Exhibit 10.4
OMNIS TECHNOLOGY CORPORATION
PROMISSORY NOTE
$250,000.00 September 28, 2000
San Carlos, California
1. Principal and Interest.
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"),
for value received, hereby promises to pay to the order of THE PHILIP AND DEBRA
BARRETT CHARITABLE REMAINDER TRUST (the "Holder") at PO Box 3730, Salem, Oregon
97302 the amount of Two Hundred Fifty Thousand Dollars ($250,000.00)
("Principal") plus accrued interest in lawful money of the United States or as
otherwise hereinafter set forth
This Promissory Note (the "Note") shall bear interest at the rate of
Ten Percent (10%) annum from the date of issuance of this Note. Accrued interest
shall be paid in quarterly installments on each March 31, June 30, September 30
and December 31, beginning December 31, 2000. All Principal and all accrued and
unpaid interest shall be due and payable in full on September 30, 2002 (the
"Maturity Date") unless there is an Event of Default (as defined in Section 2
hereof) in which case such payment shall be accelerated. This Note is not
secured by any assets or securities of the Company.
Upon payment in full of the Principal hereof and accrued interest
hereunder, this Note shall be cancelled and shall be surrendered to the Company.
The Principal and interest on this Note shall be payable to the Holder
hereof at the foregoing address or such other address as the Holder shall from
time to time designate by written notice to the Company.
2. Events of Default.The occurrence of any one or more of the following
events shall constitute an "Event of Default" hereunder:
(a) The commencement of a voluntary petition in bankruptcy or
the filing of a petition to have the Company declared bankrupt or
insolvent or the filing of any other petition of reorganization,
arrangement or similar relief by or for the Company under any
applicable law regarding insolvency or relief for debtors, unless such
proceeding is vacated, discharged, or stayed or bonded pending appeal
within 10 days from the commencement thereof; (b) the making by the
Company of a general assignment for the benefit of creditors or any
similar undertaking; (c) the appointment of a receiver, trustee or
similar officer for the business or property of the Company, which
appointment is not vacated, discharged, or stayed or bonded pending
appeal within 10 days from such appointment; or (d) the admission by
the Company in writing of its inability to pay its debts generally as
such debts become due;
(b) The failure to make any payment of interest on the due
date;
(c) Any default by the Company under the terms of any existing
indebtedness of the Company or other material indebtedness of the
Company; or
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(d) Any other material breach of this Note by the Company not
cured in full within fifteen (10) days of written notice thereof by the
Holder to the Company.
3. Representations and Warranties.
THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE HOLDER AS OF THE DATE
OF ISSUANCE THAT:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as contemplated to
be conducted.
(b) The Company has all requisite corporate right, power and
authority to execute and deliver this Note and to perform fully its
obligations hereunder. The execution and delivery of this Note and the
consummation of the loan contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Company.
(c) This Note constitutes the valid and legally binding
agreement and obligations of the Company, enforceable in accordance
with its terms.
4. Remedies. The Holder shall have such remedies upon occurrence of an
Event of Default under this Note as provided herein or by applicable law.
5. Prepayment. Notwithstanding any contrary provision hereof, the
Company shall have the right at any time and from time to time, to prepay the
Principal in whole or in part plus accrued interest thereon without penalty.
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6. Binding Effect.Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of and be binding upon each of the
parties; the directors, officers, stockholders, employees, agents, successors
and assigns of the Company; and the heirs, devisees, executors, administrators,
representatives, successors, beneficiaries and assigns of the Holder.
7. Transfer of This Note.
With respect to any proposed transfer of this Note (other than to
Philip and Debra Barrett or a charitable remainder trust affiliated with them),
the Holder shall give at least 10-days prior written notice to the Company.
8. Notices. All notices or other communications under this Note shall
be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a
nationally recognized overnight courier service, or (c) by United States first
class registered or certified mail return receipt requested; and the date of
delivery shall be deemed to be the earlier of (i) actual receipt of notice by
any permitted means, or (ii) two business days following dispatch by overnight
courier service or (ii) three business days following dispatch by the United
States Mail. Such notices shall be addressed to Holder at the address set forth
herein or to the Company at its address as set forth on the signature page of
this Note; or such other address provided by notice to the other party under the
foregoing procedure.
9. Governing Law.
This Note is being delivered in and shall be construed in accordance
with the laws of the State of California, without regard to conflicts of laws
principles.
10. Entire Agreement.
THIS NOTE CONSTITUTES THE FULL AND ENTIRE UNDERSTANDING AND AGREEMENT
BETWEEN THE PARTIES WITH REGARD TO THE SUBJECT MATTER HEREOF. ANY PRIOR OR
CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET
FORTH IN THIS NOTE ARE SUPERSEDED AND OF NO FORCE OR EFFECT. THIS NOTE MAY BE
MODIFIED OR AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY BOTH
OF THE PARTIES.
11. Severability.
If any provision of this Note shall be judicially determined to be
invalid, illegal or unenforceable by a court of competent jurisdiction, the
validity, legality and enforceability of the remaining provisions shall not in
any manner be affected or impaired and shall remain in full force and effect.
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12. Interpretation.
SECTIONS AND SECTION HEADINGS CONTAINED IN THIS NOTE ARE FOR REFERENCE
PURPOSES ONLY, AND SHALL NOT AFFECT IN ANY MANNER THE MEANING OF INTERPRETATION
OF THIS NOTE. WHENEVER THE CONTEXT REQUIRES, REFERENCES TO THE SINGULAR SHALL
INCLUDE THE PLURAL AND THE PLURAL THE SINGULAR AND ANY GENDER SHALL INCLUDE ANY
OTHER GENDER. THE PARTIES ACKNOWLEDGE THAT EACH PARTY HAS REVIEWED THIS NOTE,
AND NO PROVISION OF THIS NOTE SHALL BE INTERPRETED FOR OR AGAINST ANY PARTY
BECAUSE SUCH PARTY OR ITS REPRESENTATIVE DRAFTED SUCH PROVISION.
13. Collection Costs.The Company promises to pay any and all costs of
collection, including reasonable attorneys' fees, incurred in the collection of
this Note following an Event of Default (whether before, at or after trial or in
connection with any appeal).
14. Waiver by the Company.The Company hereby waives demand, notice,
presentment, protest and notice of dishonor with respect to the enforcement of
this Note in accordance with its express terms.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in
its corporate name and this Note to be dated, issued and delivered, all on the
date first above written.
OMNIS TECHNOLOGY CORPORATION
By: ___________________________________
James Dorst, Chief Financial Officer
Address: 981 Industrial Way
Building B
San Carlos, California
94070-4117
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