six Dollars ($1,135,836) in
principal and accrued interest (collectively "Astoria Indebtedness") as of March
31, 1999; and
WHEREAS, the parties desire to satisfy and discharge the Astoria
Indebtedness by the transfer to Purchaser of shares of the Preferred and Common
Stock of the Company in full payment thereof.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and representations and warranties of the parties hereto and other good and
valuable consideration, receipt of which is acknowledged, the parties hereto
agree as follows:
1. AUTHORIZATION AND SALE OF PREFERRED AND COMMON STOCK.
(a) Preferred Authorization. The Company will authorize the sale
and issuance of Three Hundred Thousand (300,000) shares of its Series A
Convertible Preferred Stock, par value $1.00 ("Preferred Shares") having the
rights, privileges and preferences as set forth in the Certificate of
Designations (the "Certificate of Designations") in the form attached to this
Agreement as Exhibit A. The shares of Common Stock into which the Preferred
Shares will be convertible are referred to herein as the "Conversion Stock."
(b) The Company will also authorize the sale and issuance of
7,600,000 shares of its Common Stock, $0.10 par value ("Common Shares"), having
the rights, privileges and preferences as set forth in the Restated Certificate
of Incorporation of the Company in the form attached to this Agreement as
Exhibit B ("Restated Certificate of Incorporation"). The foregoing Preferred
Shares and Common Shares shall be collectively referred to herein as the
"Shares".
(c) Sale of Shares; Purchase Prices. Subject to the terms and conditions hereof,
the Company will issue and sell to Purchaser, and the Purchaser will buy from
the Company, (i) Three Hundred Thousand (300,000) Preferred Shares at a purchase
price of One Dollar and Sixty-Six and Sixty-Seven Hundredths Cents ($1.6667) per
share, for an aggregate purchase price of Five Hundred Thousand Dollars
($500,000); and (ii) 2,543,344 Common Shares at a purchase price of Twenty-Five
Cents ($0.25) per
<PAGE> 2
share, for an aggregate purchase price of Six Hundred Thirty-Five Thousand Eight
Hundred and Thirty-Six Dollars ($635,836), as further provided herein.
(d) The parties hereby acknowledge and agree 300,000 Preferred
Shares and 2,543,344 Common Shares are being issued by the Company to the
Purchaser in consideration for the cancellation of the indebtedness of the
Company currently held by Purchaser as evidenced by the promissory note dated
___________ issued by the Company in favor of Purchaser with a current balance
equal to the Astoria Indebtedness (the "Astoria Note"). Concurrently with the
issuance of the Shares, as contemplated by this Agreement, the Astoria Note
shall be returned to the Company stamped "Cancelled" and the Astoria Note shall
thereafter be treated for all purposes as if the Astoria Note had been paid in
full. The Purchaser shall no longer hold any indebtedness of the Company upon
issuance of the Shares in accordance with this paragraph 1.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of the
Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP,
350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10:00 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or at
such other time and place upon which the Company and the Purchaser shall agree
(the date of the Closing is hereinafter referred to as the "Closing Date").
(b) Delivery. At the Closing, the Company shall deliver to the
Purchaser executed certificates registered in the name of the Purchaser
representing the number of the Preferred Shares and the number of the Common
Shares being purchased by Purchaser, against payment of the purchase price
therefor.
(c) Payment of Purchase Price. At the Closing, Purchaser shall
execute and deliver to the Company the instruments of discharge and satisfaction
of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C;
and the full release of the security interest held by Purchaser to secure the
Astoria Indebtedness attached hereto and made a part hereof as Exhibit D.
(d) Delivery of Evidence of Payment of Other Indebtedness. At the
Closing and as a condition thereof, the Company shall deliver to Purchaser
written evidence of the full payment and discharge of all Option 2 Creditors of
Omnis Software, Inc. and related administrative fees, which indebtedness as of
the Effective Date equaled _________________________ ($____________________) in
the aggregate.
(e) Other Documents. At the Closing, the parties also shall
deliver such additional documents or instruments reasonably necessary to
effectuate the
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<PAGE> 3
foregoing transactions and shall reasonably cooperate with each other with
respect thereto.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing in the state or jurisdiction of
its incorporation. The Company and each of its subsidiaries has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing Date
all requisite legal and corporate power and authority to execute and deliver
this Agreement, to sell and issue the Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement, including without
limitation, the sale and issuance of the Shares.
(c) Capitalization. The authorized capital stock of the Company
consists of Twenty Million (20,000,000) shares of Common Stock, of which
2,080,495 shares are issued and outstanding prior to Closing, and Three Hundred
Thousand (300,000) shares of Series A Convertible Preferred Stock, none of which
is issued and outstanding prior to the Closing; all of which shall be issued to
Purchaser pursuant to terms of this Agreement. The outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and were issued in compliance with all applicable federal and
state securities laws. The Preferred Stock has the rights, preferences,
privileges and restrictions set forth in the Certificate Of Designations of
Series A Convertible Preferred Stock of Omnis Technology Corporation
substantially in the form attached hereto and made a part hereof of Exhibit C
("Certificate of Designations"), which shall be filled with the Delaware
Secretary of State prior to Closing Date and shall be subject to the further
action of the Board of Directors and Preferred shareholders of the Company in
accordance with Section 151 of the Delaware general corporation. The Company
will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance
upon conversion of the Preferred Shares pursuant to the terms of the current
Certificate of Designations, and the Company has also reserved approximately
1,128,199 shares of Common Stock for issuance to employees, consultants or
directors under stock plans or arrangements approved by the Board of Directors
of the Company prior to the Effective Date, of which approximately 325,000
shares of Common Stock are subject to stock options or warrants or other rights
granted under such plans as of the Effective Date. There are no other options,
warrants, conversions, privileges or other contractual rights presently
outstanding to purchase or otherwise acquire any shares of the Company's stock
or other securities, except for a de minimus amount which may be unaccountable
due to past record keeping practices.
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<PAGE> 4
(d) Authorization. This Agreement, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, such enforceability being subject only
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies. The Shares, when issued in compliance with the
provisions of this Agreement, and the Conversion Stock when issued upon
conversion of the Preferred Shares, will be validly issued (including, without
limitation, issued in compliance with applicable state and federal securities
laws), fully paid and nonassessable and will have the rights, preferences and
privileges respectively described in the Restated Certificate of Incorporation
of the Company including the Certificate of Designations as then constituted;
and the Shares and the Conversion Stock shall be free of any liens or
encumbrances, other than any liens or encumbrances created by or imposed upon
the holders thereof through no action of the Company; provided however that the
Shares and the Conversion Stock will be subject to restrictions on transfer
under state and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital stock
of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a
corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to Purchaser
its audited balance sheet and statement of operations for the period ended March
31, 1998 and its combined unaudited balance sheet and statement of operations
for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports. The Company has delivered to Purchaser its Annual
Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports
on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and
December 31, 1998 as filed with the Securities and Exchange Commission ("SEC").
Such reports have been duly filed, were in substantial compliance with the
requirements of their respective report forms, were complete and correct in all
material respects as of the dates for which the information was furnished, and
contained (as of such dates) no untrue statement of a material fact nor omitted
to state a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since December 31,
1998, there has not been any material change in the assets, liabilities
condition (financial or otherwise) or results of operations of the Company,
except changes in the ordinary course of business, none of which has had or is
expected to have a material adverse effect on such assets, liabilities
conditions or results of operations.
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<PAGE> 5
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not materially
conflict with or result in any violation of, or default, or give rise to a right
of termination, cancellation or acceleration of any obligation or to a loss of a
material benefit under any provision of the Restated Certificate of
Incorporation or Bylaws of the Company or any legally enforceable contract or
agreement between the Company and any third person or entity or any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or its properties or assets; and the Company is not a party to any
outstanding agreement which material obligation or agreement is inconsistent
with this Agreement.
(i) Governmental Consents. No consent, approval, order or
authorization of, or registration, designation, declaration or filing with, any
local, state or federal governmental authority on the part of the Company is
required in connection with the Company's valid execution and delivery of this
Agreement, or the offer, sale or issuance of the Shares (and Conversion Stock),
or the consummation of any other transaction contemplated hereby, except for the
filing of the Certificate of Designations, which shall be filed by the Company
prior to the Closing, and the filing of a Form D notice under Regulation D under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
post-sale filings required by applicable state securities laws. The offer, sale
and issuance of the Shares (and of the Conversion Stock) in conformity with the
terms of this Agreement are exempt from the registration requirements of Section
5 of the Securities Act and from the qualification requirements of applicable
state securities laws, assuming the accuracy of the representations and
warranties of the Purchaser as set forth in Section 4 of this Agreement.
(j) Litigation. There is no action, proceeding or investigation
pending or, to the knowledge of the Company, threatened, or any basis therefor
known to the Company, that questions the validity of this Agreement, or the
right of the Company to enter into, or to consummate the transactions
contemplated hereby, or which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in the current
equity ownership of the Company. The foregoing includes, without limitation,
actions pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company's employees, their use in
connection with the Company's business of any trade secrets of any of their
former employers, or their obligations under any agreements with prior
employers. The Company (a) is not a party to any lawsuit or similar action or
proceeding, (b) is not a party to or subject to any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality, and (c)
does not intend to initiate any such action, suit, proceeding or investigation.
(k) Full Disclosure. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of a
material
5
<PAGE> 6
fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(l) Brokers or Funders. The Purchaser has not incurred and will
not incur directly or indirectly as a result of any action taken by the Company
or its representatives or agents, any liability for brokerage or funders' fees
or agents' commissions or similar charges in connection with this Agreement or
the transactions contemplated hereby. Company agrees to fully indemnify and
defend and hold harmless the Purchaser from and against all liabilities incurred
by Company or any related party with respect to claims related to investment
banking or funders' fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and expenses (including reasonable
fees or counsel) of investigating and defending such claims.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Purchaser hereby represents and warrants to the Company with respect to
its purchase of the Shares and the Conversion Stock as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares and the
Conversion Stock for investment for its own account, not as a nominee or agent,
and not with the view to or for resale in connection with any distribution
thereof. Purchaser understands that the Shares and the Conversion Stock have not
been, and may not be, registered under the Securities Act of 1933 by reason of a
specific exemption from the registration provisions of the Securities Act, the
availability of which depends in part upon the bona fide nature of the
investment intent and the accuracy of such Purchaser's representations as
expressed herein. No other person will have any direct or indirect beneficial
interest in or right to any of the Shares or Conversion Stock. Purchaser further
acknowledges and understands that any investment in the Company is inherently
speculative and subject to material financial risks and that its entire
investment in the Company could be lost.
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<PAGE> 7
(d) Rule 144. Purchaser acknowledges that the Shares and the
Conversion Stock must be held indefinitely unless subsequently registered under
the Securities Act of 1933 or unless an exemption from such registration is
available. Purchaser is aware of the provisions of Rule 144 promulgated under
the Securities Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including the
requirement that the Shares be held for a minimum of one (1) year and in certain
cases two (2) years, after they have been purchased and paid for within the
meaning of Rule 144.
(e) Authority. Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to discuss
the business, management and financial affairs and prospects of the Company and
its subsidiaries with the Company's management and has had the opportunity to
review the United States facilities of the Company and its subsidiaries.
Purchaser acknowledges and understands that such discussions, as well as any
written information issued by the Company, were intended to describe certain
material aspects of its business and prospects but were not a thorough or
exhaustive description.
(g) Reports. Purchaser has received and reviewed the Company's
Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September
30, 1998 and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not materially
conflict with any legally enforceable contract or agreement between Purchaser
and any third person or entity; and Purchaser is not a party to any outstanding
agreement which any material obligation or agreement is inconsistent with this
Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and will not
incur, directly or indirectly, as a result of any action taken by Purchaser or
its representative or agent, any liability for brokerage or finders' fees or
agents'
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<PAGE> 8
commissions or any similar charges in connection with this Agreement or the
transactions contemplated hereby. Purchaser agrees to fully indemnify and defend
and hold harmless the Company from and against all liabilities incurred by
Purchaser or any related party with respect to claims related to investment
banking or finders fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and expenses (including reasonable
fees of counsel) of investigating and defending such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchaser's obligations to
purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser unless consented to in writing:
(a) Representations and Warranties Correct. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
(c) Certificate of Amendment. The Certificate of Designations
shall have been filed with the Secretary of State of the State of Delaware
authorizing the issuance of the Preferred Shares.
(d) Compliance Certificate. The Company will have delivered to
Purchaser a Certificate dated as of Closing, signed by the Company's President,
certifying that the conditions set forth in Sections 5(a), (b) and (c) have been
fulfilled.
(e) Minimum Investment. The Company at the Closing shall sell
300,000 Preferred Shares having an aggregate purchase price of not less than
$500,000 and 2,543,344 Common Shares having an aggregate purchase price of not
less than $635,836.
(f) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding Astoria's new investment in
the Company.
(g) Delivery of Evidence of Payment of Other Indebtedness. At the
Closing and as a condition thereof, the Company shall deliver to Purchaser
written evidence of the full payment and discharge of all Option 2 Creditors of
Omnis Software, Inc. and related administrative fees, which indebtedness as of
the Effective Date equaled _________________________ ($____________________) in
the aggregate.
8
<PAGE> 9
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and
issue the Shares of the Closing Date is, at the option of the Company, subject
to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the Purchasers
in Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature which
pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchaser at the Closing shall
purchase 300,000 Preferred Shares having an aggregate purchase price of not less
than $500,000 and 2,543,344 Common Shares having an aggregate purchase price of
not less than $635,836.
(d) Payment of Purchase Price. At the Closing, Purchaser shall
execute and deliver to the Company the instruments of discharge and satisfaction
of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C;
and the full release of the security interest held by Purchaser to secure the
Astoria Indebtedness attached hereto and made a part hereof as Exhibit D.
7. Use of Proceeds. The Company shall use the proceeds from the sale of
the Shares as determined, in their sole discretion, by the management of the
Company for corporate purposes.
8. Restrictive Legend. Each certificate representing (i) the Shares,
(ii) the Conversion Stock, and (iii) any other securities issued in respect of
the Shares or Conversion Stock upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall include a legend
in substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
BE REQUIRED TO BEAR THE
9
<PAGE> 10
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
9. Rights of First Refusal. The Company hereby grants to Purchaser (so
long as Purchaser holds at least 300,000 shares of Preferred Stock (or 500,100
shares of Common Stock issued on conversion thereof) (subject to appropriate
proportionate adjustments for stock splits, reverse stock splits, stock
dividend, reorganization or recapitalization without consideration affecting the
number of Shares of Common Stock outstanding) the right of first refusal to
purchase its pro rata share of "New Securities" (as defined in this Section 9)
that the Company may, from time to time propose to sell and issue. Such pro rata
share, for purposes of this right of first refusal, is the ratio of (X) the
number of shares of Common Stock immediately prior to the issuances of New
Securities then owned by Purchaser or issuable upon the conversion of the
Preferred Shares then owned by Purchaser (including shares issuable upon
exercise of options or warrants held by Purchaser), to (Y) the total number of
shares of Common Stock immediately prior to the issuances of New Securities then
outstanding, after giving effect to the conversion of all outstanding
convertible securities (including the Preferred Shares) and the exercise of all
outstanding options. This right of first refusal shall be subject to the
following provisions:
(a) "New Securities" shall mean any Common Stock and Preferred
Stock of the Company whether or not authorized on the date hereof, and rights,
options, or warrants to purchase Common Stock or Preferred Stock and securities
of any type whatsoever that are, or may become, convertible into Common Stock or
Preferred Stock; provided; however, that "New Securities" does not include the
following:
(i) upon conversion of Preferred Shares into Common
Shares;
(ii) to officers, directors, and employees of, and
consultants to, the Corporation pursuant to plans, arrangements or agreements
approved by the Board of Directors;
(iii) in connection with bona fide equipment lease
transactions, loan guarantees, commercial loans, bank financing transactions or
technology licenses approved by the Board of Directors;
(iv) pursuant to the acquisition of a company or other
entity or division thereof by the Corporation by merger, purchase of assets, or
other acquisition or reorganization approved by the Board of Directors whereby
the Corporation owns not less than fifty-one percent (51%) of the voting power
of such other company or entity or of the fair market value of the division
thereof;
10
<PAGE> 11
(v) pursuant to a joint venture arrangement or other
strategic financing arrangement, so long as such issuance is not primarily for
equity financing purposes;
(vi) shares of Common Stock or Preferred Stock issued
pursuant to Section 5 of the Company's Certificate of Designation authorizing
the Shares; and
(vii) shares of Common Stock issued to certain officers
and directors of the Company contemporaneously with the issuance of Shares to
Astoria.
(b) In the event that Company proposes to undertake an issuance
of New Securities, it shall give Purchaser written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Purchaser shall have ten (10)
business days after receipt of such notice to agree to purchase its pro rata
share of such New Securities at the price and upon the terms specified in the
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased.
(c) In the event that Purchaser fails to exercise in full the
right of first refusal within the ten (10) business day period specified above,
the Company shall have one hundred twenty (120) days thereafter to sell (or
enter into an agreement pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within sixty (60) days from the date of said
agreement) the New Securities respecting which the right of Purchaser was not
exercised at a price and upon terms no more favorable to the purchaser thereof
than specified in the Company's notice. In the event the Company has not sold
the New Securities within such one hundred twenty (120) day period (or sold and
issued New Securities in accordance with the foregoing within sixty (60) days
from the date of such agreement) the Company shall not thereafter issue or sell
any New Securities, without first offering such New Securities to Purchaser in
the manner provided above.
(d) The right of first refusal granted under this Section 9 shall
expire upon the date which is two years from the date hereof.
(e) This right of first refusal is nonassignable.
10. Registration Rights.
(a) the Company will register all the Common Shares to be
purchased by Astoria, as well as the Common Stock issuable upon conversion of
the Preferred Shares (collectively, the "Registrable Securities") for resale
under the Securities Act of 1933, as amended, and the securities laws of such
states as the parties may reasonably
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<PAGE> 12
agree upon, on a continuous basis, beginning on a date not more than six months
after the date of the Closing; and
(b) if the registration statement covering the Registrable
Securities (the "Registration Statement") does not become effective within six
months after the date of the Closing, the Company shall reduce the consideration
paid by Astoria for the Registrable Securities by refunding to Astoria 3% of the
"Purchase Price" of the Registrable Securities for each 30-day period (pro-rated
for periods of less than 30 days) by which such effectiveness is delayed. The
Company shall also pay Astoria 3% of the Purchase Price (the "Penalty") for any
period in excess of 30 days that the effectiveness of the Registration Statement
is suspended or the Registration Statement is otherwise unavailable for use by
Astoria, excluding periods during which Astoria may sell the Registrable
Securities without restriction under Rule 144. Further, the parties argue that
the foregoing Penalty may be waived in writing by mutual agreement of the
parties. For these purposes, the Purchase Price shall be an amount equal to the
number of Registrable Securities included in the Registration Statement for
resale by Astoria times the average price per Common Share paid by Astoria
pursuant to the agreements contemplated in the Letter of Understanding (with the
shares issuable upon conversion of the Preferred Stock deemed to have been sold
at $1.00 per share).
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any right to
assign or transfer this Agreement or any of its rights or obligations hereunder
to any third person or entity without the prior written consent of the Company.
Except as limited by the foregoing, the provisions hereof shall inure to the
benefit of and be binding upon the respective officers, directors, shareholders,
affiliates, partners, members, agents, representatives, successors and assigns
of each of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject
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<PAGE> 13
matter not expressly set forth herein, whether written or oral or express or
implied, shall be superseded and of no force or effect. Any modification or
amendment or waiver of this Agreement must be in writing and signed by both
parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set forth in
this Agreement are for convenience only. When the context requires, the plural
shall include the singular and the singular the plural, and any gender shall
include all other genders. No provision of this Agreement shall be interpreted
or construed against any party because such party or its counsel was the drafter
thereof.
(h) Attorney's Fees. In the event suit is brought to enforce or
interpret any part of this Agreement or any of the rights or obligations of any
party hereunder, the prevailing party shall be entitled to recover as an element
of such party's costs of suit, and not as damages, reasonable attorneys' fees
and expenses, court costs and expert witness fees and costs.
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however,
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<PAGE> 14
that such representations and warranties need only be accurate as of the date of
such execution and delivery and as of the Closing.
(j) Expenses. The Company will reimburse Purchaser promptly upon
Purchaser's request for its out-of-pocket legal expenses incurred in connection
with the negotiation of the terms of the transaction contemplated herein and in
the letter of understanding entered into between the parties dated as of
February 22, 1999.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRET
-----------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
PURCHASER
ASTORIA CAPITAL PARTNERS, L.P.
By: /s/ RICK KOE
--------------------------------
Its:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Address and Fax Number:
------------------------------------
------------------------------------
( )
--------- ------------------------
14
<PAGE> 15
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
15
<PAGE> 16
EXHIBIT B
RESTATED CERTIFICATE OF INCORPORATION
16
<PAGE> 17
EXHIBIT C - D
[TO BE INSERTED]
17
<PAGE> 1
EXHIBIT 10.2
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and
ASTORIA CAPITAL PARTNERS, L.P. ("Astoria").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions
hereof, the Company will issue and sell to Astoria and Astoria will buy from the
Company 1,000,000 Shares at a price of $0.25 per share for an aggregate purchase
price of $250,000. Contemporaneously herewith and subject to the same terms and
conditions, the Company will issue and sell to each of the persons and entities
("Additional Purchasers") listed on the Schedule of Purchasers attached hereto
as Exhibit B and the Additional Purchasers will buy from the Company, the total
number of shares of Common Shares specified opposite such Purchaser's name in
column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of
Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of
the Common hereunder shall be held at the offices of Landels Ripley & Diamond,
LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or
waived or at such other time and place upon which the Company and Astoria shall
agree (the date of the Closing is hereinafter referred to as the "Closing
Date").
(b) Delivery. At the Closing, the Company shall deliver to
Astoria a duly executed stock certificate or certificates evidencing the Shares
registered in
1
<PAGE> 2
Astoria's name as set forth above, representing the number of Shares designated
in paragraph 1(b) to be purchased by Astoria, against payment of the purchase
price therefor, by check payable to the Company or wire transfer pursuant to the
Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation
duly organized validly existing and in good standing in the state or
jurisdiction of its incorporation. The Company and each of its subsidiaries has
the requisite corporate power and authority to own and operate its properties
and assets, and to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing
Date all requisite legal and corporate power and authority to execute and
deliver this Agreement, to sell and issue the Shares hereunder, and to carry out
and perform its obligations under the terms of this Agreement, including without
limitation, the sale and issuance of the Shares.
(c) Capitalization. The authorized capital stock of the
Company consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable and were issued in compliance with applicable federal and
state securities laws. The Preferred Stock shall have the rights, preferences,
privileges and restrictions set forth in the Certificate Of Designations of
Series A Convertible Preferred Stock of Omnis Technology Corporation
substantially in the form attached hereto and made a part hereof of Exhibit C
("Certificate of Designations"), which shall be filed with the Delaware
Secretary of State prior to the Closing Date and shall be subject to the further
action of the Board of Directors and Preferred shareholders of the Company in
accordance with Section 151 of the Delaware General Corporation Law. The Company
will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance
upon conversion of the Preferred pursuant to the terms of such Certificate of
Designations, and the Company has also reserved approximately 1,281,199 shares
of Common Stock for issuance to employees, consultants or directors under stock
plans or arrangements approved by the Board of Directors of the Company prior to
the Effective Date, of which approximately 325,000 shares of Common Stock are
subject to stock options or warrants or other rights granted under such plans as
of the Effective Date. There are no other options, warrants, conversions,
privileges or other contractual rights presently outstanding to purchase or
otherwise acquire any Shares
2
<PAGE> 3
of the Company's stock or other securities, except for a de minimus amount which
my be unaccountable due to past record keeping practices.
(d) Authorization. This Agreement, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, such enforceability being
subject only to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued
(including without limitation, issued in compliance with applicable state and
federal securities laws), fully paid and nonassessable and will have the rights,
preferences and privileges described in the Restated Certificate of
Incorporation of the Company; and the Shares shall be free of any liens or
encumbrances, other than any liens or encumbrances created by or imposed upon
the holders thereof through no action of the Company; provided however that the
Shares will be subject to restrictions on transfer under state and/or federal
securities laws.
(e) Subsidiaries. The Company owns all outstanding capital
stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited,
a corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to
Astoria its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports. The Company has delivered to Astoria its Annual
Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports
on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and
December 31, 1998 as filed with the Securities and Exchange Commission ("SEC").
Such reports have been duly filed, were in substantial compliance with the
requirements of their respective report forms, were complete and correct in all
material respects as of the dates for which the information was furnished, and
contained (as of such dates) no untrue statement of a material fact nor omitted
to state a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since December 31,
1998, there has not been any material change in the assets liabilities condition
(financial or otherwise) or results of operations of the Company except changes
3
<PAGE> 4
in the ordinary course of business, none of which has had or is expected to have
a material adverse effect on such assets, liabilities, conditions or result of
operations.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not materially
conflict with or result in any violation of, or default, or give rise to a right
of termination, cancellation or acceleration of any obligation or to a loss of a
material benefit under any provision of the Restated Certificate of
Incorporation or Bylaws of the Company or any legally enforceable contract or
agreement between the Company and any third person or entity or any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or its properties or assets; and the Company is not a party to any
outstanding agreement which material obligation or agreement is inconsistent
with this Agreement.
(i) Governmental Consents. No consent, approval, order or
authorization of, or registration, designation, declaration or filing with, any
local, state or federal governmental authority on the part of the Company is
required in connection with the Company's valid execution and delivery of this
Agreement, or the offer, sale or issuance of the Shares (and Conversion Stock),
or the consummation of any other transaction contemplated hereby, except for the
filing of the Certificate of Designations, which shall be filed by the Company
prior to the Closing, and the filing of a Form D notice under Regulation D under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
post-sale filings required by applicable state securities laws. The offer, sale
and issuance of the Shares (and of the Conversion Stock) in conformity with the
terms of this Agreement are exempt from the registration requirements of Section
5 of the Securities Act and from the qualification requirements of applicable
state securities laws, assuming the accuracy of the representations and
warranties of the Purchaser as set forth in Section 4 of this Agreement.
(j) Litigation. There is no action, proceeding or
investigation pending or, to the knowledge of the Company, threatened, or any
basis therefor known to the Company, that questions the validity of this
Agreement, or the right of the Company to enter into, or to consummate the
transactions contemplated hereby, or which might result, either individually or
in the aggregate, in any material adverse change in the assets, condition,
affairs or prospects of the Company, financially or otherwise, or any change in
the current equity ownership of the Company. The foregoing includes, without
limitation, actions pending or threatened (or any basis therefor known to the
Company) involving the prior employment of any of the Company's employees, their
use in connection with the Company's business of any trade secrets of any of
their former employers, or their obligations under any agreements with prior
employers. The Company (a) is not a party to any lawsuit or similar action or
proceeding, (b) is not a party to or subject to any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality, and (c)
does not intend to initiate any such action, suit, proceeding or investigation.
(k)
4
<PAGE> 5
(l)
(m) Full Disclosure. The representations and warranties of
the Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(n) Brokers or Finders. Astoria has not incurred and will
not incur, directly or indirectly as a result of any action taken by Company or
its representative or agent, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
the transactions contemplated hereby. The Company agrees to fully indemnify and
defend and hold harmless Astoria from and against all liabilities incurred by
Astoria or any related party with respect to claims related to investment
banking or finders fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and expenses (including reasonable
fees of counsel) of investigating and defending such claims.
4. REPRESENTATIONS AND WARRANTIES OF ASTORIA.
Astoria hereby represents and warrants to the Company with respect to
its purchase of the Shares as follows:
(a) Experience. Astoria has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Astoria has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Astoria reasonably considers
important in making the decision to purchase the Shares and Astoria has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Astoria is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the view
to or for resale in connection with any distribution thereof. Astoria
understands that the Shares have not been, and may not be, registered under the
Securities Act of 1933 by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends in part upon
the bona fide nature of the investment intent and the accuracy of such Astoria's
representations as expressed herein. No other person will have any direct or
indirect beneficial interest in or right to any of the Shares. Astoria further
acknowledges and understands that any investment in the Company is inherently
speculative and subject to material financial risks and that its entire
investment in the Company could be lost.
5
<PAGE> 6
(d) Rule 144. Astoria acknowledges that the Shares must be
held indefinitely unless subsequently registered under the Securities Act of
1933 or unless an exemption from such registration is available. Astoria is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including the requirement that the Shares be
held for a minimum of one year and in certain cases two (2) years, after they
have been purchased and paid for within the meaning of Rule 144.
(e) Authority. Astoria has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Astoria, will
constitute the legally binding valid obligations of Astoria enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Astoria has had an opportunity to
discuss the business, management and financial affairs and prospects of the
Company and its subsidiaries with the Company's management and has had the
opportunity to review the United States facilities of the Company and its
subsidiaries. Astoria acknowledges and understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain material aspects of its business and prospects but were not a thorough
or exhaustive description.
(g) Reports. Astoria has received and reviewed the Company's
Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September
30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not materially
conflict with any legally enforceable contract or agreement between Astoria and
any third person or entity; and Astoria is not a party to any outstanding
agreement which any material obligation or agreement is inconsistent with this
Agreement.
(i) Full Disclosure. The representations and warranties of
Astoria contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and
will not incur, directly or indirectly, as a result of any action taken by
Astoria or its representative
6
<PAGE> 7
or agent, any liability for brokerage or finders' fees or agents' commissions or
any similar charges in connection with this Agreement or the transactions
contemplated hereby. Astoria agrees to fully indemnify and defend and hold
harmless the Company from and against all liabilities incurred by Company or any
related party with respect to claims related to investment banking or finders
fees or similar claims in connection with the transactions contemplated by this
Agreement, and all costs and expenses (including reasonable fees of counsel) of
investigating and defending such claims.
5. ASTORIA'S CONDITIONS TO CLOSING. Astoria's obligations to
purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against Astoria
if not consented to in writing:
(a) Representations and Warranties Correct. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
(c) Certificate of Amendment. The Certificate of
Designations shall have been filed with the Secretary of State of the State of
Delaware authorizing the issuance of the Preferred Shares.
(d) Compliance Certificate. The Company will have delivered
to Astoria a Certificate dated as of the Closing signed by the Company's
President certifying that the conditions set forth in Section 5(a), (b) and (c)
have been fulfilled.
(e) Minimum Investment. The Company at the Closing shall
sell 1,000,000 Shares having an aggregate purchase price of not less than
$250,000.
(f) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of Astoria
Indebtedness.
(g) Delivery of Evidence of Payment of Other Indebtedness.
At the Closing and as a condition hereof, the Company shall deliver to Astoria
written evidence of the full payment and discharge of all Option 2 Creditors of
Omnis Software, Inc. and related administrative fees, which indebtedness as of
the Effective Date equaled _________________________ ($________________) in the
aggregate.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to
sell and issue the Shares of the Closing Date is, at the option of the Company,
subject to the fulfillment as of the Closing Date of the following conditions:
7
<PAGE> 8
(a) Representations. The representations made by Astoria in
Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature
which pertain to this Agreement, and the transactions contemplated hereby, shall
have been reasonably approved by counsel to the Company.
(c) Minimum Investment. Astoria at the Closing shall
purchase 1,000,000 Shares having an aggregate purchase price of not less than
$250,000.
7. USE OF PROCEEDS. The Company shall use the proceeds from the
sale of the Shares primarily for working capital and for payment of amounts owed
by the Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. REGISTRATION RIGHTS.
(a) The Company will register all the Shares to be purchased
by Astoria (collectively, the "Registrable Securities") for resale under the
Securities Act of 1933, as amended, and the securities laws of such states as
the parties may reasonably agree upon, on a continuous basis, beginning on a
date not more than six months after the date of the Closing; and
(b) If the registration statement covering the Registrable
Securities (the "Registration Statement") does not become effective within six
months after the date of the Closing, the Company shall reduce the consideration
paid by Astoria for the Registrable Securities by refunding to Astoria 3% of the
"Purchase Price" of the Registrable Securities for each 30-day period (pro-rated
for periods of less than 30 days) by which such effectiveness is delayed. The
Company shall also pay Astoria 3% of the Purchase Price for any period in excess
of 30 days that the effectiveness of the Registration Statement is suspended or
the Registration Statement is otherwise unavailable for use by Astoria,
excluding periods during which Astoria may sell the Registrable Securities
without restriction under Rule 144. For these purposes, the Purchase Price shall
be an amount equal to the number of Registrable Securities included in the
Registration Statement for resale by Astoria times the average price per Common
Share paid by Astoria pursuant to the agreements contemplated in the Letter of
Understanding (with the shares issuable upon conversion of the Preferred Stock
deemed to have been sold at $1.00 per share).
9. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
and (ii) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall include a legend in
8
<PAGE> 9
substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
10. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Astoria shall not have any right
to assign or transfer this Agreement or any of its rights or obligations
hereunder to any third person or entity without the prior written consent of the
Company. Except as limited by the foregoing, the provisions hereof shall inure
to the benefit of and be binding upon the respective officers, directors,
shareholders, affiliates, partners, members, agents, representatives,
successors, assigns, heirs, devisees, spouses, executors and administrators of
each of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
9
<PAGE> 10
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Astoria, at such
Astoria's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Astoria shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Astoria for such purpose.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set
forth in this Agreement are for convenience only. When the context requires, the
plural shall include the singular and the singular the plural, and any gender
shall include all other genders. No provision of this Agreement shall be
interpreted or construed against any party because such party or its counsel was
the drafter thereof.
(h) Attorney's Fees. In the event suit is brought to enforce
or interpret any part of this Agreement or any of the rights or obligations of
any party hereunder, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, and not as damages, reasonable attorneys'
fees and expenses, court costs and expert witness fees and costs.
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
10
<PAGE> 11
(j) Expenses. The Company will reimburse Astoria promptly
upon Astoria's request for its out-of-pocket legal expenses incurred in
connection with the negotiation of the terms of the transaction contemplated
herein and in the letter of understanding entered into between the parties dated
as of February 22, 1999.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRETT
-----------------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
11
<PAGE> 12
PURCHASER
ASTORIA CAPITAL PARTNERS, L.P.
By: /s/ RICK KOE
-----------------------------------
Its:
-----------------------------------
Address and Fax Number:
-----------------------------------
-----------------------------------
(________)_________________________
12
<PAGE> 13
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
13
<PAGE> 14
EXHIBIT B
LIST OF PURCHASERS
<TABLE>
<CAPTION>
Number of
Purchaser Common Shares Aggregate Purchase Price
- --------- ------------- ------------------------
<S> <C> <C>
Rockport Group 1,420,000 $ 355,000
Additional Purchasers
- ---------------------
Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Philip Barrett Charitable
Remainder Trust 1,650,000 $ 412,500
Gwyneth Gibbs 80,000 $ 20,000
---------- ----------
TOTALS: 5,000,000 $1,250,000
---------- ----------
</TABLE>
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the
cancellation of the indebtedness of the Company currently held by
the Company in favor of Astoria Capital Partners, L.P.
14
<PAGE> 15
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
15
<PAGE> 1
EXHIBIT 10.3
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and
GWYNETH GIBBS (the "Purchaser").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions
hereof, the Company will issue and sell to Purchaser and Purchaser will buy from
the Company 80,000 Shares at a price of $0.25 per share for an aggregate
purchase price of $20,000.
(c) Additional Sale of Common. Contemporaneously herewith
and subject to the same terms and conditions, the Company will issue and sell to
each of the persons and entities ("Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will buy from the Company, the total number of shares of Common
specified opposite such Purchaser's name in column 2 of Exhibit B, at the
aggregate purchase price set forth in column 3 of Exhibit B, representing a
price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of
the Common hereunder shall be held at the offices of Landels Ripley & Diamond,
LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or
waived or at such other time and place upon which the Company and the Purchasers
shall agree (the date of the Closing is hereinafter referred to as the "Closing
Date").
(b) Delivery. At the Closing, the Company shall deliver to
Purchaser a duly executed stock certificate or certificates evidencing the
Shares registered in such Purchaser's name as set forth above, representing the
number of Shares designated in
1
<PAGE> 2
paragraph 1(b) to be purchased by such Purchaser, against payment of the
purchase price therefor, by check payable to the Company or wire transfer
pursuant to the Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation
duly organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing
Date all requisite legal and corporate power and authority to execute and
deliver this Agreement, to sell and issue the Shares hereunder, and to carry out
and perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the
Company consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. The Preferred shall have the rights, preferences, privileges
and restrictions set forth in the Certificate Of Designations of Series A
Convertible Preferred Stock of Omnis Technology Corporation substantially in the
form attached hereto and made a part hereof of Exhibit C ("Certificate of
Designations"), which shall be filed with the Delaware Secretary of State prior
to the Closing Date and shall be subject to the further action of the Board of
Directors and Preferred shareholders of the Company in accordance with Section
151 of the Delaware General Corporation Law. The Company will reserve Five
Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion
of the Preferred pursuant to the terms of such Certificate of Designations, and
the Company has also reserved 1,281,199 shares of Common Stock for issuance to
employees, consultants or directors under stock plans or arrangements approved
by the Board of Directors of the Company prior to the Effective Date, of which
approximately 325,000 shares of Common Stock are subject to stock options or
warrants or other rights granted under such plans as of the Effective Date.
(d) Authorization. This Agreement, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, such enforceability being
subject only to laws of general
2
<PAGE> 3
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will
have the rights, preferences and privileges described in the Restated
Certificate of Incorporation of the Company; and the Shares shall be free of any
liens or encumbrances, other than any liens or encumbrances created by or
imposed upon the holders thereof through no action of the Company; provided
however that the Shares will be subject to restrictions on transfer under state
and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital
stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited,
a corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to each
Purchaser its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports.
(i) The Company has delivered to each Purchaser its
Annual Report on Form 10-K for the year ended March 31, 1998 and its
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998 and December 31, 1998 as filed with the Securities
and Exchange Commission ("SEC"). Such reports have been duly filed, were
in substantial compliance with the requirements of their respective
report forms, were complete and correct in all material respects as of
the dates for which the information was furnished, and contained (as of
such dates) no untrue statement of a material fact nor omitted to state
a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since the
date of the latest of such reports, there has not been any material
adverse change in the condition (financial or otherwise) or results of
operations of the Company.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any provision of the Restated Certificate of Incorporation or Bylaws of the
Company or any legally enforceable contract or agreement between the Company and
any third person or
3
<PAGE> 4
entity; and the Company is not a party to any outstanding agreement which
obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
the Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company with respect
to its purchase of the Shares as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the view
to or for resale in connection with any distribution thereof. Purchaser
understands that the Shares have not been, and may not be, registered under the
Securities Act of 1933 by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends in part upon
the bona fide nature of the investment intent and the accuracy of such
Purchaser's representations as expressed herein. No other person will have any
direct or indirect beneficial interest in or right to any of the Shares.
Purchaser further acknowledges and understands that any investment in the
Company is inherently speculative and subject to material financial risks and
that its entire investment in the Company could be lost.
(d) Rule 144. Purchaser acknowledges that the Shares must be
held indefinitely unless subsequently registered under the Securities Act of
1933 or unless an exemption from such registration is available. Purchaser is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including the requirement that the Shares be
held for a minimum of one year and in
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<PAGE> 5
certain cases two years, after they have been purchased and paid for within the
meaning of Rule 44.
(e) Authority. Purchaser has all right, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to
discuss the business, management and financial affairs and prospects of the
Company and its subsidiaries with the Company's management and has had the
opportunity to review the United States facilities of the Company and its
subsidiaries. Purchaser acknowledges and understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain material aspects of its business and prospects but were not a thorough
or exhaustive description.
(g) Reports. Purchaser has received and reviewed the
Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the
Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any legally enforceable contract or agreement between Purchaser and any
third person or entity; and Purchaser is not a party to any outstanding
agreement which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and
will not incur, directly or indirectly, as a result of any action taken by
Purchaser or its representative or agent, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement or the transactions contemplated hereby. Purchaser agrees to
fully indemnify and defend and hold harmless the Company from and against all
liabilities incurred by Purchaser or any related party with respect to claims
related to investment banking or finders fees or similar claims in connection
with the transactions contemplated by this Agreement, and all costs and
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<PAGE> 6
expenses (including reasonable fees of counsel) of investigating and defending
such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations
to purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser who does not consent in writing thereto:
(a) Representations and Warranties Correct. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
(c) Certificate of Amendment. The Certificate of
Designations shall have been filed with the Secretary of State of the State of
Delaware authorizing the issuance of the Preferred Shares.
(d) Minimum Investment. The Company at the Closing shall
sell 80,000 Shares having an aggregate purchase price of not less than $20,000.
(e) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of the
Astoria Indebtedness.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to
sell and issue the Shares of the Closing Date is, at the option of the Company,
subject to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the
Purchasers in Section 4 hereof shall be true and correct when made, and shall be
true and correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature
which pertain to this Agreement, and the transactions contemplated hereby, shall
have been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchasers at the Closing shall
purchase 80,000 Shares having an aggregate purchase price of not less than
$20,000.
7. USE OF PROCEEDS. The Company shall use the proceeds from the
sale of the Shares primarily for working capital and for payment of amounts owed
by the
6
<PAGE> 7
Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
and (ii) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall include a legend in substantially the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any
right to assign or transfer this Agreement or any of its rights or obligations
hereunder to any third person or entity without the prior written consent of the
Company. Except as limited by the foregoing, the provisions hereof shall inure
to the benefit of and be binding upon the respective officers, directors,
shareholders, affiliates, partners, members, agents, representatives,
successors, assigns, heirs, devisees, spouses, executors and administrators of
each of the parties hereto.
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<PAGE> 8
(c) Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set
forth in this Agreement are for convenience only. When the context requires, the
plural shall include the singular and the singular the plural, and any gender
shall include all other genders. No provision of this Agreement shall be
interpreted or construed against any party because such party or its counsel was
the drafter thereof.
(h) Attorney's Fees. In the event suit is brought to enforce
or interpret any part of this Agreement or any of the rights or obligations of
any party hereunder, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, and not as damages, reasonable attorneys'
fees and expenses, court costs and expert witness fees and costs.
8
<PAGE> 9
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
(j) Expenses. The Company and each Purchaser shall bear its
own expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRETT
--------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
9
<PAGE> 10
PURCHASER
GWYNETH GIBBS
By: /s/ GWYNETH GIBBS
--------------------------------
Its:
--------------------------------
Address and Fax Number:
--------------------------------
--------------------------------
(________) _____________________
10
<PAGE> 11
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
11
<PAGE> 12
EXHIBIT B
LIST OF PURCHASERS
<TABLE>
<CAPTION>
Number of
Purchaser Common Shares Aggregate Purchase Price
- --------- ------------- ------------------------
<S> <C> <C>
Rockport Group 1,420,000 $ 355,000
Additional Purchasers
- ---------------------
Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Philip Barrett Charitable
Remainder Trust 1,650,000 $ 412,500
Gwyneth Gibbs 80,000 $ 20,000
---------- ----------
TOTALS*: 5,000,000 $1,250,000
---------- ----------
</TABLE>
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the
cancellation of the indebtedness of the Company currently held by the
Company in favor of Astoria Capital Partners, L.P.
12
<PAGE> 13
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
13
<PAGE> 1
EXHIBIT 10.4
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and PHILIP
AND DEBRA BARRETT CHARITABLE REMAINDER TRUST (the "Purchaser").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions hereof,
the Company will issue and sell to Purchaser and Purchaser will buy from the
Company 1,650,000 Shares at a price of $0.25 per share for an aggregate purchase
price of $412,500.
(c) Additional Sale of Common. Contemporaneously herewith and
subject to the same terms and conditions, the Company will issue and sell to
each of the persons and entities ("Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will buy from the Company, the total number of shares of Common
specified opposite such Purchaser's name in column 2 of Exhibit B, at the
aggregate purchase price set forth in column 3 of Exhibit B, representing a
price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of the
Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP,
350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local
time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions
to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at
such other time and place upon which the Company and the Purchasers shall agree
(the date of the Closing is hereinafter referred to as the "Closing Date").
<PAGE> 2
(b) Delivery. At the Closing, the Company shall deliver to
Purchaser a duly executed stock certificate or certificates evidencing the
Shares registered in such Purchaser's name as set forth above, representing the
number of Shares designated in paragraph 1(b) to be purchased by such Purchaser,
against payment of the purchase price therefor, by check payable to the Company
or wire transfer pursuant to the Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing Date
all requisite legal and corporate power and authority to execute and deliver
this Agreement, to sell and issue the Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the Company
consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. The Preferred shall have the rights, preferences, privileges
and restrictions set forth in the Certificate Of Designations of Series A
Convertible Preferred Stock of Omnis Technology Corporation substantially in the
form attached hereto and made a part hereof of Exhibit C ("Certificate of
Designations"), which shall be filed with the Delaware Secretary of State prior
to the Closing Date and shall be subject to the further action of the Board of
Directors and Preferred shareholders of the Company in accordance with Section
151 of the Delaware General Corporation Law. The Company will reserve Five
Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion
of the Preferred pursuant to the terms of such Certificate of Designations, and
the Company has also reserved 1,281,199 shares of Common Stock for issuance to
employees, consultants or directors under stock plans or arrangements approved
by the Board of Directors of the Company prior to the Effective Date, of which
approximately 325,000 shares of Common Stock are subject to stock options or
warrants or other rights granted under such plans as of the Effective Date.
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<PAGE> 3
(d) Authorization. This Agreement, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, such enforceability being subject only
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies. The Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid and
nonassessable and will have the rights, preferences and privileges described in
the Restated Certificate of Incorporation of the Company; and the Shares shall
be free of any liens or encumbrances, other than any liens or encumbrances
created by or imposed upon the holders thereof through no action of the Company;
provided however that the Shares will be subject to restrictions on transfer
under state and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital stock
of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a
corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to each
Purchaser its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports.
(i) The Company has delivered to each Purchaser its Annual
Report on Form 10-K for the year ended March 31, 1998 and its Quarterly
Reports on Form 10-Q for the quarters ended June 30, 1998, September 30,
1998 and December 31, 1998 as filed with the Securities and Exchange
Commission ("SEC"). Such reports have been duly filed, were in
substantial compliance with the requirements of their respective report
forms, were complete and correct in all material respects as of the
dates for which the information was furnished, and contained (as of such
dates) no untrue statement of a material fact nor omitted to state a
material fact necessary in order to make the statements made therein in
light of the circumstances in which made not misleading. Since the date
of the latest of such reports, there has not been any material adverse
change in the condition (financial or otherwise) or results of
operations of the Company.
3
<PAGE> 4
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not conflict with
any provision of the Restated Certificate of Incorporation or Bylaws of the
Company or any legally enforceable contract or agreement between the Company and
any third person or entity; and the Company is not a party to any outstanding
agreement which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company with respect
to its purchase of the Shares as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares for investment
for its own account, not as a nominee or agent, and not with the view to or for
resale in connection with any distribution thereof. Purchaser understands that
the Shares have not been, and may not be, registered under the Securities Act of
1933 by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends in part upon the bona fide
nature of the investment intent and the accuracy of such Purchaser's
representations as expressed herein. No other person will have any direct or
indirect beneficial interest in or right to any of the Shares. Purchaser further
acknowledges and understands that any investment in the Company is inherently
speculative and subject to material financial risks and that its entire
investment in the Company could be lost.
(d) Rule 144. Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act of 1933 or
unless an exemption from such registration is available. Purchaser is aware of
the provisions of
4
<PAGE> 5
Rule 144 promulgated under the Securities Act which permit limited resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including the requirement that the Shares be held for a minimum of
one year and in certain cases two years, after they have been purchased and paid
for within the meaning of Rule 144.
(e) Authority. Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to discuss
the business, management and financial affairs and prospects of the Company and
its subsidiaries with the Company's management and has had the opportunity to
review the United States facilities of the Company and its subsidiaries.
Purchaser acknowledges and understands that such discussions, as well as any
written information issued by the Company, were intended to describe certain
material aspects of its business and prospects but were not a thorough or
exhaustive description.
(g) Reports. Purchaser has received and reviewed the Company's
Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September
30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not conflict with
any legally enforceable contract or agreement between Purchaser and any third
person or entity; and Purchaser is not a party to any outstanding agreement
which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and will not
incur, directly or indirectly, as a result of any action taken by Purchaser or
its representative or agent, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
the transactions contemplated hereby. Purchaser agrees to fully indemnify and
defend and hold harmless the Company from and against all liabilities incurred
by Purchaser or any related party
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<PAGE> 6
with respect to claims related to investment banking or finders fees or similar
claims in connection with the transactions contemplated by this Agreement, and
all costs and expenses (including reasonable fees of counsel) of investigating
and defending such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to
purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser who does not consent in writing thereto:
(a) Representations and Warranties Correct. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
(c) Certificate of Amendment. The Certificate of Designations
shall have been filed with the Secretary of State of the State of Delaware
authorizing the issuance of the Preferred Shares.
(d) Minimum Investment. The Company at the Closing shall sell
1,650,000 Shares having an aggregate purchase price of not less than $412,500.
(e) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of the
Astoria Indebtedness.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and
issue the Shares of the Closing Date is, at the option of the Company, subject
to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the Purchasers
in Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature which
pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchasers at the Closing shall
purchase 1,650,000 Shares having an aggregate purchase price of not less than
$412,500.
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<PAGE> 7
7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of
the Shares primarily for working capital and for payment of amounts owed by the
Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
include a legend in substantially the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any right to
assign or transfer this Agreement or any of its rights or obligations hereunder
to any third person or entity without the prior written consent of the Company.
Except as limited by the foregoing, the provisions hereof shall inure to the
benefit of and be binding upon the respective officers, directors, shareholders,
affiliates, partners, members, agents, representatives, successors, assigns,
heirs, devisees, spouses, executors and administrators of each of the parties
hereto.
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<PAGE> 8
(c) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set forth in
this Agreement are for convenience only. When the context requires, the plural
shall include the singular and the singular the plural, and any gender shall
include all other genders. No provision of this Agreement shall be interpreted
or construed against any party because such party or its counsel was the drafter
thereof.
(h) Attorney's Fees. In the event suit is brought to enforce or
interpret any part of this Agreement or any of the rights or obligations of any
party hereunder, the prevailing party shall be entitled to recover as an element
of such party's costs of suit, and
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<PAGE> 9
not as damages, reasonable attorneys' fees and expenses, court costs and expert
witness fees and costs.
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
(j) Expenses. The Company and each Purchaser shall bear its own
expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRETT
------------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
9
<PAGE> 10
PURCHASER
PHILIP AND DEBRA BARRETT CHARITABLE REMAINDER TRUST
By: /s/ PHILIP BARRETT
-----------------------------------
Philip Barrett, Trustee
By: /s/ DEBRA J. BARRETT
-----------------------------------
Debra J. Barrett, Trustee
Address and Fax Number:
-----------------------------------
-----------------------------------
-----------------------------------
( )
--------- ------------------------
10
<PAGE> 11
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
11
<PAGE> 12
EXHIBIT B
LIST OF PURCHASERS
<TABLE>
<CAPTION>
Number of
Purchaser Common Shares Aggregate Purchase Price
- --------- ------------- ------------------------
<S> <C> <C>
Rockport Group 1,420,000 $ 355,000
Additional Purchasers
Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Barrett Charitable
Remainder Trust 1,650,000 $ 412,500
Gwyneth Gibbs 80,000 $ 20,000
----------- ----------
TOTALS*: 5,000,000 $1,250,000
--------- ----------
</TABLE>
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the cancellation
of the indebtedness of the Company currently held by the Company in favor of
Astoria Capital Partners, L.P.
12
<PAGE> 13
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
13
<PAGE> 1
EXHIBIT 10.5
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and
RCJ CAPITAL PARTNERS, L.P. (the "Purchaser").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions
hereof, the Company will issue and sell to Purchaser and Purchaser will buy from
the Company 850,000 Shares at a price of $0.25 per share for an aggregate
purchase price of $212,500.
(c) Additional Sale of Common. Contemporaneously herewith
and subject to the same terms and conditions, the Company will issue and sell to
each of the persons and entities ("Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will buy from the Company, the total number of shares of Common
specified opposite such Purchaser's name in column 2 of Exhibit B, at the
aggregate purchase price set forth in column 3 of Exhibit B, representing a
price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of
the Common hereunder shall be held at the offices of Landels Ripley & Diamond,
LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or
waived or at such other time and place upon which the Company and the Purchasers
shall agree (the date of the Closing is hereinafter referred to as the "Closing
Date").
(b) Delivery. At the Closing, the Company shall deliver to
Purchaser a duly executed stock certificate or certificates evidencing the
Shares registered in such Purchaser's name as set forth above, representing the
number of Shares designated in
1
<PAGE> 2
paragraph 1(b) to be purchased by such Purchaser, against payment of the
purchase price therefor, by check payable to the Company or wire transfer
pursuant to the Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation
duly organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing
Date all requisite legal and corporate power and authority to execute and
deliver this Agreement, to sell and issue the Shares hereunder, and to carry out
and perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the
Company consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. The Preferred shall have the rights, preferences, privileges
and restrictions set forth in the Certificate Of Designations of Series A
Convertible Preferred Stock of Omnis Technology Corporation substantially in the
form attached hereto and made a part hereof of Exhibit C ("Certificate of
Designations"), which shall be filed with the Delaware Secretary of State prior
to the Closing Date and shall be subject to the further action of the Board of
Directors and Preferred shareholders of the Company in accordance with Section
151 of the Delaware General Corporation Law. The Company will reserve Five
Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion
of the Preferred pursuant to the terms of such Certificate of Designations, and
the Company has also reserved 1,281,199 shares of Common Stock for issuance to
employees, consultants or directors under stock plans or arrangements approved
by the Board of Directors of the Company prior to the Effective Date, of which
approximately 325,000 shares of Common Stock are subject to stock options or
warrants or other rights granted under such plans as of the Effective Date.
(d) Authorization. This Agreement, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, such enforceability being
subject only to laws of general
2
<PAGE> 3
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will
have the rights, preferences and privileges described in the Restated
Certificate of Incorporation of the Company; and the Shares shall be free of any
liens or encumbrances, other than any liens or encumbrances created by or
imposed upon the holders thereof through no action of the Company; provided
however that the Shares will be subject to restrictions on transfer under state
and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital
stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited,
a corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to each
Purchaser its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports.
(i) The Company has delivered to each Purchaser its
Annual Report on Form 10-K for the year ended March 31, 1998 and its
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998 and December 31, 1998 as filed with the Securities
and Exchange Commission ("SEC"). Such reports have been duly filed, were
in substantial compliance with the requirements of their respective
report forms, were complete and correct in all material respects as of
the dates for which the information was furnished, and contained (as of
such dates) no untrue statement of a material fact nor omitted to state
a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since the
date of the latest of such reports, there has not been any material
adverse change in the condition (financial or otherwise) or results of
operations of the Company.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any provision of the Restated Certificate of Incorporation or Bylaws of the
Company or any legally enforceable contract or agreement between the Company and
any third person or
3
<PAGE> 4
entity; and the Company is not a party to any outstanding agreement which
obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
the Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company with respect
to its purchase of the Shares as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the view
to or for resale in connection with any distribution thereof. Purchaser
understands that the Shares have not been, and may not be, registered under the
Securities Act of 1933 by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends in part upon
the bona fide nature of the investment intent and the accuracy of such
Purchaser's representations as expressed herein. No other person will have any
direct or indirect beneficial interest in or right to any of the Shares.
Purchaser further acknowledges and understands that any investment in the
Company is inherently speculative and subject to material financial risks and
that its entire investment in the Company could be lost.
(d) Rule 144. Purchaser acknowledges that the Shares must be
held indefinitely unless subsequently registered under the Securities Act of
1933 or unless an exemption from such registration is available. Purchaser is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including the requirement that the Shares be
held for a minimum of one year and in
4
<PAGE> 5
certain cases two years, after they have been purchased and paid for within the
meaning of Rule 44.
(e) Authority. Purchaser has all right, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to
discuss the business, management and financial affairs and prospects of the
Company and its subsidiaries with the Company's management and has had the
opportunity to review the United States facilities of the Company and its
subsidiaries. Purchaser acknowledges and understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain material aspects of its business and prospects but were not a thorough
or exhaustive description.
(g) Reports. Purchaser has received and reviewed the
Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the
Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any legally enforceable contract or agreement between Purchaser and any
third person or entity; and Purchaser is not a party to any outstanding
agreement which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and
will not incur, directly or indirectly, as a result of any action taken by
Purchaser or its representative or agent, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement or the transactions contemplated hereby. Purchaser agrees to
fully indemnify and defend and hold harmless the Company from and against all
liabilities incurred by Purchaser or any related party with respect to claims
related to investment banking or finders fees or similar claims in connection
with the transactions contemplated by this Agreement, and all costs and
5
<PAGE> 6
expenses (including reasonable fees of counsel) of investigating and defending
such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations
to purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser who does not consent in writing thereto:
(a) Representations and Warranties Correct. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
(c) Certificate of Amendment. The Certificate of
Designations shall have been filed with the Secretary of State of the State of
Delaware authorizing the issuance of the Preferred Shares.
(d) Minimum Investment. The Company at the Closing shall
sell 850,000 Shares having an aggregate purchase price of not less than
$212,500.
(e) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of the
Astoria Indebtedness.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to
sell and issue the Shares of the Closing Date is, at the option of the Company,
subject to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the
Purchasers in Section 4 hereof shall be true and correct when made, and shall be
true and correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature
which pertain to this Agreement, and the transactions contemplated hereby, shall
have been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchasers at the Closing shall
purchase 850,000 Shares having an aggregate purchase price of not less than
$212,500.
7. USE OF PROCEEDS. The Company shall use the proceeds from the
sale of the Shares primarily for working capital and for payment of amounts owed
by the
6
<PAGE> 7
Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
and (ii) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall include a legend in substantially the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any
right to assign or transfer this Agreement or any of its rights or obligations
hereunder to any third person or entity without the prior written consent of the
Company. Except as limited by the foregoing, the provisions hereof shall inure
to the benefit of and be binding upon the respective officers, directors,
shareholders, affiliates, partners, members, agents, representatives,
successors, assigns, heirs, devisees, spouses, executors and administrators of
each of the parties hereto.
7
<PAGE> 8
(c) Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set
forth in this Agreement are for convenience only. When the context requires, the
plural shall include the singular and the singular the plural, and any gender
shall include all other genders. No provision of this Agreement shall be
interpreted or construed against any party because such party or its counsel was
the drafter thereof.
(h) Attorney's Fees. In the event suit is brought to enforce
or interpret any part of this Agreement or any of the rights or obligations of
any party hereunder, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, and not as damages, reasonable attorneys'
fees and expenses, court costs and expert witness fees and costs.
8
<PAGE> 9
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
(j) Expenses. The Company and each Purchaser shall bear its
own expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRETT
--------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
9
<PAGE> 10
PURCHASER
RCJ CAPITAL PARTNERS, L.P.
By: /s/ GEOFFRY WAGNER
--------------------------------
Its:
--------------------------------
Address and Fax Number:
--------------------------------
--------------------------------
(________) _____________________
10
<PAGE> 11
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
11
<PAGE> 12
EXHIBIT B
LIST OF PURCHASERS
<TABLE>
<CAPTION>
Number of
Purchaser Common Shares Aggregate Purchase Price
- --------- ------------- ------------------------
<S> <C> <C>
Rockport Group 1,420,000 $ 355,000
Additional Purchasers
- ---------------------
Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Philip Barrett Charitable
Remainder Trust 1,650,000 $ 412,500
Gwyneth Gibbs 80,000 $ 20,000
---------- ----------
TOTALS*: 5,000,000 $1,250,000
---------- ----------
</TABLE>
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the
cancellation of the indebtedness of the Company currently held by the
Company in favor of Astoria Capital Partners, L.P.
12
<PAGE> 13
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
13
<PAGE> 1
EXHIBIT 10.6
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and
ROCKPORT GROUP L.P. (the "Purchaser").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions hereof,
the Company will issue and sell to Purchaser and Purchaser will buy from the
Company 1,420,000 Shares at a price of $0.25 per share for an aggregate purchase
price of $355,000.
(c) Additional Sale of Common. Contemporaneously herewith and
subject to the same terms and conditions, the Company will issue and sell to
each of the persons and entities ("Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will buy from the Company, the total number of shares of Common
specified opposite such Purchaser's name in column 2 of Exhibit B, at the
aggregate purchase price set forth in column 3 of Exhibit B, representing a
price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of the
Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP,
350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local
time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions
to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at
such other time and place upon which the Company and the Purchasers shall agree
(the date of the Closing is hereinafter referred to as the "Closing Date").
(b) Delivery. At the Closing, the Company shall deliver to
Purchaser a duly executed stock certificate or certificates evidencing the
Shares registered in such
<PAGE> 2
Purchaser's name as set forth above, representing the number of Shares
designated in paragraph 1(b) to be purchased by such Purchaser, against payment
of the purchase price therefor, by check payable to the Company or wire transfer
pursuant to the Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing Date
all requisite legal and corporate power and authority to execute and deliver
this Agreement, to sell and issue the Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the Company
consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. The Preferred shall have the rights, preferences, privileges
and restrictions set forth in the Certificate Of Designations of Series A
Convertible Preferred Stock of Omnis Technology Corporation substantially in the
form attached hereto and made a part hereof of Exhibit C ("Certificate of
Designations"), which shall be filed with the Delaware Secretary of State prior
to the Closing Date and shall be subject to the further action of the Board of
Directors and Preferred shareholders of the Company in accordance with Section
151 of the Delaware General Corporation Law. The Company will reserve Five
Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion
of the Preferred pursuant to the terms of such Certificate of Designations, and
the Company has also reserved 1,281,199 shares of Common Stock for issuance to
employees, consultants or directors under stock plans or arrangements approved
by the Board of Directors of the Company prior to the Effective Date, of which
approximately 325,000 shares of Common Stock are subject to stock options or
warrants or other rights granted under such plans as of the Effective Date.
(d) Authorization. This Agreement, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company,
enforceable
2
<PAGE> 3
in accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will
have the rights, preferences and privileges described in the Restated
Certificate of Incorporation of the Company; and the Shares shall be free of any
liens or encumbrances, other than any liens or encumbrances created by or
imposed upon the holders thereof through no action of the Company; provided
however that the Shares will be subject to restrictions on transfer under state
and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital stock
of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a
corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to each
Purchaser its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports.
(i) The Company has delivered to each Purchaser its Annual
Report on Form 10-K for the year ended March 31, 1998 and its Quarterly
Reports on Form 10-Q for the quarters ended June 30, 1998, September 30,
1998 and December 31, 1998 as filed with the Securities and Exchange
Commission ("SEC"). Such reports have been duly filed, were in
substantial compliance with the requirements of their respective report
forms, were complete and correct in all material respects as of the
dates for which the information was furnished, and contained (as of such
dates) no untrue statement of a material fact nor omitted to state a
material fact necessary in order to make the statements made therein in
light of the circumstances in which made not misleading. Since the date
of the latest of such reports, there has not been any material adverse
change in the condition (financial or otherwise) or results of
operations of the Company.
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not conflict with
any provision of the Restated Certificate of Incorporation or Bylaws of the
Company or any
3
<PAGE> 4
legally enforceable contract or agreement between the Company and any third
person or entity; and the Company is not a party to any outstanding agreement
which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company with respect
to its purchase of the Shares as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares for investment
for its own account, not as a nominee or agent, and not with the view to or for
resale in connection with any distribution thereof. Purchaser understands that
the Shares have not been, and may not be, registered under the Securities Act of
1933 by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends in part upon the bona fide
nature of the investment intent and the accuracy of such Purchaser's
representations as expressed herein. No other person will have any direct or
indirect beneficial interest in or right to any of the Shares. Purchaser further
acknowledges and understands that any investment in the Company is inherently
speculative and subject to material financial risks and that its entire
investment in the Company could be lost.
(d) Rule 144. Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act of 1933 or
unless an exemption from such registration is available. Purchaser is aware of
the provisions of Rule 144 promulgated under the Securities Act which permit
limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including the requirement that the Shares be
held for a minimum of one year and in
4
<PAGE> 5
certain cases two years, after they have been purchased and paid for within the
meaning of Rule 44.
(e) Authority. Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to discuss
the business, management and financial affairs and prospects of the Company and
its subsidiaries with the Company's management and has had the opportunity to
review the United States facilities of the Company and its subsidiaries.
Purchaser acknowledges and understands that such discussions, as well as any
written information issued by the Company, were intended to describe certain
material aspects of its business and prospects but were not a thorough or
exhaustive description.
(g) Reports. Purchaser has received and reviewed the Company's
Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September
30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not conflict with
any legally enforceable contract or agreement between Purchaser and any third
person or entity; and Purchaser is not a party to any outstanding agreement
which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and will not
incur, directly or indirectly, as a result of any action taken by Purchaser or
its representative or agent, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
the transactions contemplated hereby. Purchaser agrees to fully indemnify and
defend and hold harmless the Company from and against all liabilities incurred
by Purchaser or any related party with respect to claims related to investment
banking or finders fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and
5
<PAGE> 6
expenses (including reasonable fees of counsel) of investigating and defending
such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to
purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser who does not consent in writing thereto:
(a) Representations and Warranties Correct. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
(c) Certificate of Amendment. The Certificate of Designations
shall have been filed with the Secretary of State of the State of Delaware
authorizing the issuance of the Preferred Shares.
(d) Minimum Investment. The Company at the Closing shall sell
1,420,000 Shares having an aggregate purchase price of not less than $355,000.
(e) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of the
Astoria Indebtedness.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and
issue the Shares of the Closing Date is, at the option of the Company, subject
to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the Purchasers
in Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature which
pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchasers at the Closing shall
purchase 1,420,000 Shares having an aggregate purchase price of not less than
$355,000.
7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of
the Shares primarily for working capital and for payment of amounts owed by the
6
<PAGE> 7
Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
include a legend in substantially the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any right to
assign or transfer this Agreement or any of its rights or obligations hereunder
to any third person or entity without the prior written consent of the Company.
Except as limited by the foregoing, the provisions hereof shall inure to the
benefit of and be binding upon the respective officers, directors, shareholders,
affiliates, partners, members, agents, representatives, successors, assigns,
heirs, devisees, spouses, executors and administrators of each of the parties
hereto.
7
<PAGE> 8
(c) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set forth in
this Agreement are for convenience only. When the context requires, the plural
shall include the singular and the singular the plural, and any gender shall
include all other genders. No provision of this Agreement shall be interpreted
or construed against any party because such party or its counsel was the drafter
thereof.
(h) Attorney's Fees. In the event suit is brought to enforce or
interpret any part of this Agreement or any of the rights or obligations of any
party hereunder, the prevailing party shall be entitled to recover as an element
of such party's costs of suit, and not as damages, reasonable attorneys' fees
and expenses, court costs and expert witness fees and costs.
8
<PAGE> 9
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
(j) Expenses. The Company and each Purchaser shall bear its own
expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ PHILIP BARRETT
-------------------------------
Philip Barrett
Chairman of the Board
981 Industrial Road, Building B
San Carlos, California 94070
9
<PAGE> 10
PURCHASER
ROCKPORT GROUP, L.P.
By: /s/ GEOFFREY WAGNER
--------------------------------
Its:
--------------------------------
Address and Fax Number:
--------------------------------
--------------------------------
--------------------------------
( )
--------- ---------------------
10
<PAGE> 11
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
11
<PAGE> 12
EXHIBIT B
LIST OF PURCHASERS
<TABLE>
<CAPTION>
Number of
Purchaser Common Shares Aggregate Purchase Price
- --------- ------------- ------------------------
<S> <C> <C>
Rockport Group 1,420,000 $ 355,000
Additional Purchasers
Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Philip Barrett Charitable
Remainder Trust 1,650,000 $ 412,500
Gwyneth Gibbs 80,000 $ 20,000
----------- ---------
TOTALS*: 5,000,000 $ 1,250,000
--------- -----------
</TABLE>
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the cancellation
of the indebtedness of the Company currently held by the Company in favor of
Astoria Capital Partners, L.P.
12
<PAGE> 13
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
13
