-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ByH5bJrKLsldwR+usbwZjge8JFKmGFd2ZidkeoXWciiBGHK3gCpuZTv6VKZzcgry Xk8ihlr9Covifh08n9GxQw== 0000892569-01-500513.txt : 20010622 0000892569-01-500513.hdr.sgml : 20010622 ACCESSION NUMBER: 0000892569-01-500513 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 20001201 ITEM INFORMATION: FILED AS OF DATE: 20010621 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RAINING DATA CORP CENTRAL INDEX KEY: 0000820738 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943046892 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: SEC FILE NUMBER: 000-16449 FILM NUMBER: 1665089 BUSINESS ADDRESS: STREET 1: 17500 CARTWRIGHT ROAD CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 6506327100 MAIL ADDRESS: STREET 1: 17500 CARTWRIGHT ROAD RD CITY: IRVINE STATE: CA ZIP: 92614 FORMER COMPANY: FORMER CONFORMED NAME: OMNIS TECHNOLOGY CORP DATE OF NAME CHANGE: 19971022 FORMER COMPANY: FORMER CONFORMED NAME: BLYTH HOLDINGS INC DATE OF NAME CHANGE: 19920703 8-K/A 1 a70482ae8-ka.txt AMENDMENT TO FORM 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K/A -------------------------- CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): December 1, 2000 RAINING DATA CORPORATION (Exact Name of Registrant as Specified in its Charter) DELAWARE (State or Other Jurisdiction of Incorporation or Organization) 000-16449 94-3046892 (Commission File Number) (I.R.S. Employer Identification No.) 17500 CARTWRIGHT ROAD IRVINE, CALIFORNIA 92614 (Address of Principal Executive Offices) (949) 442-4400 (Registrant's telephone number, including area code) 2 Effective December 1, 2000, Raining Merger Sub, Inc. ("Merger Sub"), a Delaware corporation and wholly owned subsidiary of Raining Data Corporation f/k/a Omnis Technology Corporation (the "Company"), merged with and into PickAx, Inc., a Delaware corporation ("PickAx") pursuant to the Agreement and Plan of Merger (the "Merger Agreement") dated as of August 23, 2000 between Merger Sub, the Company, PickAx and Gilbert Figueroa (a stockholder of PickAx) resulting in PickAx becoming a fully owned subsidiary of the Company (the "Merger"). In addition, as of December 4, 2000, the Company sold an aggregate of 1,997,366 shares of its Common Stock in a separate private placement (the "Private Placement") to Astoria Capital Partners, LP ("Astoria") and two individuals. The Merger and the Private Placement were initially reported on Form 8-K on December 15, 2000. This amendment is being filed for the purpose of including financial statements and pro forma financial information relating to the Merger and certain exhibits relating to the Merger and the Private Placement and should be read in conjunction with the December 15, 2000 Form 8-K. CHANGE IN ACCOUNTANTS On July 11, 2000, Deloitte & Touche LLP, informed Pick that they declined to stand for reappointment as Pick's independent auditors subsequent to the completion of their audit of Pick's financial statements for the year ended February 29, 2000, which became effective on July 11, 2000. On October 4, 2000 Grant Thornton, LLP was appointed as independent auditors for PickAx, Inc. During the fiscal years ended February 28, 1999 and February 29, 2000 and through July 11, 2000, there were no disagreements between Pick and Deloitte and Touche LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Deloitte & Touche LLP, would have caused it to make reference to the subject matter of the disagreement in connection with its report. Deloitte & Touche LLP's reports on the financial statements of Pick for the years ended February 29, 2000 and February 28, 1999 did not contain an adverse opinion or disclaimer of opinion, nor was it modified as to uncertainty, audit scope or accounting principles. Further, during the fiscal years ended February 28, 1999 and February 29, 2000 and through July 11, 2000, there were no reportable events as defined by Item 304(a)(i)(iv) of Regulation S-B. Deloitte & Touche LLP has not audited, reviewed, compiled or performed any procedures on interim financial statements of Pick for any periods or any financial statements of Pick subsequent to February 29, 2000. Furthermore, Deloitte & Touche LLP, has not been engaged as independent auditors of PickAx, Inc. and, accordingly, has not audited, reviewed, complied or performed any procedures with respect to the financial statements of PickAx, Inc. as of any dates or for any periods. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) Financial Statements of Businesses Acquired. The following financial statements are included in this report: (1) Audited Consolidated Financial Statements of Pick Systems, Inc. as of and for the years ended February 29, 2000 and February 28, 1999 (2) Unaudited Consolidated Financial Statements of PickAx, Inc. as of and for the six month periods ended August 31, 2000 and 1999 (b) Pro Forma Financial Information. The following pro forma financial information is included in this report: (1) Unaudited Pro Forma Combined Financial Statements as of and for the six months ended September 30, 2000 (2) Unaudited Pro Forma Combined Statement of Operations for the year ended March 31, 2000 3 (c) Exhibits. 2.1 Agreement and Plan of Merger, dated as of August 23, 2000, by and among Omnis Technology Corporation, Raining Merger Sub, Inc., PickAx, Inc. and Gilbert Figueroa (included as Appendix A to the Registrant's Definitive Proxy Statement filed with the Commission on November 16, 2000 and incorporated herein by reference) 4.1 Common Stock Purchase Agreement - Cash Purchase, dated as of December 4, 2000, by and between the Registrant and Astoria Capital Partners, L.P. 4.2 Common Stock Purchase Agreement - PickAx Note, dated as of December 4, 2000, by and between the Registrant and Astoria Capital Partners, L.P. 4.3 Common Stock Purchase Agreement - Individual, dated as of December 4, 2000, by and between the Registrant and Harry Augur 4.4 Common Stock Purchase Agreement - Individual, dated as of December 4, 2000, by and between the Registrant and Robert van Roijen 4.5 Registration Rights Agreement, dated as of December 4, 2000, by and among the Registrant, Astoria Capital Partners, L.P., Harry Augur and Robert van Roijen 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of BDO Spencer Steward (Johannesburg) Incorporated 23.3 Consent of Mazars Neville Russell 4 Deloitte & Touche LLP logo Deloitte & Touche LLP Suite 1200 695 Town Center Drive Costa Mesa, California 92626-5924 Tel: 714-436-7100 Fax: 714-436-7200 www.deloitte.com INDEPENDENT AUDITORS' REPORT To the Board of Directors of Pick Systems, Inc. and subsidiaries: We have audited the accompanying consolidated balance sheets of Pick Systems, Inc. and subsidiaries (collectively, the Company) as of February 29, 2000 and February 28, 1999, and the related consolidated statements of operations, comprehensive loss, shareholders' equity and cash flows for the years then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We did not audit the financial statements of Pick Systems Limited and Pick Systems Africa (consolidated subsidiaries), which combined statements reflect total assets constituting 21% and 22% of the Company's consolidated total assets as of February 29, 2000 and February 28, 1999, and total revenues constituting 21% and 20%, respectively, of the Company's consolidated total revenues for the years then ended. Those statements were audited by other auditors whose reports have been furnished to us, and our opinion, insofar as it relates to the amounts included for Pick Systems Limited and Pick Systems, Africa, is based solely on the reports of such other auditors. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits and the reports of the other auditors provide a reasonable basis for our opinion. In our opinion, based on our audits and the reports of the other auditors, such consolidated financial statements present fairly, in all material respects, the financial position of Pick Systems, Inc. and subsidiaries as of February 29, 2000 and February 28, 1999, and the results of their operations and their cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America. /s/ Deloitte & Touche LLP June 7, 2000, except for Note 5 for which the date is July 11, 2000 Carlsbad Las Vegas Los Angeles Phoenix San Diego 5 BDO Spencer Steward 13 Wellington Road Parktown 2193 (Johannesburg) Incorporated Private Bag X605000 Houghton 2041 Chartered Accountants (SA) Telephone (011) 643-7271 Reg. No. 95/02310/21 Telefax: (011) 643-6586 Docex: 574 jhb Email: bdojhb@bdo.co.za Website: http//www.bdo.co.za Report of the independent auditors to the members of Pick Systems Africa (Proprietary) Limited We have audited the annual financial statements of Pick Systems Africa (Proprietary) Limited set out on pages 3 to 13 for the year ended 29 February 2000. These financial statements are the responsibility of the company's directors. Our responsibility is to express an opinion on these financial statements based on our audit. Scope We conducted our audit in accordance with statements of South African Auditing Standards. Those standards require that we plan and perform the audit to obtain reasonable assurance that the financial statements are free of material misstatement. An audit includes: * examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, * assessing the accounting principles used and significant estimates made by management, and * evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for out opinion Audit opinion In our opinion, the financial statements fairly presents, in all material respects, the financial position of the company at 29 February 2000, and the results of its operations and cash flows for the year then ended in accordance with generally accepted accounting practice, and in the manner required by the Companies Act. Accounting and secretarial duties With the written consent of all members, we have performed certain secretarial and accounting duties. 2 6 Supplementary information The supplementary schedule set out on pages 14 to 15 does not form part of the annual financial statements and is presented as additional information only. We have not audited this scheduled and accordingly we do not express an opinion thereon. /s/ BDO Spencer Steward (Johannesburg) Incorporated --------------------------------------------------- BDO Spencer Steward (Johannesburg) Incorporated Johannesburg Registered Accountants and Auditors 29 March 2000 Chartered Accountants (S.A.) 3 7 MAZARS LOGO - -------------------------------------------------------------------------------- MAZARS NEVILLE RUSSELL Chartered Accountants Auditors' report To the shareholders of Pick Systems Limited - -------------------------------------------------------------------------------- We have audited the financial statements on pages 4 to 13 which have been prepared following the accounting policies set out on page 8. Respective responsibilities of directors and auditors As described on page 1 the company's directors are responsible for the preparation of financial statements. It is our responsibility to form an independent opinion, based on our audit, on those statements and to report our opinion to you. Basis of opinion We conducted our audit in accordance with Auditing Standards issued by the Auditing Practices Board. An audit includes examination on a test basis, or evidence relevant to the amounts and disclosures in the financial statements. It also includes an assessment of the significant estimates and judgements made by the directors in the preparation of the financial statements, and of whether the accounting policies are appropriate to the company's circumstances, consistently applied and adequately disclosed. We planned and performed our audit so as to obtain all the information and explanations which we considered necessary in order to provide us with sufficient evidence to give reasonable assurance that the financial statements are free from material misstatement, whether caused by fraud or other irregularity or error. In forming our opinion we also evaluated the overall adequacy of the presentation of information in the financial statements. Opinion In our opinion the financial statements give a true and fair view of the state of the Company's affairs as at 29 February 2000 and of its results for the year then ended and have been properly prepared in accordance with the Compliance Act 1985. /s/ MAZARS NEVILLE RUSSELL - -------------------------------- MAZARS NEVILLE RUSSELL CHARTERED ACCOUNTANTS and Registered Auditors Milton Keynes 19 September 2000 4 8 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS AS OF FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 - --------------------------------------------------------------------------------
2000 1999 ---------- ---------- ASSETS CURRENT ASSETS: Cash and cash equivalents .................................... $ 754,816 $ 615,669 Accounts receivable, net of allowance for doubtful accounts of $528,470 (2000) and $217,853 (1999) ............ 2,636,091 3,489,031 Inventories .................................................. 48,056 53,092 Prepaid expenses ............................................. 196,403 77,680 Deferred income taxes (note 7) ............................... -- 206,024 Income tax refund receivable (Note 7) ........................ 151,459 -- Loan Receivable from estate (Note 3) ......................... 2,596,300 $2,122,018 ---------- ---------- Total current assets .................................... 6,383,125 6,563,514 PROPERTY AND EQUIPMENT, net (note 2) ......................... 530,965 534,471 CAPITALIZED SOFTWARE, net .................................... 13,658 13,876 NOTES RECEIVABLE (Note 4) .................................... 188,092 292,521 DEPOSITS ..................................................... 6,445 13,370 DEFERRED INCOME TAXES (Note 7) ............................... -- 413,696 ---------- ---------- $7,122,285 $7,831,358 ========== ==========
See notes to consolidated financial statements. 5 9 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS AS OF FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 (Continued) - --------------------------------------------------------------------------------
2000 1999 ----------- ----------- LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES: Line of credit (Note 5) ....................................... $ 460,000 $ 700,000 Accounts payable .............................................. 1,051,395 844,138 Accrued retirement benefits ................................... 2,142 79,672 Accrued liabilities ........................................... 1,636,201 1,151,327 Income taxes payable (Note 7) ................................. -- 16,218 Current portion of long-term debt (Note 6) .................... 8,608 14,951 ----------- ----------- Total current liabilities ................................ 3,158,346 2,806,306 LONG-TERM DEBT, less current portion (Note 6) ................. 39,958 -- DEFERRED REVENUE .............................................. 3,703,162 2,959,409 COMMITMENTS AND CONTINGENCIES (Notes 8, 9, and 10) ............ -- -- MINORITY INTEREST ............................................. (67,875) (53,905) SHAREHOLDERS' EQUITY (NOTE 12): Common stock, without par value; 200,000,000 shares authorized; 1,081,800 shares issued and outstanding ......... 984,523 984,523 Accumulated other comprehensive income ........................ 50,155 1,684 Retained earnings (accumulated deficit) ....................... (745,984) 1,133,341 ----------- ----------- Total shareholders' equity ............................... 288,694 2,119,548 ----------- ----------- $ 7,122,285 $ 7,831,358 =========== ===========
See notes to consolidated financial statements. 6 10 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 - --------------------------------------------------------------------------------
2000 1999 ------------ ------------ SALES .................................... $ 17,333,798 $ 15,754,353 COST OF SALES ............................ 693,403 800,116 ------------ ------------ GROSS PROFIT ............................. 16,640,395 14,954,237 OPERATING EXPENSES (NOTES 9, 10, and 11) . 18,075,739 14,342,265 ------------ ------------ (LOSS) INCOME FROM OPERATIONS ............ (1,435,344) 611,972 OTHER (EXPENSE) INCOME: Interest income, net ..................... 145,672 107,272 Other expense ............................ (207,585) (69,657) ------------ ------------ Total other (expense) income ........... (61,913) (37,615) ------------ ------------ (LOSS) INCOME BEFORE INCOME TAX PROVISION AND MINORITY INTEREST .................. (1,497,257) 649,587 INCOME TAX PROVISION (Note 7) ............ 396,038 646,904 ------------ ------------ NET (LOSS) INCOME BEFORE MINORITY INTEREST (1,893,295) 2,683 MINORITY INTEREST ........................ 13,970 7,532 ------------ ------------ NET (LOSS) INCOME ........................ $ (1,879,325) $ 10,215 ============ ============
See notes to consolidated financial statements. 7 11 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 - -------------------------------------------------------------------------------- 2000 1999 ----------- -------- NET (LOSS) INCOME ........................ $(1,879,325) $ 10,215 Other comprehensive income (loss): Foreign currency translation adjustment 48,471 (39,840) ----------- -------- COMPREHENSIVE LOSS ....................... $(1,830,854) $(29,625) =========== ======== See notes to consolidated financial statements. 8 12 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 - --------------------------------------------------------------------------------
Accumulated Retained Common Stock other earnings --------------------- comprehensive (accumulated Shares Amount income deficit) Total --------- -------- ------------- ------------ ----------- BALANCE, March 1, 1998 ..... 1,081,800 $984,523 $ 41,524 $ 1,123,126 $ 2,149,173 Net income ................. -- -- -- 10,215 10,215 Foreign currency translation adjustment ............... -- -- (39,840) -- (39,840) --------- -------- -------- ----------- ----------- BALANCE, February 28, 1999.. 1,081,800 984,523 1,684 1,133,341 2,119,548 Net loss ................... -- -- -- (1,879,325) (1,879,325) Foreign currency translation adjustment ............... -- -- 48,471 -- 48,471 --------- -------- -------- ----------- ----------- BALANCE, February 29, 2000 . 1,081,800 $984,523 $ 50,155 $ (745,984) $ 288,694 ========= ======== ======== =========== ===========
See notes to consolidated financial statements. 9 13 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 - --------------------------------------------------------------------------------
2000 1999 ----------- --------- CASH FLOWS FORM OPERATING ACTIVITIES: Net (loss) income ......................................... $(1,879,325) $ 10,215 Minority interest ......................................... (13,970) (7,532) Adjustments to reconcile net (loss) income to net cash provided by operating activities: Depreciation and amortization ............................. 247,041 269,904 Loss (gain) on disposal of property and equipment ......... 11,891 (5,697) Deferred income taxes ..................................... 619,720 606,850 Net change in operating assets and liabilities: Accounts receivable .................................... 852,940 (618,152) Inventories ............................................ 5,036 12,225 Prepaid expenses ....................................... (118,723) (10,581) Deposits ............................................... 6,925 75,541 Accounts payable ....................................... 207,257 (70,175) Accrued liabilities .................................... 484,874 (184,727) Accrued retirement benefits ............................ (77,530) 3,495 Income taxes payable/receivable ........................ (167,677) (325,792) Deferred revenue ....................................... 743,753 982,838 ----------- -------- Net cash provided by operating activities ............ 922,212 736,412 CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from notes receivable ............................ 104,429 Increases in notes receivable ............................. (4,699) Additions to loan receivable from estate .................. (474,282) (365,117) Purchase of property and equipment and capitalized software..................................... (255,298) (208,746) ----------- -------- Net cash used in investing activities ................ (625,151) (578,562) CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from long-term debt .............................. 39,958 Payments on long-term debt ................................ (6,343) (6,637) Net payments under line of credit ......................... (240,000) ----------- -------- Net cash used in financing activities ................ (206,385) (6,637) EFFECT OF EXCHANGE RATE CHANGES ON CASH ................... 48,471 (39,840) ----------- --------
See notes to consolidated financial statements. 10 14 PICK SYSTEMS, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 (Continued) - --------------------------------------------------------------------------------
2000 1999 -------- -------- NET INCREASE IN CASH AND CASH EQUIVALENTS ........ $139,147 $111,373 CASH AND CASH EQUIVALENTS, beginning of year ..... 615,669 504,296 -------- -------- CASH AND CASH EQUIVALENTS, end of year ........... $754,816 $615,669 ======== ======== SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION - Cash paid during the year for: Interest ..................................... $ 59,296 $ 70,282 ======== ======== Income Taxes ................................. $ 95,000 $365,846 ======== ========
See notes to consolidated financial statements. 11 15 PICK SYSTEMS, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEARS ENDED FEBRUARY 29, 2000 AND FEBRUARY 28, 1999 1. SIGNIFICANT ACCOUNTING POLICIES Nature of Operations--Pick Systems, Inc. and subsidiaries (collectively, the Company) was incorporated in the State of California in 1982 and engages principally in the design, development, and marketing of database management systems. Principles of Consolidation--The accompanying consolidated financial statements include the accounts of Pick Systems, Inc., its wholly owned subsidiaries Pick Systems France and Pick Systems Limited, and a 69%-owned subsidiary, Pick Systems, Africa. All intercompany accounts and transactions have been eliminated in consolidation. Basis of Presentation--The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. Cash and Cash Equivalents--Cash and cash equivalents include cash and certificates of deposits with original maturities of three months or less. Accounts Receivable--Accounts receivable arise in the normal course of granting trade credit terms to customers. The Company performs credit evaluations of customers and generally does not require collateral. The Company maintains reserves for estimated credit losses, based on management's estimates of uncollectible amounts. Inventories--Inventories are stated at the lower of cost (first-in, first-out method) or market. Property and Equipment--Property and equipment are stated at cost, less accumulated depreciation. Depreciation is provided using the straight-line method over the estimated useful lives of the assets, which range from three to seven years. Amortization of leasehold improvements is provided over the shorter of the related lease terms or the estimated useful lives of the improvements. Maintenance and repairs are expensed as incurred, while renewals and betterments are capitalized. Capitalized Software--The Company capitalizes certain software development costs in accordance with Statement of Financial Accounting Standards (SFAS) No. 86, Accounting for the Costs of Computer Software to Be Sold, Leased, or Otherwise Marketed. Amortization of such costs is provided over the expected life (generally five years) of the related product. Amortization expense was $10,399 and $18,163 for the years ended February 29, 2000 and February 28, 1999, respectively. Accumulated amortization was $336,375 and $325,976 at February 29, 2000 and February 28, 1999, respectively. Long-Lived Assets--In accordance with SFAS No. 121. Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, long-lived assets to be held are reviewed for events or changes in circumstances which indicate that their carrying value may not be recoverable based on future undiscounted cash flows. As of February 29, 2000 and February 28, 1999, no impairment was indicated. Revenue Recognition--The Company recognizes revenue on software sales when the product is shipped. Deferred Revenues--Deferred revenues result from nonrefundable cash received by the Company for one-year service contracts. The Company recognizes revenues from such contracts monthly over the one-year service obligation period. 12 16 Minority Interest--The Company has reflected minority interest as a receivable in the accompanying balance sheets as the minority owners are committed to, and are capable of, providing additional capital to Pick Systems, Inc. Income Taxes--The Company accounts for income taxes based on the standards specified in SFAS No. 109. Accounting for Income Taxes. SFAS No. 109 is an asset and liability approach that requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been recognized in the Company's financial statements. Measurement of the deferred items is based on enacted tax laws. Valuation allowances are established, when necessary, to reduce deferred income tax assets to the amount expected to be realized. Foreign Operations--Foreign revenues represent 35% and 31% of total revenues for the years ended February 29, 2000 and February 28, 1999, respectively. As of February 29, 2000 and February 28, 1999, $1,954,497 and $1,883,485, respectively, of the Company's assets were located in South Africa and Europe. Foreign Currency Translation--In accordance with SFAS No. 52, Foreign Currency Translation, the functional currency for the Company's foreign subsidiaries local currency. Gains and losses resulting from foreign currency transactions are recognized currently in income, and those resulting from translation of financial statements are included as accumulated other comprehensive income (loss) in shareholders' equity. Assets and liabilities denominated in foreign currencies are translated at the rate of exchange on the balance sheet date. Revenues and expenses are translated using the average exchange rate for the period. Use of Estimates--The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates. Comprehensive Income (Loss)--The Company has adopted SFAS No. 130, Reporting Comprehensive Income. This statement establishes standards for reporting of comprehensive income (loss) and it components. Comprehensive income (loss), as defined, includes all changes in equity (net assets) during a period from transactions and other events and circumstances from nonowner sources. Recent Accounting Pronouncements--In June 1998, the Financial Accounting Standards Board issued SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities. The provisions of SFAS No. 133, as amended, are effective for all fiscal quarters of all fiscal years beginning after June 15, 2000. The Company is reviewing the impact of such pronouncement on its consolidated financial statements. Reclassifications--Certain reclassifications have been made to the 1999 consolidated financial statements to conform to the 2000 presentation. 13 17 2. PROPERTY AND EQUIPMENT Property and equipment consist of the following: 2000 1999 ----------- ----------- Leasehold improvements ........... $ 163,965 $ 163,965 Trade show equipment ............. 65,912 65,912 Demonstration inventories ........ 73,015 73,015 Furniture, fixtures, and equipment 3,394,205 3,217,676 Motor vehicles ................... 60,387 14,279 ----------- ----------- 3,757,484 3,534,847 Less accumulated depreciation .... (3,226,519) (3,000,376) ----------- ----------- $ 530,965 $ 534,471 =========== =========== 3. LOAN RECEIVABLE FROM ESTATE Loan receivable from estate represents uncollateralized advances made to the estate of the majority shareholder (the Estate of Richard Pick), bears interest at 7.7% and was due upon the earlier of the sale of sufficient estate assets to liquidate the related note, or February 28, 2000. On March 16, 2000, the Company received full payment from the Estate of Richard Pick for the outstanding note receivable. 4. NOTES RECEIVABLE Notes receivable generally consists of an unsecured note receivable from an independent entity, bearing interest payable quarterly at 6% principal due in full April 2002. 5. LINE OF CREDIT The Company has a $700,000 revolving line of credit with a bank which matures August 28, 2000. Borrowings bear interest at the bank's prime lending rate plus 1.25% (10% at February 29, 2000) are collateralized by substantially all tangible assets of the Company. The credit agreement contains various covenants, including those that require the Company to maintain certain liquidity ratios and tangible net worth. As of February 29, 2000, the Company was either in compliance with the terms of the covenant or had obtained applicable waivers. 6. LONG-TERM DEBT Long-term debt consists of the following at February 29, 2000 and February 28, 1999:
2000 1999 -------- -------- 15.5% to 17.5% term loan collateralized by motor vehicles, principal and interest is payable in monthly installments of $1,068 through December 2004 . $ 45,250 $ -- 13.275% term loan collateralized by computer equipment, principal and interest payable in monthly installments of $1,077 through June 10, 2000 ...................... 3,316 14,951 -------- -------- 48,566 14,951 Less current portion ................................... (8,608) (14,951) -------- -------- Total long-term debt .............................. $ 39,958 $ -- ======== ========
14 18 The following are annual maturities of long-term debt: Year ending February 29: 2001................................... $ 8,608 2002................................... 9,050 2003................................... 9,050 2004................................... 9,050 2005................................... 12,808 ------- $48,566 ======= 7. INCOME TAXES The provision for income taxes consists of the following for the years ended February 29, 2000 and February 28, 1999: 2000 1999 --------- --------- Current Federal ..................... $(257,184) $ 7,405 State ....................... (30,203) (23,734) Foreign ..................... 63,704 56,383 --------- --------- (233,683) 40,054 Deferred: Federal .................... (94,799) 308,402 State ...................... (156,061) 68,362 --------- --------- (250,860) 376,764 Increase in valuation allowance 870,581 230,086 --------- --------- 619,721 606,850 --------- --------- Income tax provision .......... $ 369,038 $ 646,904 ========= ========= A reconciliation of the provision (benefit) for income taxes to the amount of income tax expense that would result from applying the federal statutory rate of 35% to income before provision for income taxes is as follows: 2000 1999 --------- --------- Income tax (benefit) expense at statutory rate $(536,588) $ 229,992 State tax expense, net of federal benefit .... (212,534) (17,274) Meals and entertainment ...................... 21,331 19,936 Nondeductible foreign losses ................. 337,023 220,806 Increase in valuation allowances ............. 870,581 230,086 Other ........................................ (83,775) (36,642) --------- --------- $ 396,038 $ 646,904 ========= ========= Temporary differences which give rise to deferred tax assets at February 28, 2000 and February 29, 1999, are as follows: 2000 1999 ----------- ----------- Current: State taxes ................... $ 816 $ (3,716) Accrued vacation .............. 158,801 141,658 Allowance for doubtful accounts 160,280 51,542 Accrued litigation ............ 16,540 Other ......................... 97,600 ----------- ----------- 417,497 206,024 Long term: State taxes ................... $ -- $ (32,007) Tax credits ................... 735,815 388,101 Net operating loss carryforward 159,799 514,690 Depreciation and amortization . (59,299) (72,690) Other ......................... 1,270 102 ----------- ----------- 837,584 798,196 ----------- ----------- 1,255,081 1,004,220 Valuation allowance ........... (1,255,081) (384,500) ----------- ----------- Net deferred tax asset ........ $ -- $ 619,720 =========== =========== 15 19 The Company has net operating loss carryforwards of approximately $248,000 and $1,135,000 for federal and California, respectively. The federal and California net operating loss carryforwards will begin to expire in the fiscal years ending 2014 and 2004, respectively. During the year ended February 29, 2000, the Company's determined that a valuation allowance for the entire deferred tax asset is required. 8. LITIGATION The Company is a defendant in various legal actions arising in the normal course of business, the outcome of which, in the opinion of management, neither individually nor in the aggregate will result in a material adverse effect on the Company's consolidated financial statements. 9. COMMITMENTS AND CONTINGENCIES The Company leased certain office equipment and office facilities under noncancelable operating leases which expire at various dates. Rent expenses on leased premises and equipment for the years ended February 29, 2000 and February 28, 1999 was $249,031 and $247,413, respectively. Future minimum lease payments under noncancelable operating and facility leases are as follows at February 28, 2000: 2001............................................... $ 89,549 2002............................................... 43,099 2003............................................... 24,889 2003............................................... 1,911 -------- Total Future minimum lease payments.......... $159,448 ======== 10. RELATED-PARTY TRANSACTIONS The Company rents its principal office facilities from the Estate of Richard Pick on a month-to-month basis at $11,835 per month. The Company is also responsible for the real estate taxes, utilities, insurance and maintenance of the property. Rent expense under the lease was $142,020 for the years ended February 29, 2000 and February 28, 1999. 11. RETIREMENT PLAN The Company has a qualified 401(k) plan (the Plan). Employees may elect to participate in the Plan the first month following their one-year anniversary. Participating employees may contribute 2% to 15% of their salary, not to exceed an annual dollar limitation as defined and the Company matches 100% of employee contributions. The Company's contributions for the years ended February 29, 2000 and February 28, 1999, were $90,832, respectively. 12. SUBSEQUENT EVENT On March 16, 2000, the Estate of Richard Pick entered into a definitive share purchase agreement (the Agreement) with PickAx, Inc. (the Purchaser). Terms of the Agreement provided for the Estate of Richard Pick to receive $19,500,000 from the Purchaser in exchange for 1,050,000 shares of the Company's common stock then held by the Estate of Richard Pick. The shares sold represented approximately 97% of the outstanding shares of the Company, which will continue its business operations as a majority owned subsidiary of the Purchaser. 16 20 PICKAX, INC/PICK SYSTEMS INC. CONSOLIDATED BALANCE SHEETS UNAUDITED (THOUSANDS) - --------------------------------------------------------------------------------
PickAx, Inc Pick Systems, Inc. 8/31/00 8/31/99 ----------- ----------------- (Unaudited) (Unaudited) ASSETS CURRENT ASSETS Cash & Cash Equivalents ............... $ 779 $ 1,145 Accounts Receivable, net of allow ..... 2,746 3,078 Inventory ............................. 28 37 Prepaid Expenses ...................... 384 109 -------- ------- Total Current Assets .................. 3,937 4,369 Property and Equipment................. Property & Equipment (Cost) ........... 4,142 3,982 Accumulated Depreciation .............. (3,628) (3,444) -------- ------- Total Property and Equipment ...... 514 538 Other Assets Goodwill .............................. 24,888 Accumulated Amortization of Goodwill .. (937) Notes Receivable and Deposits ......... 228 189 Loan Receivable from Estate ........... -- 2,270 Deposits .............................. 13 Deferred Income Taxes ................. -- 620 -------- ------- Total Assets ...................... $ 28,630 $ 7,999 ======== ======= LIABILITIES AND CAPITAL CURRENT LIABILITIES Accounts Payable ...................... $ 1,947 $ 526 Accrued Liabilities ................... 7,068 1,449 Deferred Revenue ...................... 4,306 3,294 Note Payable - Bank ................... 700 526 Other Debt ............................ 45 Convertible Debenture ................. 17,300 -------- ------- Total Current Liabilities ......... 31,366 5,795 -------- ------- Total Liabilities ................. $ 31,366 $ 5,795 Capital Common Stock .......................... $ 380 $ 984 Additional Paid-in Capital ............ 1,498 Foreign Currency Translation Gains/Loss (232) 37 Retained Earnings (deficit) ........... (4,382) 1,183 -------- ------- Total Capital ..................... (2,736) 2,204 -------- ------- Total Liabilities & Capital ....... $ 28,630 $ 7,999 ======== =======
17 21 PICKAX, INC/PICK SYSTEMS INC. CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS UNAUDITED (THOUSANDS) - -------------------------------------------------------------------------------- PickAX, Inc. Pick Systems, Inc. six months ended six months ended 8/31/00 8/31/99 ---------------- ----------------- (Unaudited) (Unaudited) Net Revenues .............. $ 7,102 $ 8,867 Cost of Sales ............. 496 362 ------- ------- Gross Profit .............. 6,606 8,505 Operating Expenses ........ 9,885 7,967 ------- ------- Income (loss) from ops..... (3,279) 538 Net Interest Expense ...... (834) (49) Other inc (exp) ........... (89) (64) ------- ------- Income Before Tax ......... (4,202) 425 Income Tax ................ 0 (374) ------- ------- Net Income (Loss) ......... $(4,202) $ 51 ======= ======= 18 22 SELECTED HISTORICAL FINANCIAL DATA OF PICKAX, INC. AND PICK SYSTEMS, INC. CONSOLIDATED BALANCE SHEETS (ALL AMOUNTS IN THOUSANDS) - --------------------------------------------------------------------------------
Pick Pick PickAx, Inc. Systems, Inc. PickAx, Inc. Systems, Inc. 2/29/00 2/29/00 3/16/00 3/16/00 ------------ ------------- ------------ ------------- (unaudited) (unaudited) (unaudited) (unaudited) Assets: Cash & equivalents .............. $ 559 $ 755 $ 17,500 $ 365 Accounts Rec .................... 2,636 2,621 Inventory ....................... 48 48 Prepaid expenses ................ 28 196 72 316 ------- ------- -------- ------- Deposits ........................ -- 2,200(2) 128 ------- ------- -------- ------- Total Current Assets ............ 587 3,635 19,772 3,478 Fixed Assets (Cost) ............. 2 3,771 2 4,072 Less accum. depr ................ (3,227) (3,547) ------- ------- -------- ------- Net Fixed Assets ................ 2 544 2 525 Goodwill......................... Accumulated Amortization of Goodwill........................ Notes receivable ................ 340 185 Deposits ........................ 6 23 Loan Receivable from shareholder 2,596 2,612 ------- ------- -------- ------- Total Assets ................. $ 589 $ 7,121 $ 19,774 $ 6,823 ======= ======= ======== ======= Liabilities: Accounts payable ................ $ 50 $ 1,051 $ 50 $ 987 Accrued liabilities ............. 1,570 1,955 Deferred revenue ................ 3,703 3,400 Notes payable ................... 104 509 17,300 491 ------- ------- -------- ------- Total Current Liabilities .... 154 6,833 17,350 6,833 Total Liabilities ............ 154 6,833 17,350 6,833 Stockholders' Equity: Capital Stock ................... 615 984 2,615 984 Retained Earnings ............... (180) (696) (191) (994) ------- ------- -------- ------- Total Stockholders' Equity ... 435 288 2,424 (10) ------- ------- -------- ------- Total Liabilities & Stockholders' Equity ........................ $ 589 $ 7,121 $ 19,774 $ 6,823 ======= ======= ======== =======
19 23
PickAx, Inc. PickAx, Inc. Combined Acquisition Consolidated Consolidated 3/16/00 Adjustments 3/16/00 8/31/00 ----------- ----------- ------------ ------------ (unaudited) (unaudited) (unaudited) (unaudited) Assets: Cash & equivalents...................... $ 17,865 $(14,688)(1) $ 3,177 $ 779 Accounts Rec............................ 2,621 2,621 2,746 Inventory............................... 48 48 28 Prepaid expenses........................ 388 388 384 Deposits................................ 2,328 (2,200)(2) 128 -- -------- -------- -------- ------- Total Current Assets.................... 23,250 (16,888) 6,362 3,937 Fixed Assets (Cost)..................... 4,074 4,074 4,142 Less accum. depr........................ (3,547) (3,547) (3,628) -------- -------- -------- ------- Net Fixed Assets........................ 527 -- 527 514 Goodwill ............................... 19,537 (4) 19,537 24,888 Accumulated Amortization of Goodwill.... (937) Notes receivable........................ 185 185 189 Deposits................................ 23 23 39 Loan Receivable from shareholder........ 2,612 (2,612)(3) -- -- -------- -------- -------- ------- Total Assets.......................... $ 26,597 37 $ 26,634 $28,630 ======== ======== ======== ======= Liabilities: Accounts payable........................ $ 1,037 $ 1,037 $ 1,947 Accrued liabilities..................... 1,955 1,955 3,819 Deferred revenue........................ 3,400 3,400 4,300 Notes payable........................... 17,791 17,791 21,300 -------- -------- -------- ------- Total Current Liabilities............. 24,183 -- 24,183 31,366 Total Liabilities..................... 24,183 -- 24,183 31,366 Stockholders' Equity: Capital Stock........................... 3,599 (984)(5) 2,615 1,878 Retained Earnings....................... (1,185) 1,021 (5) (164) (4,614) -------- -------- -------- ------- Total Stockholders' Equity............ 2,414 37 2,451 (2,736) -------- -------- -------- ------- Total Liabilities & Stockholders' Equity.................. $ 26,597 $ 37 $ 26,634 $28,630 ======== ======== ======== =======
- ------------ (1) Amount represents the net cash paid to shareholders of Pick Systems, Inc. by PickAx, Inc. comprised of $19,500 less deposits previously provided as consideration of $2,200 and net of prior shareholder loans of $2,612. (2) Amount of deposit required by the Probate Court--State of California prior to the sale of the stock of Pick Systems, Inc. as determined by the Court. (3) Cumulative balance of loans extended to the Estate of Richard Pick prior to the consummation of the transaction. (4) Consideration paid for the capital stock of Pick Systems, Inc. net of $37, the fair value of assets acquired on March 16, 2000. (5) Elimination of prior shareholders' equity of Pick Systems, Inc. as of March 16, 2000. 20 24 PICKAX, INC/PICK SYSTEMS INC. CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE SIX MONTHS ENDED AUGUST 31, 1999 AND 2000 (THOUSANDS) - --------------------------------------------------------------------------------
Pick Systems PickAx, Inc. Condensed Condensed Statements of Statements of Changes in Changes in Cash Position Cash Position 6 Months Ending 6 months Ending 8/31/99 8/31/00 --------------- --------------- (Unaudited) (Unaudited) Cash Flow from Operating Activities Net Income (loss) ...................... $ 51 $ (4,202) Adjustments to reconcile net income (loss) to net cash provided by operating expenses Depreciation & Amortization ........ 118 1,018 Net change in operating assets and liabilities................... Cost of financing .................. (1,101) Accounts receivable ................ 409 (2,746) Inventories ........................ 16 (28) Prepaid expenses ................... (31) 142 Deposits ........................... 0 (253) Notes receivable & advances ........ 104 (189) Accounts payable ................... (318) 1,897 Accrued liabilities ................ 240 3,068 Deferred revenue ................... 335 4,306 ------- -------- Net cash provided by operating activities . 924 1,628 ------- -------- Cash Flows from investing activities Purchase of assets ..................... (107) (24,637) Costs of acquisition ................... 0 (844) ------- -------- Net cash used in investing activities ..... (107) (25,481) Cash Flows from financing activities Proceeds form debt, net ................ (174) 21,941 Additions to loan receivable from estate (148) Sale of Stock .......................... 0 2,364 ------- -------- Net cash used in financing activities ..... (322) 24,305 ------- -------- Foreign Exchange Losses Not Using Cash .... 34 (232) Net Increase in Cash ...................... 529 220 Cash at Beginning of Period ............... 616 559 ------- -------- Cash at End of Period ..................... $ 1,145 $ 779 ======= ========
21 25 SELECTED HISTORICAL FINANCIAL DATA OF PICKAX, INC. AND PICK SYSTEMS, INC. UNAUDITED STATEMENTS OF OPERATIONS (ALL AMOUNTS IN THOUSANDS) - --------------------------------------------------------------------------------
PickAx, Inc. & PickAx, Inc. Pick Systems, Inc. PickAx, Inc. Pick Systems, Inc. PickAx, Inc. Consolidated Consolidated 7 Months Ended 3/1/00 through 3/1/00 through 3/17/00 through Six Months Ended 2/29/00 3/16/00 3/16/00 8/31/00 8/31/00 --------------------------------------------------------------------------------------- (unaudited) (unaudited) (unaudited) (unaudited) (unaudited) Net Sales................ $ -- $ 507 $ -- $ 7,102 $ 7,609 Cost of goods sold......... -- 43 -- 496 539 ------ ----- ------ ------- ------- Gross profit............... -- 464 -- 6,606 7,070 Selling, general and administrative expenses, including amortization... (181) 761 12 9,873 10,646 ------ ----- ------ -------- ------- Operating loss............. (181) (297) (12) (3,267) (3,576) Interest Expense........... 834 834 Other expense (income)..... 1 (1) 1 90 90 Income tax expense......... -- -- -- -- -- ------ ----- ------ ------- ------- Net income (loss)........ $ (180) $(298) $ (11) $(4,191) $(4,500) ====== ===== ====== ======= =======
22 26 PICKAX, INC. AND SUBSIDIARIES NOTES TO CONDENSED CONSOLIDATED STATEMENTS OF FINANCIAL POSITION AND STATEMENTS OF OPERATIONS - -------------------------------------------------------------------------------- 1. The unaudited financial information furnished herein reflects all adjustments, consisting only of normal recurring items, which in the opinion of management are necessary to fairly state the Company's financial position. These financial statements should be read in conjunction with Pick Systems, Inc. audited financial statements for the fiscal year ended February 29, 2000. The results of operations for the period ended May 31, 2000 are not necessarily indicative of results to be expected for any other interim period or the fiscal year ending March 31, 2000. The Company anticipates conforming its fiscal year to that of its proposed acquiror Omnis Technology Corporation. Further information regarding the proposed transaction is contained in the proxy statement. 2. The Statements of Financial Position included herein present the financial position of PickAx, Inc. as of February 29, 2000 and August 31, 2000. The Statements of Operations included herein reflect the operations of PickAx, Inc. from March 1, 2000 through March 16, 2000 and the combined operations of PickAx, Inc. including the results of combined operations of Pick Systems, Inc. together with PickAx, Inc. including the results of combined operations of Pick Systems, Inc. together with PickAx, Inc. for the period March 17, 2000 through August 31, 2000. PickAx, Inc. acquired substantially all of the common stock of Pick Systems, Inc. on March 16, 2000. 3. George Olenik, the former President, of Pick Systems, Inc. has claimed a letter contract that demands both severance pay and a commission on the sale of Pick Systems, Inc. were due him upon his resignation as part of the sale of Pick Systems, Inc. to PickAx, Inc. The letter was presented as part of the probate court proceedings under which PickAx, Inc. bought Pick Systems, Inc. Dennis Tvelia, former Chief Financial Officer of Pick Systems, Inc., has claimed that he had been promised an employment contract with severance pay provisions by certain members of the prior Board of Directors. PickAX, Inc. does not believe that it has an obligation to either party, and that these claims are without merit and will not have a material deleterious financial statement impact. 4. Defined Benefit Plan: Richard A. Pick established a defined benefit for the employees and then ended the plan prior to his death with the establishment of a 401K plan. The paperwork to end the plan was not properly completed. The prior management of the company retained counsel to reach a settlement with the Internal Revenue Service to end the plan. The settlement appears about complete and there are sufficient assets in the plan to terminate it without material effect to the Company's financial statements. 5. Park Applications Computer Engineering Ltd. A contract with Park Applications Computer Engineering, Ltd., a UK Limited Company, ("PACE") for the use of the Edge Business Framework and software component library was terminated due to misrepresentations on the part of PACE regarding the reliability of the product. The contract called for payment of $1.2 M. The Company paid $320,000. All rights to the software reverted to the PACE. Six employees of Park had been hired in Northern Ireland to modify the software for Pick Systems, Inc. These employees were given contracts which provided for two months severance. These employees were terminated and a settlement of severance has been offered. Pick Systems, Inc. believes it acted within its legal rights and that there will not be a material financial statement impact. 6. In May, 2000, termination notices were given to the three authorized distributors of Pick Systems, Inc. products in the United States. One of the distributors so terminated has indicated that it intends to file a demand for arbitration regarding its distribution agreement with Pick Systems, Inc. The Company believes such action will not have a material effect on its financial statements or business operations. 7. On May 31, 2000 PickAx, Inc. had 100,000,000 shares of $.01 par value common stock authorized and 5,376,734 issued and outstanding. The Company also has outstanding 4,528,500 warrants to purchase common stock of the Company, 4,026,000 of the warrants have an exercise price of $1.25, were issued on March 16, 2000 and have lives of 5 years. The remaining 452,500 warrants have an exercise price of $1.50, were issued on June 15, 2000 and have lives of 5 years. 8. PickAx, Inc. has formed for the purpose of acquiring Pick Systems, Inc. and its international subsidiaries. The funds for the acquisition were raised by PickAx, Inc. The purchase price for Pick Systems, Inc. was $19,500,000 paid in three installments: (1) a deposit made on March 3, 2000, (2) a 10% payment of $1,950,000 paid on March 6, 2000 and, (3) $17,300,000 paid at closing on March 16, 2000. The acquisition was accounted for as a purchase with $19,537,000 in goodwill recorded, representing the excess of the purchase price paid over the fair value of assets required. The source of the funding of the $17,300,000 came from a short-term convertible note held by Astoria Capital Partners, LP., originally due June 14, 2000 but extended until November 30, 2000. The note bears interest at 10% and is convertible into 13,840,000 shares of PickAx, Inc. at $1.25 per share. Astoria Capital Partners, LP., has agreed to convert this convertible note into a non-convertible 2 year term note at the close of the proposed transactions and as disclosed elsewhere in this report. 23 27 UNAUDITED PRO FORMA COMBINED BALANCE SHEET (Dollars in thousands)
Omnis PickAx Combined September 30, August 31, Pro Forma September 30, 2000 2000 Adjustments 2000 ------------- ---------- ----------- ------------- ASSETS Current assets: Cash and cash equivalents ............. $ 621 $ 779 $ 4,000 (1) $ 5,400 Accounts receivable (net of allowances) 818 2,746 3,564 Other current assets .................. 208 412 620 -------- -------- -------- --------- Total Current assets ................ 1,647 3,937 9,584 Property, furniture and equipment (net) . 912 514 1,426 Intangible assets (net) .................. 1,434 23,951 46,897 (2) 72,282 Other assets ............................. -- 228 228 -------- -------- -------- --------- Total assets ........................ $ 3,993 $ 28,630 $ 50,897 $ 83,520 ======== ======== ======== ========= LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY) Current liabilities: Notes payable ......................... $ 3,146 $18,045 (16,300)(3) $ 4,891 Accounts payable ...................... 620 1,947 500 (4) 3,067 Accrued liabilities ................... 928 7,068 -- 7,996 Deferred revenue ...................... 300 4,306 -- 4,606 -------- -------- -------- --------- Total Current liabilities ........... 4,994 31,366 (15,800) 20,560 Long term debt ........................... 1,003 -- 13,860 (5) 14,863 -------- -------- -------- --------- Total liabilities ................... 5,997 31,366 (1,940) 35,423 Stockholders' equity (deficiency) Preferred stock ....................... 300 -- -- 300 Common stock .......................... 1,026 55 324 (6) 1,405 Additional paid-in capital ............ 51,349 1,591 59,187 (7) 112,127 Unearned compensation ................. (1,507) -- (6,674)(8) (8,181) Accumulated deficit ................... (53,477) (4,382) -- (57,859) Accumulated other comprehensive income. 305 -- -- 305 -------- -------- -------- --------- Stockholders' equity (deficiency) ..... (2,004) (2,736) 52,837 48,097 -------- -------- -------- --------- $ 3,993 $ 28,630 $ 50,897 $ 83,520 ======== ======== ======== =========
- ------------ (1) To record assumed proceeds from $4.0 million short-term loan required of PickAx, Inc. as a condition to the completion of the proposed transaction. (2) Increase in Goodwill of $46,897 comprised of $22,957 of common stock acquired, $19,035 of warrants assumed, $1,669 of vested options assumed and $500 in estimated transaction costs, plus $2,736 in negative assets acquired. (3) Reclassification of $17.3 million in PickAx, Inc. short-term debt to long-term debt, conversion of $3.0 million of Omnis short-term debt to equity and the addition in $4.0 million in short-term debt by PickAx, Inc., a condition of the proposed transaction. (4) Estimated transaction costs of $500 included in accounts payable. (5) To reflect the assumption of $17.3 million in PickAx, Inc. long term debt by Omnis and to record a discount of $3,440 to reflect the issuance of an additional 500,000 warrants associated with the assumption of such debt. (6) To record $274 in par value of Omnis common stock issued in exchange for PickAx, Inc. common stock and to reflect a $50 increase in par value a result of the conversion of a $3.0 million short-term note held by Omnis, converted to equity. (7) Issuance of $22,683 in Omnis common stock for PickAx, Inc. common stock. Issuance of $19,035 in Omnis warrants in exchange for PickAx, Inc. warrants and to record $3,440 in additional warrants issued in conjunction with the assumption of $17.3 million debt associated with the proposed transaction. To record $1,669 in vested options assumed, $6,674 in unvested options assumed and $2,950 representing the conversion of a $3.0 million note to equity at closing, plus net $2,736 of negative assets acquired. (8) Unearned compensation of $6,674 associated with the assumption of the PickAx, Inc. options issued by Omnis. 24 28 PRO FORMA COMBINED CONDENSED STATEMENTS OF OPERATIONS (unaudited) (in thousands except per share amounts)
Year Ended March 31, 2000(1) --------------------------------------------------------------- Pro Forma Pro Forma Omnis Pick Adjustments Combined -------- -------- ----------- --------- (in thousands, except per share data) Net Sales .................. $ 6,210 $ 17,334 $ -- $ 23,544 Cost of goods sold ......... 472 694 -- 1,166 -------- -------- -------- -------- Gross profit ............... 5,738 16,640 -- 22,378 -------- -------- -------- -------- Selling, general and administrative expenses, including amortization ... 10,312 18,256 8,312 (2) 36,880 -------- -------- -------- -------- Operating loss ............. (4,574) (1,616) (8,312) (14,502) -------- -------- -------- -------- Interest expense (income) .. 124 (147) 3,544 (3) 3,521 Other expense .............. -- 194 -- 194 Income tax expense ......... 396 -- 394 -------- -------- -------- -------- Net income (loss) .......... $ (4,696) $ (2,059) $(11,856) $(18,611) ======== ======== ======== ======== Net income (loss) per share: Basic and diluted ........ $ (0.48) $ (1.43) ======== ======== Number of shares used in per share calculations: Basic and diluted ........ 9,768 (4) 3,244 13,012
Six Months Ended September 30, 2000(1) -------------------------------------------------------------- Pro Forma Pro Forma Omnis Pick Adjustments Combined -------- -------- ----------- -------- (in thousands, except per share data) Net Sales .................. $ 2,072 $ 7,609 $ -- $ 9,681 Cost of goods sold ......... 423 539 -- 962 -------- -------- ------- -------- Gross profit ............... 1,649 7,070 -- 8,719 Selling, general and administrative expenses, including amortization ... 4,940 10,646 3,179 (2) 18,765 -------- -------- ------- -------- Operating loss ............. (3,291) (3,576) (3,179) (10,046) -------- -------- ------- -------- Interest expense (income) .. 104 834 1,772 (3) 2,710 Other expense .............. -- 90 -- 90 Income tax expense ......... -- -- -- -- -------- -------- ------- -------- Net income (loss) .......... $ (3,395) $ (4,500) $(4,951) $(12,846) ======== ======== ======= ======== Net income (loss) per share: Basic and diluted ........ $ (0.33) $ (0.96) ======== ======== Number of shares used in per share calculations: Basic and diluted ........ 10,186 3,182 (4) 13,368
- ------------ (1) For purposes of the pro forma combined data, Pick's financial data for its fiscal year ended February 29, 2000 and its fiscal six months ended August 31, 2000 have been combined with the Company's financial data for the fiscal year ended March 31, 2000 and six months September 30, 2000. (2) To record additional amortization of unearned compensation expense of $1,669 and $834 for the fiscal year and six months presented, respectively. In addition to record the increase in amortization of goodwill of $4,689 and $2,345 for the fiscal year and six months presented, respectively. Goodwill will be amortized on a straight-line basis over 10 years. Also includes amortization of goodwill of $1,954 for the acquisition of Pick Systems by PickAx, for the fiscal year. (3) To record additional interest expense a result of the assumption of the $17,300 note of $1,384 and $692 for the fiscal year and six months presented, respectively. In addition to reflect additional interest expense associated with the amortization of 500,000 warrants associated with the assumption of the same note of $1,720 and $860 for the fiscal year and six months presented, respectively. To record additional interest expense of $440 and $220 for $4.0 million in short-term debt required to be obtained by PickAx, Inc. prior to the closing of the proposed transaction. (4) Net additional common shares of Omnis Technology Corporation exchanged for PickAx, Inc. shares. 25 29 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. RAINING DATA CORPORATION Date: June 21, 2001 By: /s/ SCOTT ANDERSON, JR. -------------------------------- Scott K. Anderson, Jr. Vice President -- Finance, Treasurer and Secretary 30 INDEX TO EXHIBITS
EXHIBIT DESCRIPTION ------- ----------- 2.1 Agreement and Plan of Merger, dated as of August 23, 2000, by and among Omnis Technology Corporation, Raining Merger Sub, Inc., PickAx, Inc. and Gilbert Figueroa (included as Appendix A to the Registrant's Definitive Proxy Statement filed with the Commission on November 16, 2000 and incorporated herein by reference) 4.1 Common Stock Purchase Agreement - Cash Purchase, dated as of December 4, 2000, by and between the Registrant and Astoria Capital Partners, L.P. 4.2 Common Stock Purchase Agreement - PickAx Note, dated as of December 4, 2000, by and between the Registrant and Astoria Capital Partners, L.P. 4.3 Common Stock Purchase Agreement - Individual, dated as of December 4, 2000, by and between the Registrant and Harry Augur 4.4 Common Stock Purchase Agreement - Individual, dated as of December 4, 2000, by and between the Registrant and Robert van Roijen 4.5 Registration Rights Agreement, dated as of December 4, 2000, by and among the Registrant, Astoria Capital Partners, L.P., Harry Augur and Robert van Roijen 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of BDO Spencer Steward (Johannesburg) Incorporated 23.3 Consent of Mazars Neville Russell
EX-4.1 2 a70482aex4-1.txt EXHIBIT 4.1 1 EXHIBIT 4.1 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT -- CASH PURCHASE This Agreement is made as of December 4, 2000 (the "Effective Date") among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P., a California limited partnership (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 Two Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par value ("Common Stock"), 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 the Shares. Subject to the terms and conditions hereof, the Company will issue and sell to the Purchaser, and the Purchaser will buy from the Company, Nine Hundred Sixty-Nine Thousand Six Hundred Ninety-Seven (969,697) shares of its Common Stock (the "Shares") at a price of Four Dollars Twelve and One-Half Cents ($4.125) per share for an aggregate purchase price of Four Million Dollars ($4,000,000)(the "Purchase Price"). Contemporaneously herewith and subject to the same terms and conditions, the Company will cause the issuance of and sell to each of the persons and entities (the "Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will purchase from the Company, the total number of shares of Common Stock specified opposite such Additional 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 Four Dollars Twelve and One-Half Cents ($4.125) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Shares hereunder shall be held at the offices of Morrison & Foerster, LLP, 425 Market Street, 33d Floor, San Francisco, California 94105 at 4 p.m. local time on December 4, 2000 (the "Closing") or as soon thereafter as the conditions to the Closing set forth in 2 Sections 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchaser shall agree (the "Closing Date"). (b) Delivery. As of the Closing, the Company shall issue irrevocable instructions to its transfer agent to cause the issuance to the Purchaser of a duly executed stock certificate or certificates evidencing the Shares registered in the Purchaser's name as set forth above, representing the number of Shares designated in Section 1(b) to be purchased by the Purchaser. (c) Payment of Purchase Price. Purchaser shall pay the full amount of the Purchase Price at the Closing by wire transfer pursuant to the instructions of the Company. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically set forth in any disclosure schedule provided by the Company and attached hereto (the "Disclosure Schedule"), the parts of which are numbered to correspond to the Section numbers of this Agreement, the Company hereby represents and warrants to the Purchaser as follows: (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 and is qualified to do business in the State of California. The Company and each of its subsidiaries in the United States and the United Kingdom 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) Authority. The execution, delivery and performance by the Company of this Agreement and the Registration Rights Agreement (as defined below) and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Company and its board of directors. The Company has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby with the Purchaser, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding valid obligations 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. 2 3 (c) Capitalization. (i) On December 1, 2000 a Certificate of Merger was filed with the Delaware Secretary of State effecting the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement (as hereinafter defined) provided to the Purchaser hereunder). Pursuant to the Pick Merger, the Company acquired all of the capital stock of PickAx, Inc., a Delaware corporation, and the Company changed its name to Raining Data Corporation. (ii) As of the Effective Date the authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, of which 10,278,230 shares were issued and outstanding immediately prior to the Pick Merger and an additional 3,493,369 shares are being issued and will be outstanding in connection with the Pick Merger; and 300,000 shares of Series A Convertible Preferred Stock ("Preferred Stock"), all of which are issued and outstanding. Such shares do not include the issuance or assumption or exercise of any outstanding options or warrants to purchase capital stock of the Company as of the Effective Date or the Closing Date. (iii) The outstanding shares of Common Stock and Preferred 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, subject to the reliance of the Company on representations made by the purchasers thereof. The Preferred Stock has the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Raining Data Corporation fka Omnis Technology Corporation substantially in the form attached hereto and made a part hereof as Exhibit C ("Certificate of Designations"). (iv) There are no options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any shares of the stock or other securities of the Company, except for (1) stock options granted to employees, directors and contractors of the Company or its subsidiaries; (2) warrants or stock options granted or assumed in connection with the Pick Merger; (3) that certain warrant to purchase 500,000 shares of the Common Stock of the Company at an exercise price of $7 per share granted to Astoria Capital Partners, L.P.; and (4) a de minimis amount which may be unaccountable due to past record keeping practices. (d) Shares. 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 3 4 Certificate; 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 federal and securities laws and the terms and conditions of this Agreement and the Registration Rights Agreement, including but not limited to the representations and warranties of the Purchaser being relied upon by the Company hereunder as the basis for federal and state securities law exemptions. (e) Subsidiaries. As of the Effective Date, 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. As of December 1, 2000 the Company also acquired all of the outstanding capital stock of PickAx, Inc., a Delaware corporation. (f) Financial Statements. The Company has delivered to the Purchaser (i) the audited consolidated balance sheet of the Company as of March 31, 2000, and the related audited statements of operations, changes in stockholder's equity and cash flows of the Company for the fiscal year ended March 31, 2000, together with the notes thereto and the report and certification of auditor relating thereto; and (ii) the unaudited consolidated balance sheet of the Company as of September 30, 2000 and the unaudited statements of operations, changes in stockholder's equity and cash flows of the Company as of September 30, 2000 for the six (6) months then ended, together with the notes thereto; all as part of the SEC Filings provided to the Purchaser hereunder (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe in all material respects 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 the Purchaser copies of the Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 2000 as filed with the Securities and Exchange Commission (the "SEC") on July 31, 2000, without exhibits; the Quarterly Reports on Form 10-Q for the quarters ended June 30, 2000 and September 30, 2000 as filed with the SEC on August 10, 2000 and November 6, 2000 respectively; the definitive proxy statement for the 2000 annual meeting of the stockholders of the Company as filed with the SEC on October 10, 2000; and the definitive proxy statement for the special meeting of the stockholders of the Company with respect to the Pick Merger as filed with the SEC on November 16, 2000 ("Merger Proxy Statement") (collectively "SEC Filings"). Such SEC Filings complied at the time they were filed in all material respects with applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Since September 4 5 30, 2000 there has not been any material change in the assets, liabilities, condition (financial or otherwise) or results of operations of the Company except (i) 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 result of operations; (ii) the consummation of the Pick Merger on December 1, 2000; and (iii) the exercise of a warrant and related cancellation of a credit facility promissory note made by the Company in the principal amount of $3 Million by Astoria Capital Partners, L.P., in exchange for 645,400 shares of the Common Stock of the Company at an exercise price of $5 per share, in connection with the Pick Merger. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby with the Purchaser 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 Certificate 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 known to and applicable to the Company or its properties or assets, subject to federal and state securities laws; 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 or the consummation of any other transaction with the Purchaser contemplated hereby, except 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 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. To the knowledge of the Company, there is no action, proceeding or investigation pending or 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 with Purchaser 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 material change in the current equity ownership of the Company. The Company (a) is not a party to any such 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 5 6 government agency or instrumentality in such connection, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) Adverse Effects. There is no fact within the knowledge of the Company as of the Closing Date (other than publicly known facts relating to political or economic matters of general applicability that may adversely affect all comparable entities) that will have a material adverse effect on the Company's business, condition, assets, liabilities, operations, financial performance, net income or prospects or on the ability of the Company to comply with or perform any covenant or obligation under this Agreement; subject however to the risk factors and disclosures set forth in the SEC Filings, including but not limited to the risk factors and disclosures relating to the Pick Merger as set forth in the Merger Proxy Statement. (l) 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. (m) Brokers or Finders. The Company has not incurred and will not incur, as a result of any action taken by the 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 with Purchaser contemplated hereby. The Company agrees to fully indemnify and defend and hold harmless Purchaser from and against all such liabilities incurred by the Company in connection with the transactions with Purchaser contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. (n) Effective Dates. The representations and warranties of the Company set forth in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants and covenants to the Company with respect to its purchase of the Shares as follows: (a) Organization; Authority. The Purchaser is a limited partnership duly organized, validly existing and in good standing under the laws of the State of California, is duly qualified to conduct business and is in good standing under the laws of each jurisdiction in which the nature of its business or the ownership or leasing of its 6 7 properties requires such qualification. The Purchaser has all requisite power and authority to own and operate its properties and assets. The execution, delivery and performance by the Purchaser of this Agreement and the Registration Rights Agreement and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Purchaser. The Purchaser has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding valid obligations of the 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. (b) Accredited Investor. The Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933 ("Securities Act") (excerpts of the definition of "accredited investor" are attached hereto and made a part hereof as Exhibit D). The principal office of Purchaser is located in the State indicated in the space provided in the signature page hereof. (c) Experience. The Purchaser, by reason of his or its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Purchaser is capable of (i) evaluating the merits and risks of an investment in the Shares and making an informed investment decision, (ii) protecting his or its own interest and (iii) bearing the economic risk of such investment. If the Purchaser has retained a stockholder representative with respect to the investment in the Shares, then the Purchaser shall, prior to or at the Closing hereunder, (x) acknowledge in writing such representation and (y) cause such representative to execute and deliver such statements or other certificates to the Company containing such representations as are reasonably requested by the Company. (d) Investment Intent. The Purchaser is acquiring the Shares for investment for his or its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. The Purchaser has not been formed for the specific purpose of acquiring the Shares. (e) Certain Restrictions. The Purchaser understands that the Shares have not been registered under the Securities Act or state securities laws and are being issued by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other matters, the bona 7 8 fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser further understands that the Company shall have no obligation to register the Shares under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except pursuant to the Registration Rights Agreement to be entered into in connection with this Agreement. The Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from such registration is available. The Purchaser hereby acknowledges that because of the restrictions on transfer or assignment of such Shares to be issued hereunder, the Purchaser may have to bear the economic risk of the investment commitment in the Shares for an indefinite period of time. The Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its or his entire investment in the Company could be lost. (f) Compliance with Securities Laws. The Purchaser will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Shares. In furtherance of the foregoing, and in addition to the restrictions contained herein or in the Registration Rights Agreement, the Purchaser will not offer to sell, exchange, transfer, pledge, or otherwise dispose of any of the Shares unless at such time at least one of the following is satisfied: (i) a registration statement under the Securities Act covering the Shares proposed to be sold, transferred or otherwise disposed of, describing the manner and terms of the proposed sale, transfer or other disposition, and containing a current prospectus, shall have been filed with the SEC and shall then be effective under the Securities Act; (ii) such transaction shall be permitted pursuant to the provisions of Rule 144; (iii) counsel representing the Purchaser, satisfactory to the Company, shall have advised the Company in a written opinion letter reasonably satisfactory to the Company and its counsel, and upon which the Company and its counsel may rely, that no registration under the Securities Act would be required in connection with the proposed sale, transfer or other disposition; or (iv) an authorized representative of the SEC shall have rendered written advice to the Purchaser (sought by the Purchaser or counsel to the Purchaser, with a copy thereof and of all other related communications delivered to the Company) to the effect that the SEC would take no action, or that the staff of the SEC would not recommend that the SEC take action, with respect to the proposed sale, transfer or other disposition if consummated. The 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. 8 9 (g) Restrictive Legend. All certificates representing the Shares deliverable to the Purchaser hereunder and any certificates subsequently issued with respect thereto or in substitution therefor, unless a sale, transfer or other disposition is executed pursuant to one or more of the alternative conditions set forth in Section 4(f) shall have occurred, or unless the conditions of paragraph (k) of Rule 144 promulgated under the Securities Act shall have been satisfied, shall bear a legend substantially as follows, in addition to any legend the Company determines in its sole judgment is required pursuant to any applicable legal requirement: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS SPECIFIED IN THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT DATED AS OF DECEMBER 4, 2000 AND THAT CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 4, 2000, COPIES OF EACH OF WHICH RAINING DATA CORPORATION WILL FURNISH, WITHOUT CHARGE, TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST THEREFOR" The Company, at its discretion, may cause a stop transfer order to be placed with its transfer agent(s) with respect to the certificates for the Shares but not as to the certificates for any part of the Shares as to which said legend is no longer appropriate when one or more of the alternatives set forth in Section 4(f) shall have been satisfied. (h) Access to Information. The Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that the Purchaser reasonably considers important in making the decision to purchase the Shares. The Purchaser has received and has reviewed the SEC Filings of the Company. The 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. The 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 intended as and were not a thorough or exhaustive description or disclosure of the subject matter thereof. (i) Absence of Claims. The Purchaser has no knowledge of any causes of action or other claims that could have been or in the future might be asserted by the Purchaser against the Company or any of its predecessors, successors, affiliates, 9 10 assigns, directors, employees, agents or representatives arising out of facts or circumstances occurring at any time on or prior to the date hereof and in any manner relating to any duty or obligation of the Company or such other related person or entity to the Purchaser or any affiliate. (j) 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 the Purchaser and any third person or entity; and the Purchaser is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (k) Full Disclosure. The representations and warranties of the 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. (l) Brokers or Finders. The Purchaser has not incurred and will not incur, as a result of any action taken by the 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 such liabilities incurred by Purchaser 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. (m) Effective Dates. The representations and warranties of the Purchaser in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 5. PURCHASER'S CONDITIONS TO CLOSING. The obligation of the Purchaser 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 the Purchaser if not consented to in writing: (a) Closing of Pick Merger. The closing of the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement provided to the Purchaser hereunder) shall have occurred. 10 11 (b) Representations. 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. (c) 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. (d) Compliance Certificate. The Company will have delivered to the Purchaser a Certificate dated as of the Closing signed by the President of the Company certifying that the conditions set forth in Section 5(b) and (c) have been fulfilled. 6. COMPANY'S CONDITIONS TO CLOSING. The obligation of the Company 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 Purchaser in Section 4 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 Purchaser on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Compliance Certificate. If the Purchaser is not an individual, the Purchaser will have delivered to the Company a Certificate dated as of the Closing signed by the President or General Partner of the Purchaser certifying that the conditions set forth in Section 6(a) and (b) have been fulfilled. 7. USE OF PROCEEDS. The Company shall be entitled to use the proceeds from the sale of the Shares for such corporate purposes as determined by the management of the Company from time to time. 11 12 8. REGISTRATION RIGHTS. The Company will register all the Shares to be purchased by the Purchaser resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably agree upon, pursuant to the terms of that certain Registration Rights Agreement substantially in the form attached hereto and made a part hereof as Exhibit E (the "Registration Rights Agreement"). 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 Francisco County 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 Francisco County, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. The 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, which may be withheld in its sole discretion. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, stockholders, affiliates, partners, members, agents, representatives, successors and assigns of each of the parties hereto. (c) Entire Agreement. This Agreement and the Registration Rights Agreement constitute 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) Waiver; Remedies. Any failure to enforce or delay in enforcing any of rights or obligations for the benefit of a party shall not be treated as a waiver thereof. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be 12 13 cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law. (e) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder ("Notices") shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, (c) by United States first class registered or certified mail return receipt requested, or (d) by telefacsimile, using equipment that provides written confirmation of receipt, addressed to the other party at the address or facsimile number for such party provided herein; and the date of notice shall be the earlier of (i) actual receipt of notice by any permitted means, or (ii) three (3) business days following dispatch by overnight delivery service or the United States Mail; provided however any notice delivered by telefacsimile shall be effective only if the facsimile is legible and if a confirming copy is sent by any other permitted means hereunder within ten (10) days after transmission. All Notices shall be addressed: (x) if to the Purchaser, at the Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as the 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 the Purchaser for such purpose, with a copy to: Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attention: Stafford Matthews, Esq. (f) Counterparts. This Agreement may be executed in one 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. (g) 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. (h) 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. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation. Except as otherwise indicated, all references in this Agreement to 13 14 "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement. (i) Attorneys' 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. (j) Survival of Representations and Warranties. The representations and warranties and covenants 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 shall be deemed made as of the Effective Date and as of the Closing Date. (k) Taxes. The Purchaser shall be responsible for all sales, use and transfer taxes, including but not limited to any value added, stock transfer, gross receipts, stamp duty and real, personal or intangible property transfer taxes, due by reason of the consummation of the issuance, sale or purchase of the Shares, including but not limited to any interest or penalties in respect thereof. (l) Expenses. Each of the parties shall bear all of its own costs and expenses incurred in connection with the negotiation of this Agreement and the sale and purchase of the Shares, including legal and accounting fees incurred in connection therewith. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION a Delaware Corporation By: /s/ Gilbert Figueroa ------------------------------- Gilbert Figueroa, President 17500 Cartwright Road Irvine, California 92614-5846 Attn: President Fax: (949) 250-8187 14 15 PURCHASER: ASTORIA CAPITAL PARTNERS, L.P. By: Astoria Capital Management, Inc., Its General Partner By: /s/ Richard W. Koe ------------------------------- Richard Koe, President 6600 92nd Avenue S.W. Suite 370 Portland Oregon 97223 Fax: (503) 244-3801 State of Principal Office: Oregon 15 16 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AS ON FILE WITH THE COMPANY 16 17 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT B SCHEDULE OF PURCHASERS
NAME SHARES PURCHASE PRICE - ---- ------ -------------- Astoria Capital Partners, L.P. 1,005,548 $ 4,147,886 Astoria Capital Partners, L.P. 969,697 $ 4,000,000 Robert van Roijen 12,121 $ 50,000 Harry Augur 10,000 $ 41,250
17 18 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT C CERTIFICATE OF DESIGNATIONS OF SERIES A CONVERTIBLE PREFERRED STOCK 18 19 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT D DEFINITION OF ACCREDITED INVESTOR (as provided in Rule 501 under the Securities Act of 1933) (a) Accredited Investor. "Accredited Investor" shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person: . . . (3) Any organization described in Section 501 (c) (3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; (4) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; (5) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; (6) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; . . . 19 20 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT E REGISTRATION RIGHTS AGREEMENT [OMITTED] 20 EX-4.2 3 a70482aex4-2.txt EXHIBIT 4.2 1 EXHIBIT 4.2 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT - PICKAX NOTE This Agreement is made as of December 4, 2000 (the "Effective Date") among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P., a California limited partnership (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 Two Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par value ("Common Stock"), 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 the Shares. Subject to the terms and conditions hereof, the Company will issue and sell to the Purchaser, and the Purchaser will buy from the Company, One Million Five Thousand Five Hundred Forty-Eight (1,005,548) shares of its Common Stock (the "Shares") at a price of Four Dollars Twelve and One-Half Cents ($4.125) per share for an aggregate purchase price of Four Million One Hundred Forty Seven Thousand Eight Hundred Eighty-Six Dollars ($4,147,886)(the "Purchase Price"). Contemporaneously herewith and subject to the same terms and conditions, the Company will cause the issuance of and sell to each of the persons and entities (the "Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will purchase from the Company, the total number of shares of Common Stock specified opposite such Additional 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 Four Dollars Twelve and One-Half Cents ($4.125) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Shares hereunder shall be held at the offices of Morrison & Foerster, LLP, 425 Market Street, 33d Floor, San Francisco, California 94105 at 4 p.m. local time on December 4, 2000 (the "Closing") or as soon thereafter as the conditions to the Closing set forth in 2 Sections 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchaser shall agree (the "Closing Date"). (b) Delivery. As of the Closing, the Company shall issue irrevocable instructions to its transfer agent to cause the issuance to the Purchaser of a duly executed stock certificate or certificates evidencing the Shares registered in the Purchaser's name as set forth above, representing the number of Shares designated in Section 1(b) to be purchased by the Purchaser. (c) Payment of Purchase Price. As full payment of the Purchase Price hereunder, Purchaser agrees effective as of the Closing that the certain PickAx, Inc. Promissory Note, dated July 31, 2000, as amended, in the principal amount of Four Million Dollars ($4,000,000)("PickAx Note"), plus all interest thereon and all related obligations and liabilities are and shall be fully and irrevocably cancelled and forgiven and deemed fully released and discharged as to all persons or entities, automatically and without any further act. At the Closing Purchaser shall deliver the original PickAx Note to the Company and will further promptly execute and deliver such other instruments in form and substance satisfactory to the Company, as the Company may reasonably request, to further evidence and effect the full and irrevocable cancellation and forgiveness and discharge and release of the PickAx Note. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically set forth in any disclosure schedule provided by the Company and attached hereto (the "Disclosure Schedule"), the parts of which are numbered to correspond to the Section numbers of this Agreement, the Company hereby represents and warrants to the Purchaser as follows: (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 and is qualified to do business in the State of California. The Company and each of its subsidiaries in the United States and the United Kingdom 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) Authority. The execution, delivery and performance by the Company of this Agreement and the Registration Rights Agreement (as defined below) and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Company and its board of directors. The Company has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby with the Purchaser, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding 2 3 valid obligations 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. (c) Capitalization. (i) On December 1, 2000 a Certificate of Merger was filed with the Delaware Secretary of State effecting the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement (as hereinafter defined) provided to the Purchaser hereunder). Pursuant to the Pick Merger, the Company acquired all of the capital stock of PickAx, Inc., a Delaware corporation, and the Company changed its name to Raining Data Corporation. (ii) As of the Effective Date the authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, of which 10,278,230 shares were issued and outstanding immediately prior to the Pick Merger and an additional 3,493,369 shares are being issued and will be outstanding in connection with the Pick Merger; and 300,000 shares of Series A Convertible Preferred Stock ("Preferred Stock"), all of which are issued and outstanding. Such shares do not include the issuance or assumption or exercise of any outstanding options or warrants to purchase capital stock of the Company as of the Effective Date or the Closing Date. (iii) The outstanding shares of Common Stock and Preferred 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, subject to the reliance of the Company on representations made by the purchasers thereof. The Preferred Stock has the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Raining Data Corporation fka Omnis Technology Corporation substantially in the form attached hereto and made a part hereof as Exhibit C ("Certificate of Designations"). (iv) There are no options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any shares of the stock or other securities of the Company, except for (1) stock options granted to employees, directors and contractors of the Company or its subsidiaries; (2) warrants or stock options granted or assumed in connection with the Pick Merger; (3) that certain warrant to purchase 500,000 shares of the Common Stock of the Company at an exercise price of $7 per share granted to Astoria Capital Partners, L.P.; and (4) a de minimis amount which may be unaccountable due to past record keeping practices. 3 4 (d) Shares. 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 Certificate; 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 federal and securities laws and the terms and conditions of this Agreement and the Registration Rights Agreement, including but not limited to the representations and warranties of the Purchaser being relied upon by the Company hereunder as the basis for federal and state securities law exemptions. (e) Subsidiaries. As of the Effective Date, 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. As of December 1, 2000 the Company also acquired all of the outstanding capital stock of PickAx, Inc., a Delaware corporation. (f) Financial Statements. The Company has delivered to the Purchaser (i) the audited consolidated balance sheet of the Company as of March 31, 2000, and the related audited statements of operations, changes in stockholder's equity and cash flows of the Company for the fiscal year ended March 31, 2000, together with the notes thereto and the report and certification of auditor relating thereto; and (ii) the unaudited consolidated balance sheet of the Company as of September 30, 2000 and the unaudited statements of operations, changes in stockholder's equity and cash flows of the Company as of September 30, 2000 for the six (6) months then ended, together with the notes thereto; all as part of the SEC Filings provided to the Purchaser hereunder (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe in all material respects 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 the Purchaser copies of the Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 2000 as filed with the Securities and Exchange Commission (the "SEC") on July 31, 2000, without exhibits; the Quarterly Reports on Form 10-Q for the quarters ended June 30, 2000 and September 30, 2000 as filed with the SEC on August 10, 2000 and November 6, 2000 respectively; the definitive proxy statement for the 2000 annual meeting of the stockholders of the Company as filed with the SEC on October 10, 2000; and the definitive proxy statement for the special meeting of the stockholders of the Company 4 5 with respect to the Pick Merger as filed with the SEC on November 16, 2000 ("Merger Proxy Statement") (collectively "SEC Filings"). Such SEC Filings complied at the time they were filed in all material respects with applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Since September 30, 2000 there has not been any material change in the assets, liabilities, condition (financial or otherwise) or results of operations of the Company except (i) 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 result of operations; (ii) the consummation of the Pick Merger on December 1, 2000; and (iii) the exercise of a warrant and related cancellation of a credit facility promissory note made by the Company in the principal amount of $3 Million by Astoria Capital Partners, L.P., in exchange for 645,400 shares of the Common Stock of the Company at an exercise price of $5 per share, in connection with the Pick Merger. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby with the Purchaser 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 Certificate 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 known to and applicable to the Company or its properties or assets, subject to federal and state securities laws; 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 or the consummation of any other transaction with the Purchaser contemplated hereby, except 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 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. To the knowledge of the Company, there is no action, proceeding or investigation pending or 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 with Purchaser contemplated hereby, or which might result, either individually or in the aggregate, in any material adverse 5 6 change in the assets, condition, affairs or prospects of the Company, financially or otherwise, or any material change in the current equity ownership of the Company. The Company (a) is not a party to any such 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 in such connection, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) Adverse Effects. There is no fact within the knowledge of the Company as of the Closing Date (other than publicly known facts relating to political or economic matters of general applicability that may adversely affect all comparable entities) that will have a material adverse effect on the Company's business, condition, assets, liabilities, operations, financial performance, net income or prospects or on the ability of the Company to comply with or perform any covenant or obligation under this Agreement; subject however to the risk factors and disclosures set forth in the SEC Filings, including but not limited to the risk factors and disclosures relating to the Pick Merger as set forth in the Merger Proxy Statement. (l) 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. (m) Brokers or Finders. The Company has not incurred and will not incur, as a result of any action taken by the 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 with Purchaser contemplated hereby. The Company agrees to fully indemnify and defend and hold harmless Purchaser from and against all such liabilities incurred by the Company in connection with the transactions with Purchaser contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. (n) Effective Dates. The representations and warranties of the Company set forth in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants and covenants to the Company with respect to its purchase of the Shares as follows: 6 7 (a) Organization; Authority. The Purchaser is a limited partnership duly organized, validly existing and in good standing under the laws of the State of California, is duly qualified to conduct business and is in good standing under the laws of each jurisdiction in which the nature of its business or the ownership or leasing of its properties requires such qualification. The Purchaser has all requisite power and authority to own and operate its properties and assets. The execution, delivery and performance by the Purchaser of this Agreement and the Registration Rights Agreement and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Purchaser. The Purchaser has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding valid obligations of the 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. (b) Accredited Investor. The Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933 ("Securities Act") (excerpts of the definition of "accredited investor" are attached hereto and made a part hereof as Exhibit D). The principal office of Purchaser is located in the State indicated in the space provided in the signature page hereof. (c) Experience. The Purchaser, by reason of his or its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Purchaser is capable of (i) evaluating the merits and risks of an investment in the Shares and making an informed investment decision, (ii) protecting his or its own interest and (iii) bearing the economic risk of such investment. If the Purchaser has retained a stockholder representative with respect to the investment in the Shares, then the Purchaser shall, prior to or at the Closing hereunder, (x) acknowledge in writing such representation and (y) cause such representative to execute and deliver such statements or other certificates to the Company containing such representations as are reasonably requested by the Company. (d) Investment Intent. The Purchaser is acquiring the Shares for investment for his or its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. The Purchaser has not been formed for the specific purpose of acquiring the Shares. 7 8 (e) Certain Restrictions. The Purchaser understands that the Shares have not been registered under the Securities Act or state securities laws and are being issued by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other matters, the bona fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser further understands that the Company shall have no obligation to register the Shares under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except pursuant to the Registration Rights Agreement to be entered into in connection with this Agreement. The Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from such registration is available. The Purchaser hereby acknowledges that because of the restrictions on transfer or assignment of such Shares to be issued hereunder, the Purchaser may have to bear the economic risk of the investment commitment in the Shares for an indefinite period of time. The Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its or his entire investment in the Company could be lost. (f) Compliance with Securities Laws. The Purchaser will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Shares. In furtherance of the foregoing, and in addition to the restrictions contained herein or in the Registration Rights Agreement, the Purchaser will not offer to sell, exchange, transfer, pledge, or otherwise dispose of any of the Shares unless at such time at least one of the following is satisfied: (i) a registration statement under the Securities Act covering the Shares proposed to be sold, transferred or otherwise disposed of, describing the manner and terms of the proposed sale, transfer or other disposition, and containing a current prospectus, shall have been filed with the SEC and shall then be effective under the Securities Act; (ii) such transaction shall be permitted pursuant to the provisions of Rule 144; (iii) counsel representing the Purchaser, satisfactory to the Company, shall have advised the Company in a written opinion letter reasonably satisfactory to the Company and its counsel, and upon which the Company and its counsel may rely, that no registration under the Securities Act would be required in connection with the proposed sale, transfer or other disposition; or (iv) an authorized representative of the SEC shall have rendered written advice to the Purchaser (sought by the Purchaser or counsel to the Purchaser, with a copy thereof and of all other related communications delivered to the Company) to the effect that the SEC would take no action, or that the staff of the SEC would not recommend that the SEC take action, with respect to the proposed sale, transfer or other disposition if consummated. The Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares 8 9 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. (g) Restrictive Legend. All certificates representing the Shares deliverable to the Purchaser hereunder and any certificates subsequently issued with respect thereto or in substitution therefor, unless a sale, transfer or other disposition is executed pursuant to one or more of the alternative conditions set forth in Section 4(f) shall have occurred, or unless the conditions of paragraph (k) of Rule 144 promulgated under the Securities Act shall have been satisfied, shall bear a legend substantially as follows, in addition to any legend the Company determines in its sole judgment is required pursuant to any applicable legal requirement: "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS SPECIFIED IN THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT DATED AS OF DECEMBER 4, 2000 AND THAT CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 4, 2000, COPIES OF EACH OF WHICH RAINING DATA CORPORATION WILL FURNISH, WITHOUT CHARGE, TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST THEREFOR" The Company, at its discretion, may cause a stop transfer order to be placed with its transfer agent(s) with respect to the certificates for the Shares but not as to the certificates for any part of the Shares as to which said legend is no longer appropriate when one or more of the alternatives set forth in Section 4(f) shall have been satisfied. (h) Access to Information. The Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that the Purchaser reasonably considers important in making the decision to purchase the Shares. The Purchaser has received and has reviewed the SEC Filings of the Company. The 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. The 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 intended as and were not a thorough or exhaustive description or disclosure of the subject matter thereof. 9 10 (i) Absence of Claims. The Purchaser has no knowledge of any causes of action or other claims that could have been or in the future might be asserted by the Purchaser against the Company or any of its predecessors, successors, affiliates, assigns, directors, employees, agents or representatives arising out of facts or circumstances occurring at any time on or prior to the date hereof and in any manner relating to any duty or obligation of the Company or such other related person or entity to the Purchaser or any affiliate. (j) 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 the Purchaser and any third person or entity; and the Purchaser is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (k) Full Disclosure. The representations and warranties of the 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. (l) Brokers or Finders. The Purchaser has not incurred and will not incur, as a result of any action taken by the 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 such liabilities incurred by Purchaser 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. (m) Effective Dates. The representations and warranties of the Purchaser in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 5. PURCHASER'S CONDITIONS TO CLOSING. The obligation of the Purchaser 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 the Purchaser if not consented to in writing: (a) Closing of Pick Merger. The closing of the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said 10 11 parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement provided to the Purchaser hereunder) shall have occurred. (b) Representations. 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. (c) 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. (d) Compliance Certificate. The Company will have delivered to the Purchaser a Certificate dated as of the Closing signed by the President of the Company certifying that the conditions set forth in Section 5(b) and (c) have been fulfilled. 6. COMPANY'S CONDITIONS TO CLOSING. The obligation of the Company 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 Purchaser in Section 4 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 Purchaser on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Compliance Certificate. If the Purchaser is not an individual, the Purchaser will have delivered to the Company a Certificate dated as of the Closing signed by the President or General Partner of the Purchaser certifying that the conditions set forth in Section 6(a) and (b) have been fulfilled. 7. USE OF PROCEEDS. The Company shall be entitled to use the proceeds from the sale of the Shares for such corporate purposes as determined by the management of the Company from time to time. 11 12 8. REGISTRATION RIGHTS. The Company will register all the Shares to be purchased by the Purchaser resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably agree upon, pursuant to the terms of that certain Registration Rights Agreement substantially in the form attached hereto and made a part hereof as Exhibit E (the "Registration Rights Agreement"). 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 Francisco County 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 Francisco County, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. The 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, which may be withheld in its sole discretion. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, stockholders, affiliates, partners, members, agents, representatives, successors and assigns of each of the parties hereto. (c) Entire Agreement. This Agreement and the Registration Rights Agreement constitute 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) Waiver; Remedies. Any failure to enforce or delay in enforcing any of rights or obligations for the benefit of a party shall not be treated as a waiver thereof. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be 12 13 cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law. (e) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder ("Notices") shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, (c) by United States first class registered or certified mail return receipt requested, or (d) by telefacsimile, using equipment that provides written confirmation of receipt, addressed to the other party at the address or facsimile number for such party provided herein; and the date of notice shall be the earlier of (i) actual receipt of notice by any permitted means, or (ii) three (3) business days following dispatch by overnight delivery service or the United States Mail; provided however any notice delivered by telefacsimile shall be effective only if the facsimile is legible and if a confirming copy is sent by any other permitted means hereunder within ten (10) days after transmission. All Notices shall be addressed: (x) if to the Purchaser, at the Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as the 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 the Purchaser for such purpose, with a copy to: Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attention: Stafford Matthews, Esq. (f) Counterparts. This Agreement may be executed in one 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. (g) 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. (h) 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. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation. Except as otherwise indicated, all references in this Agreement to 13 14 "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement. (i) Attorneys' 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. (j) Survival of Representations and Warranties. The representations and warranties and covenants 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 shall be deemed made as of the Effective Date and as of the Closing Date. (k) Taxes. The Purchaser shall be responsible for all sales, use and transfer taxes, including but not limited to any value added, stock transfer, gross receipts, stamp duty and real, personal or intangible property transfer taxes, due by reason of the consummation of the issuance, sale or purchase of the Shares, including but not limited to any interest or penalties in respect thereof. (l) Expenses. Each of the parties shall bear all of its own costs and expenses incurred in connection with the negotiation of this Agreement and the sale and purchase of the Shares, including legal and accounting fees incurred in connection therewith. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION a Delaware Corporation By: /s/ Gilbert Figueroa ------------------------------- Gilbert Figueroa, President 17500 Cartwright Road Irvine, California 92614-5846 Attn: President Fax: (949) 250-8187 14 15 PURCHASER: ASTORIA CAPITAL PARTNERS, L.P. By: Astoria Capital Management, Inc., Its General Partner By: /s/ Richard W. Koe ------------------------------- Richard Koe, President 6600 92nd Avenue S.W. Suite 370 Portland Oregon 97223 Fax: (503) 244-3801 State of Principal Office: Oregon 15 16 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AS ON FILE WITH THE COMPANY 16 17 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT B SCHEDULE OF PURCHASERS
NAME SHARES PURCHASE PRICE - ---- ------ -------------- Astoria Capital Partners, L.P. 1,005,548 $ 4,147,886 Astoria Capital Partners, L.P. 969,697 $ 4,000,000 Robert van Roijen 12,121 $ 50,000 Harry Augur 10,000 $ 41,250
17 18 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT C CERTIFICATE OF DESIGNATIONS OF SERIES A CONVERTIBLE PREFERRED STOCK 18 19 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT D DEFINITION OF ACCREDITED INVESTOR (as provided in Rule 501 under the Securities Act of 1933) (a) Accredited Investor. "Accredited Investor" shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person: . . . (3) Any organization described in Section 501 (c) (3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; (4) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; (5) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; (6) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; . . . 19 20 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT E REGISTRATION RIGHTS AGREEMENT [OMITTED] 20 EX-4.3 4 a70482aex4-3.txt EXHIBIT 4.3 1 EXHIBIT 4.3 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT -- INDIVIDUAL This Agreement is made as of December 4, 2000 (the "Effective Date") among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and HARRY AUGUR (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 Two Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par value ("Common Stock"), 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 the Shares. Subject to the terms and conditions hereof, the Company will issue and sell to the Purchaser, and the Purchaser will buy from the Company, Ten Thousand (10,000) shares of its Common Stock (the "Shares") at a price of Four Dollars Twelve and One-Half Cents ($4.125) per share for an aggregate purchase price of Forty-One Thousand Two Hundred Fifty Dollars ($41,250)(the "Purchase Price"). Contemporaneously herewith and subject to the same terms and conditions, the Company will cause the issuance of and sell to each of the persons and entities (the "Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will purchase from the Company, the total number of shares of Common Stock specified opposite such Additional 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 Four Dollars Twelve and One-Half Cents ($4.125) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Shares hereunder shall be held at the offices of Morrison & Foerster, LLP, 425 Market Street, 33d Floor, San Francisco, California 94105 at 4 p.m. local time on December 4, 2000 (the "Closing") or as soon thereafter as the conditions to the Closing set forth in 2 Sections 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchaser shall agree (the "Closing Date"). (b) Delivery. As of the Closing, the Company shall issue irrevocable instructions to its transfer agent to cause the issuance to the Purchaser of a duly executed stock certificate or certificates evidencing the Shares registered in the Purchaser's name as set forth above, representing the number of Shares designated in Section 1(b) to be purchased by the Purchaser. (c) Payment of Purchase Price. Purchaser shall pay the full amount of the Purchase Price at the Closing by wire transfer pursuant to the instructions of the Company. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically set forth in any disclosure schedule provided by the Company and attached hereto (the "Disclosure Schedule"), the parts of which are numbered to correspond to the Section numbers of this Agreement, the Company hereby represents and warrants to the Purchaser as follows: (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 and is qualified to do business in the State of California. The Company and each of its subsidiaries in the United States and the United Kingdom 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) Authority. The execution, delivery and performance by the Company of this Agreement and the Registration Rights Agreement (as defined below) and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Company and its board of directors. The Company has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby with the Purchaser, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding valid obligations 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. 2 3 (c) Capitalization. (i) On December 1, 2000 a Certificate of Merger was filed with the Delaware Secretary of State effecting the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement (as hereinafter defined) provided to the Purchaser hereunder). Pursuant to the Pick Merger, the Company acquired all of the capital stock of PickAx, Inc., a Delaware corporation, and the Company changed its name to Raining Data Corporation. (ii) As of the Effective Date the authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, of which 10,278,230 shares were issued and outstanding immediately prior to the Pick Merger and an additional 3,493,369 shares are being issued and will be outstanding in connection with the Pick Merger; and 300,000 shares of Series A Convertible Preferred Stock ("Preferred Stock"), all of which are issued and outstanding. Such shares do not include the issuance or assumption or exercise of any outstanding options or warrants to purchase capital stock of the Company as of the Effective Date or the Closing Date. (iii) The outstanding shares of Common Stock and Preferred 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, subject to the reliance of the Company on representations made by the purchasers thereof. The Preferred Stock has the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Raining Data Corporation fka Omnis Technology Corporation substantially in the form attached hereto and made a part hereof as Exhibit C ("Certificate of Designations"). (iv) There are no options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any shares of the stock or other securities of the Company, except for (1) stock options granted to employees, directors and contractors of the Company or its subsidiaries; (2) warrants or stock options granted or assumed in connection with the Pick Merger; (3) that certain warrant to purchase 500,000 shares of the Common Stock of the Company at an exercise price of $7 per share granted to Astoria Capital Partners, L.P.; and (4) a de minimis amount which may be unaccountable due to past record keeping practices. (d) Shares. 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 3 4 Certificate; 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 federal and securities laws and the terms and conditions of this Agreement and the Registration Rights Agreement, including but not limited to the representations and warranties of the Purchaser being relied upon by the Company hereunder as the basis for federal and state securities law exemptions. (e) Subsidiaries. As of the Effective Date, 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. As of December 1, 2000 the Company also acquired all of the outstanding capital stock of PickAx, Inc., a Delaware corporation. (f) Financial Statements. The Company has delivered to the Purchaser (i) the audited consolidated balance sheet of the Company as of March 31, 2000, and the related audited statements of operations, changes in stockholder's equity and cash flows of the Company for the fiscal year ended March 31, 2000, together with the notes thereto and the report and certification of auditor relating thereto; and (ii) the unaudited consolidated balance sheet of the Company as of September 30, 2000 and the unaudited statements of operations, changes in stockholder's equity and cash flows of the Company as of September 30, 2000 for the six (6) months then ended, together with the notes thereto; all as part of the SEC Filings provided to the Purchaser hereunder (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe in all material respects 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 the Purchaser copies of the Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 2000 as filed with the Securities and Exchange Commission (the "SEC") on July 31, 2000, without exhibits; the Quarterly Reports on Form 10-Q for the quarters ended June 30, 2000 and September 30, 2000 as filed with the SEC on August 10, 2000 and November 6, 2000 respectively; the definitive proxy statement for the 2000 annual meeting of the stockholders of the Company as filed with the SEC on October 10, 2000; and the definitive proxy statement for the special meeting of the stockholders of the Company with respect to the Pick Merger as filed with the SEC on November 16, 2000 ("Merger Proxy Statement") (collectively "SEC Filings"). Such SEC Filings complied at the time they were filed in all material respects with applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Since September 4 5 30, 2000 there has not been any material change in the assets, liabilities, condition (financial or otherwise) or results of operations of the Company except (i) 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 result of operations; (ii) the consummation of the Pick Merger on December 1, 2000; and (iii) the exercise of a warrant and related cancellation of a credit facility promissory note made by the Company in the principal amount of $3 Million by Astoria Capital Partners, L.P., in exchange for 645,400 shares of the Common Stock of the Company at an exercise price of $5 per share, in connection with the Pick Merger. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby with the Purchaser 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 Certificate 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 known to and applicable to the Company or its properties or assets, subject to federal and state securities laws; 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 or the consummation of any other transaction with the Purchaser contemplated hereby, except 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 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. To the knowledge of the Company, there is no action, proceeding or investigation pending or 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 with Purchaser 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 material change in the current equity ownership of the Company. The Company (a) is not a party to any such 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 5 6 government agency or instrumentality in such connection, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) Adverse Effects. There is no fact within the knowledge of the Company as of the Closing Date (other than publicly known facts relating to political or economic matters of general applicability that may adversely affect all comparable entities) that will have a material adverse effect on the Company's business, condition, assets, liabilities, operations, financial performance, net income or prospects or on the ability of the Company to comply with or perform any covenant or obligation under this Agreement; subject however to the risk factors and disclosures set forth in the SEC Filings, including but not limited to the risk factors and disclosures relating to the Pick Merger as set forth in the Merger Proxy Statement. (l) 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. (m) Brokers or Finders. The Company has not incurred and will not incur, as a result of any action taken by the 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 with Purchaser contemplated hereby. The Company agrees to fully indemnify and defend and hold harmless Purchaser from and against all such liabilities incurred by the Company in connection with the transactions with Purchaser contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. (n) Effective Dates. The representations and warranties of the Company set forth in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants and covenants to the Company with respect to his purchase of the Shares as follows: (a) Authority. The Purchaser has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will 6 7 constitute the legally binding valid obligations of the 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. (b) Accredited Investor. The Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933 ("Securities Act") (excerpts of the definition of "accredited investor" are attached hereto and made a part hereof as Exhibit D). The Purchaser is resident of the State indicated in the space provided in the signature page hereof. (c) Experience. The Purchaser, by reason of his or its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Purchaser is capable of (i) evaluating the merits and risks of an investment in the Shares and making an informed investment decision, (ii) protecting his or its own interest and (iii) bearing the economic risk of such investment. If the Purchaser has retained a stockholder representative with respect to the investment in the Shares, then the Purchaser shall, prior to or at the Closing hereunder, (x) acknowledge in writing such representation and (y) cause such representative to execute and deliver such statements or other certificates to the Company containing such representations as are reasonably requested by the Company. (d) Investment Intent. The Purchaser is acquiring the Shares for investment for his or its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. The Purchaser has not been formed for the specific purpose of acquiring the Shares. (e) Certain Restrictions. The Purchaser understands that the Shares have not been registered under the Securities Act or state securities laws and are being issued by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other matters, the bona fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser further understands that the Company shall have no obligation to register the Shares under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except pursuant to the Registration Rights Agreement to be entered into in connection with this Agreement. The Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from such registration is available. The Purchaser hereby acknowledges that because of the restrictions on transfer or assignment of such Shares 7 8 to be issued hereunder, the Purchaser may have to bear the economic risk of the investment commitment in the Shares for an indefinite period of time. The Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its or his entire investment in the Company could be lost. (f) Compliance with Securities Laws. The Purchaser will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Shares. In furtherance of the foregoing, and in addition to the restrictions contained herein or in the Registration Rights Agreement, the Purchaser will not offer to sell, exchange, transfer, pledge, or otherwise dispose of any of the Shares unless at such time at least one of the following is satisfied: (i) a registration statement under the Securities Act covering the Shares proposed to be sold, transferred or otherwise disposed of, describing the manner and terms of the proposed sale, transfer or other disposition, and containing a current prospectus, shall have been filed with the SEC and shall then be effective under the Securities Act; (ii) such transaction shall be permitted pursuant to the provisions of Rule 144; (iii) counsel representing the Purchaser, satisfactory to the Company, shall have advised the Company in a written opinion letter reasonably satisfactory to the Company and its counsel, and upon which the Company and its counsel may rely, that no registration under the Securities Act would be required in connection with the proposed sale, transfer or other disposition; or (iv) an authorized representative of the SEC shall have rendered written advice to the Purchaser (sought by the Purchaser or counsel to the Purchaser, with a copy thereof and of all other related communications delivered to the Company) to the effect that the SEC would take no action, or that the staff of the SEC would not recommend that the SEC take action, with respect to the proposed sale, transfer or other disposition if consummated. The 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. (g) Restrictive Legend. All certificates representing the Shares deliverable to the Purchaser hereunder and any certificates subsequently issued with respect thereto or in substitution therefor, unless a sale, transfer or other disposition is executed pursuant to one or more of the alternative conditions set forth in Section 4(f) shall have occurred, or unless the conditions of paragraph (k) of Rule 144 promulgated under the Securities Act shall have been satisfied, shall bear a legend substantially as follows, in addition to any legend the Company determines in its sole judgment is required pursuant to any applicable legal requirement: 8 9 "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS SPECIFIED IN THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT DATED AS OF DECEMBER 4, 2000 AND THAT CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 4, 2000, COPIES OF EACH OF WHICH RAINING DATA CORPORATION WILL FURNISH, WITHOUT CHARGE, TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST THEREFOR" The Company, at its discretion, may cause a stop transfer order to be placed with its transfer agent(s) with respect to the certificates for the Shares but not as to the certificates for any part of the Shares as to which said legend is no longer appropriate when one or more of the alternatives set forth in Section 4(f) shall have been satisfied. (h) Access to Information. The Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that the Purchaser reasonably considers important in making the decision to purchase the Shares. The Purchaser has received and has reviewed the SEC Filings of the Company. The 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. The 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 intended as and were not a thorough or exhaustive description or disclosure of the subject matter thereof. (i) Absence of Claims. The Purchaser has no knowledge of any causes of action or other claims that could have been or in the future might be asserted by the Purchaser against the Company or any of its predecessors, successors, affiliates, assigns, directors, employees, agents or representatives arising out of facts or circumstances occurring at any time on or prior to the date hereof and in any manner relating to any duty or obligation of the Company or such other related person or entity to the Purchaser or any affiliate. (j) 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 the Purchaser and any third 9 10 person or entity; and the Purchaser is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (k) Full Disclosure. The representations and warranties of the 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. (l) Brokers or Finders. The Purchaser has not incurred and will not incur, as a result of any action taken by the 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 such liabilities incurred by Purchaser 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. (m) Effective Dates. The representations and warranties of the Purchaser in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 5. PURCHASER'S CONDITIONS TO CLOSING. The obligation of the Purchaser 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 the Purchaser if not consented to in writing: (a) Closing of Pick Merger. The closing of the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement provided to the Purchaser hereunder) shall have occurred. (b) Representations. 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. (c) 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. 10 11 (d) Compliance Certificate. The Company will have delivered to the Purchaser a Certificate dated as of the Closing signed by the President of the Company certifying that the conditions set forth in Section 5(b) and (c) have been fulfilled. 6. COMPANY'S CONDITIONS TO CLOSING. The obligation of the Company 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 Purchaser in Section 4 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 Purchaser on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Compliance Certificate. If the Purchaser is not an individual, the Purchaser will have delivered to the Company a Certificate dated as of the Closing signed by the President or General Partner of the Purchaser certifying that the conditions set forth in Section 6(a) and (b) have been fulfilled. 7. USE OF PROCEEDS. The Company shall be entitled to use the proceeds from the sale of the Shares for such corporate purposes as determined by the management of the Company from time to time. 8. REGISTRATION RIGHTS. The Company will register all the Shares to be purchased by the Purchaser resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably agree upon, pursuant to the terms of that certain Registration Rights Agreement substantially in the form attached hereto and made a part hereof as Exhibit E (the "Registration Rights Agreement"). 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 Francisco County or the 11 12 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 Francisco County, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. The 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, which may be withheld in its sole discretion. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, stockholders, affiliates, partners, members, agents, representatives, successors and assigns of each of the parties hereto. (c) Entire Agreement. This Agreement and the Registration Rights Agreement constitute 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) Waiver; Remedies. Any failure to enforce or delay in enforcing any of rights or obligations for the benefit of a party shall not be treated as a waiver thereof. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law. (e) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder ("Notices") shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, (c) by United States first class registered or certified mail return receipt requested, or (d) by telefacsimile, using equipment that provides written confirmation of receipt, addressed to the other party at the address or facsimile number for such party provided herein; and the date of notice shall be the earlier of (i) actual receipt of notice by any permitted means, or (ii) three (3) business days following dispatch by overnight delivery service or the United States Mail; provided however any notice delivered by telefacsimile shall be effective only if the facsimile is legible and if a confirming copy is sent by any other permitted means hereunder within ten (10) days after transmission. All Notices shall be addressed: (x) if to the Purchaser, at the Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or 12 13 number as the 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 the Purchaser for such purpose, with a copy to: Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attention: Stafford Matthews, Esq. (f) Counterparts. This Agreement may be executed in one 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. (g) 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. (h) 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. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation. Except as otherwise indicated, all references in this Agreement to "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement. (i) Attorneys' 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. (j) Survival of Representations and Warranties. The representations and warranties and covenants 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 shall be deemed made as of the Effective Date and as of the Closing Date. 13 14 (k) Taxes. The Purchaser shall be responsible for all sales, use and transfer taxes, including but not limited to any value added, stock transfer, gross receipts, stamp duty and real, personal or intangible property transfer taxes, due by reason of the consummation of the issuance, sale or purchase of the Shares, including but not limited to any interest or penalties in respect thereof. (l) Expenses. Each of the parties shall bear all of its own costs and expenses incurred in connection with the negotiation of this Agreement and the sale and purchase of the Shares, including legal and accounting fees incurred in connection therewith. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION a Delaware Corporation By: /s/ Gilbert Figueroa ------------------------------- Gilbert Figueroa, President 17500 Cartwright Road Irvine, California 92614-5846 Attn: President Fax: (949) 250-8187 PURCHASER: /s/ Tamara G. Shelini - --------------------------------------- for Solomon Smith Barney as Custodian Harrison H. Augur, Keogh MP 1071 Willoughby Way P.O. Box 4389 Aspen, Colorado 81611 Fax: 970-925-2045 State of Residence of Purchaser: Colorado 14 15 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AS ON FILE WITH THE COMPANY 15 16 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT B SCHEDULE OF PURCHASERS
NAME SHARES PURCHASE PRICE ---- ------ -------------- Astoria Capital Partners, L.P. 1,005,548 $ 4,147,886 Astoria Capital Partners, L.P. 969,697 $ 4,000,000 Robert van Roijen 12,121 $ 50,000 Harry Augur 10,000 $ 41,250
16 17 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT C CERTIFICATE OF DESIGNATIONS OF SERIES A CONVERTIBLE PREFERRED STOCK 17 18 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT D DEFINITION OF ACCREDITED INVESTOR (as provided in Rule 501 under the Securities Act of 1933) (a) Accredited Investor. "Accredited Investor" shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person: . . . (3) Any organization described in Section 501 (c) (3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; (4) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; (5) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; (6) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; . . . 18 19 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT E REGISTRATION RIGHTS AGREEMENT [OMITTED] 19 EX-4.4 5 a70482aex4-4.txt EXHIBIT 4.4 1 EXHIBIT 4.4 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT -- INDIVIDUAL This Agreement is made as of December 4, 2000 (the "Effective Date") among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ROBERT van ROIJEN (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 Two Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par value ("Common Stock"), 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 the Shares. Subject to the terms and conditions hereof, the Company will issue and sell to the Purchaser, and the Purchaser will buy from the Company, Twelve Thousand One Hundred Twenty-One (12,121) shares of its Common Stock (the "Shares") at a price of Four Dollars Twelve and One-Half Cents ($4.125) per share for an aggregate purchase price of Fifty Thousand Dollars ($50,000)(the "Purchase Price"). Contemporaneously herewith and subject to the same terms and conditions, the Company will cause the issuance of and sell to each of the persons and entities (the "Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will purchase from the Company, the total number of shares of Common Stock specified opposite such Additional 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 Four Dollars Twelve and One-Half Cents ($4.125) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Shares hereunder shall be held at the offices of Morrison & Foerster, LLP, 425 Market Street, 33d Floor, San Francisco, California 94105 at 4 p.m. local time on December 4, 2000 (the "Closing") or as soon thereafter as the conditions to the Closing set forth in 2 Sections 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchaser shall agree (the "Closing Date"). (b) Delivery. As of the Closing, the Company shall issue irrevocable instructions to its transfer agent to cause the issuance to the Purchaser of a duly executed stock certificate or certificates evidencing the Shares registered in the Purchaser's name as set forth above, representing the number of Shares designated in Section 1(b) to be purchased by the Purchaser. (c) Payment of Purchase Price. Purchaser shall pay the full amount of the Purchase Price at the Closing by wire transfer pursuant to the instructions of the Company. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically set forth in any disclosure schedule provided by the Company and attached hereto (the "Disclosure Schedule"), the parts of which are numbered to correspond to the Section numbers of this Agreement, the Company hereby represents and warrants to the Purchaser as follows: (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 and is qualified to do business in the State of California. The Company and each of its subsidiaries in the United States and the United Kingdom 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) Authority. The execution, delivery and performance by the Company of this Agreement and the Registration Rights Agreement (as defined below) and all other agreements or instruments related thereto have been duly authorized by all necessary action on the part of the Company and its board of directors. The Company has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby with the Purchaser, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will constitute the legally binding valid obligations 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. 2 3 (c) Capitalization. (i) On December 1, 2000 a Certificate of Merger was filed with the Delaware Secretary of State effecting the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement (as hereinafter defined) provided to the Purchaser hereunder). Pursuant to the Pick Merger, the Company acquired all of the capital stock of PickAx, Inc., a Delaware corporation, and the Company changed its name to Raining Data Corporation. (ii) As of the Effective Date the authorized capital stock of the Company consists of 30,000,000 shares of Common Stock, of which 10,278,230 shares were issued and outstanding immediately prior to the Pick Merger and an additional 3,493,369 shares are being issued and will be outstanding in connection with the Pick Merger; and 300,000 shares of Series A Convertible Preferred Stock ("Preferred Stock"), all of which are issued and outstanding. Such shares do not include the issuance or assumption or exercise of any outstanding options or warrants to purchase capital stock of the Company as of the Effective Date or the Closing Date. (iii) The outstanding shares of Common Stock and Preferred 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, subject to the reliance of the Company on representations made by the purchasers thereof. The Preferred Stock has the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Raining Data Corporation fka Omnis Technology Corporation substantially in the form attached hereto and made a part hereof as Exhibit C ("Certificate of Designations"). (iv) There are no options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any shares of the stock or other securities of the Company, except for (1) stock options granted to employees, directors and contractors of the Company or its subsidiaries; (2) warrants or stock options granted or assumed in connection with the Pick Merger; (3) that certain warrant to purchase 500,000 shares of the Common Stock of the Company at an exercise price of $7 per share granted to Astoria Capital Partners, L.P.; and (4) a de minimis amount which may be unaccountable due to past record keeping practices. (d) Shares. 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 3 4 Certificate; 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 federal and securities laws and the terms and conditions of this Agreement and the Registration Rights Agreement, including but not limited to the representations and warranties of the Purchaser being relied upon by the Company hereunder as the basis for federal and state securities law exemptions. (e) Subsidiaries. As of the Effective Date, 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. As of December 1, 2000 the Company also acquired all of the outstanding capital stock of PickAx, Inc., a Delaware corporation. (f) Financial Statements. The Company has delivered to the Purchaser (i) the audited consolidated balance sheet of the Company as of March 31, 2000, and the related audited statements of operations, changes in stockholder's equity and cash flows of the Company for the fiscal year ended March 31, 2000, together with the notes thereto and the report and certification of auditor relating thereto; and (ii) the unaudited consolidated balance sheet of the Company as of September 30, 2000 and the unaudited statements of operations, changes in stockholder's equity and cash flows of the Company as of September 30, 2000 for the six (6) months then ended, together with the notes thereto; all as part of the SEC Filings provided to the Purchaser hereunder (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe in all material respects 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 the Purchaser copies of the Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 2000 as filed with the Securities and Exchange Commission (the "SEC") on July 31, 2000, without exhibits; the Quarterly Reports on Form 10-Q for the quarters ended June 30, 2000 and September 30, 2000 as filed with the SEC on August 10, 2000 and November 6, 2000 respectively; the definitive proxy statement for the 2000 annual meeting of the stockholders of the Company as filed with the SEC on October 10, 2000; and the definitive proxy statement for the special meeting of the stockholders of the Company with respect to the Pick Merger as filed with the SEC on November 16, 2000 ("Merger Proxy Statement") (collectively "SEC Filings"). Such SEC Filings complied at the time they were filed in all material respects with applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Since September 4 5 30, 2000 there has not been any material change in the assets, liabilities, condition (financial or otherwise) or results of operations of the Company except (i) 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 result of operations; (ii) the consummation of the Pick Merger on December 1, 2000; and (iii) the exercise of a warrant and related cancellation of a credit facility promissory note made by the Company in the principal amount of $3 Million by Astoria Capital Partners, L.P., in exchange for 645,400 shares of the Common Stock of the Company at an exercise price of $5 per share, in connection with the Pick Merger. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby with the Purchaser 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 Certificate 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 known to and applicable to the Company or its properties or assets, subject to federal and state securities laws; 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 or the consummation of any other transaction with the Purchaser contemplated hereby, except 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 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. To the knowledge of the Company, there is no action, proceeding or investigation pending or 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 with Purchaser 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 material change in the current equity ownership of the Company. The Company (a) is not a party to any such 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 5 6 government agency or instrumentality in such connection, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) Adverse Effects. There is no fact within the knowledge of the Company as of the Closing Date (other than publicly known facts relating to political or economic matters of general applicability that may adversely affect all comparable entities) that will have a material adverse effect on the Company's business, condition, assets, liabilities, operations, financial performance, net income or prospects or on the ability of the Company to comply with or perform any covenant or obligation under this Agreement; subject however to the risk factors and disclosures set forth in the SEC Filings, including but not limited to the risk factors and disclosures relating to the Pick Merger as set forth in the Merger Proxy Statement. (l) 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. (m) Brokers or Finders. The Company has not incurred and will not incur, as a result of any action taken by the 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 with Purchaser contemplated hereby. The Company agrees to fully indemnify and defend and hold harmless Purchaser from and against all such liabilities incurred by the Company in connection with the transactions with Purchaser contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. (n) Effective Dates. The representations and warranties of the Company set forth in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants and covenants to the Company with respect to his purchase of the Shares as follows: (a) Authority. The Purchaser has all right, power and authority to enter into, execute and deliver this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby, and this Agreement and said Registration Rights Agreement, once executed by the Company and the Purchaser, will 6 7 constitute the legally binding valid obligations of the 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. (b) Accredited Investor. The Purchaser is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933 ("Securities Act") (excerpts of the definition of "accredited investor" are attached hereto and made a part hereof as Exhibit D). The Purchaser is resident of the State indicated in the space provided in the signature page hereof. (c) Experience. The Purchaser, by reason of his or its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that the Purchaser is capable of (i) evaluating the merits and risks of an investment in the Shares and making an informed investment decision, (ii) protecting his or its own interest and (iii) bearing the economic risk of such investment. If the Purchaser has retained a stockholder representative with respect to the investment in the Shares, then the Purchaser shall, prior to or at the Closing hereunder, (x) acknowledge in writing such representation and (y) cause such representative to execute and deliver such statements or other certificates to the Company containing such representations as are reasonably requested by the Company. (d) Investment Intent. The Purchaser is acquiring the Shares for investment for his or its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. The Purchaser has not been formed for the specific purpose of acquiring the Shares. (e) Certain Restrictions. The Purchaser understands that the Shares have not been registered under the Securities Act or state securities laws and are being issued by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other matters, the bona fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser further understands that the Company shall have no obligation to register the Shares under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws, except pursuant to the Registration Rights Agreement to be entered into in connection with this Agreement. The Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from such registration is available. The Purchaser hereby acknowledges that because of the restrictions on transfer or assignment of such Shares 7 8 to be issued hereunder, the Purchaser may have to bear the economic risk of the investment commitment in the Shares for an indefinite period of time. The Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its or his entire investment in the Company could be lost. (f) Compliance with Securities Laws. The Purchaser will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Shares. In furtherance of the foregoing, and in addition to the restrictions contained herein or in the Registration Rights Agreement, the Purchaser will not offer to sell, exchange, transfer, pledge, or otherwise dispose of any of the Shares unless at such time at least one of the following is satisfied: (i) a registration statement under the Securities Act covering the Shares proposed to be sold, transferred or otherwise disposed of, describing the manner and terms of the proposed sale, transfer or other disposition, and containing a current prospectus, shall have been filed with the SEC and shall then be effective under the Securities Act; (ii) such transaction shall be permitted pursuant to the provisions of Rule 144; (iii) counsel representing the Purchaser, satisfactory to the Company, shall have advised the Company in a written opinion letter reasonably satisfactory to the Company and its counsel, and upon which the Company and its counsel may rely, that no registration under the Securities Act would be required in connection with the proposed sale, transfer or other disposition; or (iv) an authorized representative of the SEC shall have rendered written advice to the Purchaser (sought by the Purchaser or counsel to the Purchaser, with a copy thereof and of all other related communications delivered to the Company) to the effect that the SEC would take no action, or that the staff of the SEC would not recommend that the SEC take action, with respect to the proposed sale, transfer or other disposition if consummated. The 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. (g) Restrictive Legend. All certificates representing the Shares deliverable to the Purchaser hereunder and any certificates subsequently issued with respect thereto or in substitution therefor, unless a sale, transfer or other disposition is executed pursuant to one or more of the alternative conditions set forth in Section 4(f) shall have occurred, or unless the conditions of paragraph (k) of Rule 144 promulgated under the Securities Act shall have been satisfied, shall bear a legend substantially as follows, in addition to any legend the Company determines in its sole judgment is required pursuant to any applicable legal requirement: 8 9 "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE OTHER CONDITIONS SPECIFIED IN THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT DATED AS OF DECEMBER 4, 2000 AND THAT CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 4, 2000, COPIES OF EACH OF WHICH RAINING DATA CORPORATION WILL FURNISH, WITHOUT CHARGE, TO THE HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST THEREFOR" The Company, at its discretion, may cause a stop transfer order to be placed with its transfer agent(s) with respect to the certificates for the Shares but not as to the certificates for any part of the Shares as to which said legend is no longer appropriate when one or more of the alternatives set forth in Section 4(f) shall have been satisfied. (h) Access to Information. The Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that the Purchaser reasonably considers important in making the decision to purchase the Shares. The Purchaser has received and has reviewed the SEC Filings of the Company. The 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. The 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 intended as and were not a thorough or exhaustive description or disclosure of the subject matter thereof. (i) Absence of Claims. The Purchaser has no knowledge of any causes of action or other claims that could have been or in the future might be asserted by the Purchaser against the Company or any of its predecessors, successors, affiliates, assigns, directors, employees, agents or representatives arising out of facts or circumstances occurring at any time on or prior to the date hereof and in any manner relating to any duty or obligation of the Company or such other related person or entity to the Purchaser or any affiliate. (j) 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 the Purchaser and any third 9 10 person or entity; and the Purchaser is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (k) Full Disclosure. The representations and warranties of the 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. (l) Brokers or Finders. The Purchaser has not incurred and will not incur, as a result of any action taken by the 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 such liabilities incurred by Purchaser 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. (m) Effective Dates. The representations and warranties of the Purchaser in this Agreement are true in all respects as of the date of this Agreement and further shall be true in all material respects on and as of the Closing as though made at that time. 5. PURCHASER'S CONDITIONS TO CLOSING. The obligation of the Purchaser 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 the Purchaser if not consented to in writing: (a) Closing of Pick Merger. The closing of the merger transaction between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant to the terms and conditions of that certain Agreement and Plan of Merger between said parties and Gilbert Figueroa dated as of August 23, 2000 as amended (attached as an Exhibit to the Merger Proxy Statement provided to the Purchaser hereunder) shall have occurred. (b) Representations. 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. (c) 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. 10 11 (d) Compliance Certificate. The Company will have delivered to the Purchaser a Certificate dated as of the Closing signed by the President of the Company certifying that the conditions set forth in Section 5(b) and (c) have been fulfilled. 6. COMPANY'S CONDITIONS TO CLOSING. The obligation of the Company 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 Purchaser in Section 4 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 Purchaser on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Compliance Certificate. If the Purchaser is not an individual, the Purchaser will have delivered to the Company a Certificate dated as of the Closing signed by the President or General Partner of the Purchaser certifying that the conditions set forth in Section 6(a) and (b) have been fulfilled. 7. USE OF PROCEEDS. The Company shall be entitled to use the proceeds from the sale of the Shares for such corporate purposes as determined by the management of the Company from time to time. 8. REGISTRATION RIGHTS. The Company will register all the Shares to be purchased by the Purchaser resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably agree upon, pursuant to the terms of that certain Registration Rights Agreement substantially in the form attached hereto and made a part hereof as Exhibit E (the "Registration Rights Agreement"). 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 Francisco County or the 11 12 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 Francisco County, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. The 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, which may be withheld in its sole discretion. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, stockholders, affiliates, partners, members, agents, representatives, successors and assigns of each of the parties hereto. (c) Entire Agreement. This Agreement and the Registration Rights Agreement constitute 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) Waiver; Remedies. Any failure to enforce or delay in enforcing any of rights or obligations for the benefit of a party shall not be treated as a waiver thereof. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law. (e) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder ("Notices") shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, (c) by United States first class registered or certified mail return receipt requested, or (d) by telefacsimile, using equipment that provides written confirmation of receipt, addressed to the other party at the address or facsimile number for such party provided herein; and the date of notice shall be the earlier of (i) actual receipt of notice by any permitted means, or (ii) three (3) business days following dispatch by overnight delivery service or the United States Mail; provided however any notice delivered by telefacsimile shall be effective only if the facsimile is legible and if a confirming copy is sent by any other permitted means hereunder within ten (10) days after transmission. All Notices shall be addressed: (x) if to the Purchaser, at the Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or 12 13 number as the 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 the Purchaser for such purpose, with a copy to: Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attention: Stafford Matthews, Esq. (f) Counterparts. This Agreement may be executed in one 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. (g) 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. (h) 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. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation. Except as otherwise indicated, all references in this Agreement to "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement. (i) Attorneys' 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. (j) Survival of Representations and Warranties. The representations and warranties and covenants 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 shall be deemed made as of the Effective Date and as of the Closing Date. 13 14 (k) Taxes. The Purchaser shall be responsible for all sales, use and transfer taxes, including but not limited to any value added, stock transfer, gross receipts, stamp duty and real, personal or intangible property transfer taxes, due by reason of the consummation of the issuance, sale or purchase of the Shares, including but not limited to any interest or penalties in respect thereof. (l) Expenses. Each of the parties shall bear all of its own costs and expenses incurred in connection with the negotiation of this Agreement and the sale and purchase of the Shares, including legal and accounting fees incurred in connection therewith. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION a Delaware Corporation By: /s/ Gilbert Figueroa ------------------------------- Gilbert Figueroa, President 17500 Cartwright Road Irvine, California 92614-5846 Attn: President Fax: (949) 250-8187 PURCHASER: /s/ Robert van Roijen - --------------------------------------- Address and Fax Number: 950 North Orlando Avenue, Suite 110 Winter Park, Florida 32789 Fax: (407) 740-0721 State of Residence of Purchaser: Florida 14 15 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AS ON FILE WITH THE COMPANY 15 16 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT B SCHEDULE OF PURCHASERS
NAME SHARES PURCHASE PRICE ---- ------ -------------- Astoria Capital Partners, L.P. 1,005,548 $ 4,147,886 Astoria Capital Partners, L.P. 969,697 $ 4,000,000 Robert van Roijen 12,121 $ 50,000 Harry Augur 10,000 $ 41,250
16 17 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT C CERTIFICATE OF DESIGNATIONS OF SERIES A CONVERTIBLE PREFERRED STOCK 17 18 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT D DEFINITION OF ACCREDITED INVESTOR (as provided in Rule 501 under the Securities Act of 1933) (a) Accredited Investor. "Accredited Investor" shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person: . . . (3) Any organization described in Section 501 (c) (3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; (4) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; (5) Any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; (6) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; . . . 18 19 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT EXHIBIT E REGISTRATION RIGHTS AGREEMENT [OMITTED] 19 EX-4.5 6 a70482aex4-5.txt EXHIBIT 4.5 1 EXHIBIT 4.5 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION REGISTRATION RIGHTS AGREEMENT AS OF DECEMBER 4, 2000 2 RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of December 4, 2000, by and among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "COMPANY") and the undersigned individuals and entities (collectively, the "HOLDERS"). RECITALS WHEREAS, the Company and each of the Holders have entered into certain Common Stock Purchase Agreements of even date herewith (the "PURCHASE AGREEMENT"), which provide for the sale and issuance by the Company of up to Two Million One Hundred Thousand (2,100,000) shares of its Common Stock, $0.10 par value (the "COMMON STOCK") and the purchase by each of the Holders of that number of shares of Common Stock as indicated in the Purchase Agreement of such Holder; WHEREAS, in order to induce the Holders to execute and deliver the Purchase Agreements, the Company desires to grant, and the Holders desire to be granted, the rights created herein. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. REGISTRATION RIGHTS. The Company covenants and agrees as follows: Definitions. For purposes of this Section 1: (a) The term "ACT" means the Securities Act of 1933, as amended. (b) The Term "CLOSING DATE" shall have the same meaning as in the Purchase Agreement and shall refer to the closing date of the purchase of the shares of Common Stock under the Purchase Agreement. (c) The term "COMMON STOCK" means the Common Stock of the Company. (d) The term "FORM S-3" means such form under the Act as in effect on the date hereof or any registration form under the Act subsequently adopted by the SEC that permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC. 3 (e) The term "HOLDER" means any person owning Registrable Securities or any assignee thereof in accordance with Section 1.12 hereof. (f) The term "1934 ACT" means the Securities Exchange Act of 1934, as amended. (g) The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration effected by preparing and filing a Registration Statement or similar document in compliance with the Act, and the declaration or ordering of effectiveness of such Registration Statement or document. (h) The term "REGISTRATION PERIOD" means the period between the date of this Agreement and the earlier of (i) the date on which all of the Registrable Securities have been sold and no further Registrable Securities may be issued in the future, (ii) the date on which all the Registrable Securities (in the opinion of the Holder' counsel) may be immediately sold without registration and without limitation as to volume by each Holder thereof as to the number of Registrable Securities to be sold, pursuant to Rule 144 or otherwise, or (iii) the fourth anniversary of the date of this Agreement; plus the number of days equal to the period or periods of delay or suspension pursuant to Section 1.14(b) hereof. (i) The term "REGISTRABLE SECURITIES" means (1) the Common Stock of the Company issuable or issued to the Holders pursuant to the Purchase Agreements; (2) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for, or in replacement of, the shares referenced in (1) above; and (3) any securities into which any of the foregoing shares are converted or for which any of the foregoing shares are exchanged pursuant to any reorganization or business combination in which the Company is involved; excluding in all cases, however, any Registrable Securities sold by a person (x) in a transaction in which his or its rights under this Section 1 are not assigned, (y) pursuant to a Registration Statement that has been declared effective and such Registrable Securities have been disposed of pursuant to such effective Registration Statement, or (z) in a transaction in which such Registrable Securities are sold pursuant to Rule 144 (or any similar provision then in force) under the Act. (j) The term "REGISTRATION STATEMENT" means a registration statement of the Company filed under the 1934 Act. (k) The term "SEC" shall mean the Securities and Exchange Commission. 1.1 Mandatory Registration. The Company will file with the SEC a Registration Statement on Form S-3 registering the Registrable Securities and any other securities that the Company may determine in its discretion to include in the Registration Statement within 135 days after the Closing Date of the purchase of the shares of Common Stock under the 2 4 Purchase Agreements ("Closing Date"). If (a) Form S-3 is not available at that time and (b) the Holders together with the holders of any other securities of the Company entitled to inclusion in such registration propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public (net of any underwriters' discounts or commissions) of at least Two Million Dollars ($2,000,000), then the Company will file a Registration Statement on such other form as is then available to effect a registration of the Registrable Securities and any other securities that the Company may determine in its discretion to include in the Registration Statement, subject to the consent of the Holders of a majority of the Registrable Securities to be registered thereunder, which consent will not be unreasonably withheld. 1.2 Effectiveness of the Registration Statement. The Company will use its commercially reasonable efforts to cause the Registration Statement filed pursuant to Section 1.1 above to be declared effective by the SEC as soon as practicable after filing, and in any event to be declared effective no later than 180 days after the Closing Date, or if such efforts do not succeed, as soon as practicable thereafter (the "REQUIRED EFFECTIVE DATE"). The Company's commercially reasonable efforts will include, but not be limited to, promptly responding to all comments received from the staff of the SEC. If the Company receives notification from the SEC that the Registration Statement will receive no action or review from the SEC, then the Company will use its best efforts to cause the Registration Statement to be effective within five (5) business days after such SEC notification. Once the Registration Statement is declared effective by the SEC, the Company will use its commercially reasonable efforts to cause the Registration Statement to remain effective throughout the Registration Period, subject to the rights of the Company under Section 1.14 hereof. 1.3 Limitations on Mandatory Registration. The Company shall not be required to effect a registration pursuant to Sections 1.1 or 1.2 hereof: (a) to the extent excepted or not required by Section 1.6(c) hereof; or (b) after the Company has effected a registration of Registrable Securities pursuant to Sections 1.1 and 1.2, and such registration has been declared or ordered effective; or (c) if the Company shall furnish to holders within twenty (20) days prior to the Required Effective Date, a certificate signed by the Company's Chief Executive Officer or Chairman of the Board stating that in the good faith judgment of the board of directors of the Company, it would be detrimental to the Company and its stockholders for such registration to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than 90 days after the Required Effective Date, provided that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period, and provided further that the Company shall not register any other of its shares of Common Stock during such 90 day period. 3 5 1.4 Company Voluntary Registration/Piggyback Rights. If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its capital stock under the Act in connection with the public offering of such securities (other than a registration relating solely to the sale of securities to participants in a Company stock or option or employee benefit plan, a registration relating to a corporate reorganization (including securities issued by the Company in an acquisition transaction) or a transaction under Rule 145 of the Act, a registration on any form (including Form S-4 and Form S-8) that does not include substantially the same information as would be required to be included in a Registration Statement covering the sale of the Registrable Securities, or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered, ), then the Company shall, at such time, promptly give each Holder written notice of such registration. Upon the written request of each Holder given to the Company within fifteen (15) days after receipt from the Company of notice of such pending registration, the Company shall, subject to the provisions of Sections 1.3(c) and 1.14, use its best efforts to cause a Registration Statement to become effective, which includes all of the Registrable Securities that each such Holder has requested to be registered. If the registration for which the Company gives notice is a public offering involving an underwriting, the Company will so advise the Holders as part of the above-described written notice. In that event, if the managing underwriter(s) of the public offering impose a limitation on the number of shares of Common Stock that may be included in the Registration Statement because, in such underwriter(s)' judgment, such limitation would be necessary to effect an orderly public distribution, then the Company will be obligated to include only such limited portion, if any, of the Registrable Securities with respect to which such Holders have requested inclusion hereunder. Any exclusion of Registrable Securities will be made pro rata among all holders of the Company's securities seeking to include shares of Common Stock in proportion to the number of shares of Common Stock sought to be included by those holders. However, the Company will not exclude any Registrable Securities unless the Company has first excluded all outstanding securities the holders of which are not entitled by right to inclusion of securities in such Registration Statement or are not entitled pro rata inclusion with the Registrable Securities. No Holder may participate in any distribution of Common Stock under this Section 1.4 unless such Holder (i) agrees to sell such Holder's Registrable Securities on the basis provided in any underwriting arrangements or other plan of distribution approved by the Company in its sole discretion, (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements or other plan of distribution, and (iii) agrees to pay its pro rata share of all underwriting discounts and commissions and other fees and expenses of investment bankers and any manager or managers of such underwriting, and legal expenses of the underwriter, applicable with respect to its Registrable Securities, in each case to the extent not payable by the Company under the terms of this Agreement. 4 6 1.5 Mandatory Form S-3 Registration Right Preserved. No right to registration of Registrable Securities under Section 1.4 limits in any manner the registration required under Section 1.1 above. The obligations of the Company under Section 1.4 expire upon the earlier of (i) the effectiveness of the Registration Statement filed pursuant to Section 1.1 above, (ii) after the Company has afforded the opportunity for the Holders to exercise registration rights under Section 1.4 for one registration (provided however that any Holder that has had any Registrable Securities excluded from any Registration Statement in accordance with Section 1.4 may include in any additional Registration Statement filed by the Company the Registrable Securities so excluded), or (ii) upon the end of the Registration Period. 1.6 Obligations of the Company. Whenever required under this Section 1 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible in connection therewith: (a) prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement; (b) furnish to the Holders (i) a draft copy of the Registration Statement, and (ii) such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them; (c) use best efforts to register and qualify the securities covered by such Registration Statement under such other securities or Blue Sky laws of such jurisdictions in the United States as shall be reasonably requested by the Holders; provided however that notwithstanding any contrary provision hereof, the Company is not required, in connection with such obligations, to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) subject itself to general taxation in any such jurisdiction, (iii) file a general consent to service of process in any such jurisdiction, (iv) provide any undertakings that cause material expense or burden to the Company, or (v) make any change in its certificate of incorporation or bylaws, which in each case the board of directors of the Company determines to be contrary to the best interests of the Company and its stockholders; (d) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering, subject to the other provisions hereof; (e) notify each Holder of Registrable Securities covered by such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Act, of (i) the issuance of any stop order by the SEC in respect of such 5 7 Registration Statement, or (ii) to the extent of the actual knowledge of the Company, the happening of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (f) cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed; and (g) provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration. 1.7 Information from Holder. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 with respect to the Registrable Securities of any Holder that such Holder shall furnish to the Company such information regarding such Holder, the Registrable Securities held by such Holder, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of the Registrable Securities of such Holder. 1.8 Expenses of Registration. All expenses incurred in connection with a registration hereunder (other than underwriting discounts and commissions and the fees and disbursements of legal counsel and advisors for the Holders), including (without limitation) all registration, filing and qualification fees (including any Blue Sky fees), printers' and accounting fees, fees and disbursements of counsel for the Company, shall be borne by the Company, provided however that the Company will pay up to a total of $15,000 in legal fees for a single legal counsel for the Holders in connection with the mandatory registration provided by Section 1.1 hereof. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 1.4 if the registration request is subsequently withdrawn at the request of the Holders (in which case all participating Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be requested in the withdrawn registration), provided however that if such withdrawal is based on a material adverse change in the condition, business or prospects of the Company from that known to the Holders at the time of their request and such Holders have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 1.4. 6 8 1.9 Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 1. 1.10 Indemnification. In the event any Registrable Securities are included in a Registration Statement under this Section 1: (a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, the partners or officers, directors and stockholders of each Holder, legal counsel, investment advisors and accountants for each Holder, any underwriter (as defined in the Act) for such Holder and each person, if any, who controls such Holder or underwriter, within the meaning of the Act or the 1934 Act, against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act or any state securities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such Registration Statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the Act, the 1934 Act or any state securities laws; and the Company will reimburse each such Holder, partner, officer, director, stockholder, counsel, accountant, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the indemnity agreement contained in this subsection 1.10(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any such Holder, underwriter or controlling person; provided further, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Holder or underwriter, or any person controlling such Holder or underwriter, from whom the person asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Holder or underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the 7 9 shares to such person, and if the prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability. (b) To the extent permitted by law, each selling Holder, on a several and not joint basis, will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, each person, if any, who controls the Company within the meaning of the Act, legal counsel and accountants for the Company, any underwriter, any other Holder selling securities in such Registration Statement and any controlling person of any such underwriter or other Holder, against any losses, claims, damages or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Act, the 1934 Act or any state securities laws, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any person intended to be indemnified pursuant to this subsection 1.10(b) for any legal or other expenses reasonably incurred by such person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this subsection 1.10(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder (which consent shall not be unreasonably withheld), provided that in no event shall any indemnity under this subsection 1.10(b) exceed the net proceeds from the offering received by such Holder. (c) Promptly after receipt by an indemnified party under this Section 1.10 of actual knowledge of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 1.10, deliver to the indemnifying party a written notice of the commencement thereof. The indemnifying party shall promptly assume the defense of the indemnified party with counsel reasonably satisfactory to the indemnified party, and the fees and expenses of such counsel shall be at the sole cost and expense of the indemnifying party. The indemnified party will cooperate with the indemnifying party in the defense of any action, proceeding, or investigation for which the indemnified party assumes the defense. Notwithstanding the foregoing, the indemnified party shall have the right to employ separate counsel in any such action, proceeding, or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed promptly to assume the defense of such action, proceeding, or investigation and employ counsel reasonably satisfactory to the indemnified party, or (iii) in the reasonable judgment of the indemnified party there may be one or more defenses available to the indemnified party which are not available to the indemnifying party with respect to such action, claim, or proceeding due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such 8 10 proceeding, in which case the indemnifying party shall not have the right to assume the defense of such action, proceeding, or investigation on behalf of the indemnified party. The indemnifying party shall not be liable for the settlement by the indemnified party of any action, proceeding, or investigation effected without its consent, which consent shall not be unreasonably withheld. The indemnifying party shall not enter into any settlement in any action, suit, or proceeding to which the indemnified party is a party, unless such settlement includes a general release of the indemnified party with no payment by the indemnified party of consideration. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 1.10 to the extent of such prejudice, but the omission to so deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 1.10. (d) If the indemnification provided for in this Section 1.10 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to herein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of and the relative benefits received by the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations, provided that no person guilty of fraud shall be entitled to contribution. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. The relative benefits received by the indemnifying party and the indemnified party shall be determined by reference to the net proceeds and underwriting discounts and commissions from the offering received by each such party. In no event shall any contribution under this subsection 1.10(d) exceed the net proceeds from the offering received by such Holder, less any amounts paid under subsection 1.10(b). (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) The obligations of the Company and Holders under this Section 1.10 shall survive the completion of any offering of Registrable Securities in a Registration Statement under this Section 1, and otherwise. 9 11 1.11 Reports Under Securities Exchange Act of 1934. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to exercise its best efforts at all times to: (a) make and keep public information available, as those terms are understood and defined in SEC Rule 144; or (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and (c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144, the Act and the 1934 Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to such form. 1.12 Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities pursuant to this Section 1 may be assigned (but only with all related rights and obligations) by a Holder to a transferee or assignee of such securities that (i) is a subsidiary, affiliate, parent, partner, limited partner, retired partner or stockholder of a Holder, (ii) is a Holder's immediate family member (spouse or child) or trust for the benefit of an individual Holder, or (iii) after such assignment or transfer, holds at least 20,000 shares of the Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations and other recapitalizations), provided that: (a) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned, and provided further that the Company shall have no obligation to any transferee prior to receiving such notification of transfer; (b) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Agreement and the Purchase Agreement of Holder, including without limitation the provisions of Section 1.13 below; and (c) such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Act and the Purchase Agreement of Holder. 1.13 "Market Stand-Off" Agreements. Notwithstanding any other provision of this Agreement: 10 12 (a) Each Holder agrees that Holder will not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise transfer or dispose of any Registrable Securities for a period of 180 days from the Closing Date, provided however that a Holder may distribute Registrable Securities to the constituent partners of such Holder on a pro rata basis during such period if: (i) the Company is, within a reasonable time after such distribution, furnished with written notice of the name and address of such distributee and the securities with respect to which such registration rights are being distributed, and provided further that the Company shall have no obligation to any distributee prior to receiving such notification; (ii) such distributee agrees in writing to be bound by and subject to the terms and conditions and covenants of this Agreement and the Purchase Agreement of such Holder, including without limitation the provisions of Section 1.14 below; and (iii) such distribution shall be effective only if immediately following such event the further disposition of such securities by the distributee is restricted under the Act and the Purchase Agreement of such Holder; and provided further that the foregoing shall not limit or affect any of the representations or warranties of the Holder under the Purchase Agreement of such Holder; and (b) Each Holder further agrees that, upon request of the Company's or the underwriters managing an underwritten offering of any of the Company's securities, Holder will not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise transfer or dispose of any Registrable Securities without the prior written consent of the Company or such underwriters, as the case may be, for such period of time not to exceed 180 days following the effective date of such Registration Statement as may be requested by the underwriters, provided that all officers and directors and greater than five (5%) stockholders of the Company enter into similar agreements. 1.14 Suspension of Registration. (a) The Company will notify each Holder who holds Registrable Securities being sold pursuant to a Registration Statement of the happening of any event of which the Company has knowledge as a result of which any prospectus included in the Registration Statement as then in effect includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company will make such notification as promptly as practicable after the Company becomes aware of the event, will promptly (but in no event more than fifteen (15) business days thereafter) prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and will deliver a number of copies of such supplement or amendment to each Holder as such Holder may reasonably request. (b) Notwithstanding any provision to the contrary contained in this Agreement, if in the good faith judgment of the Company resales of Registrable Securities made pursuant to the Registration Statement might require disclosure of material information that (i) might interfere with or affect any financing, acquisition, or other significant transaction 11 13 being contemplated by the Company, whether or not a final determination has been made to undertake such transaction, or (ii) the Company has a bona fide business purpose for preserving as confidential, and, with respect to each of the foregoing that the Company is not otherwise required by applicable securities laws or regulations to disclose, the Company will have the right to delay the effectiveness of the Registration Statement or suspend the use of the Registration Statement for a period of not more than 30 consecutive days and for no more than 90 days in the aggregate during any twelve (12) month period; provided however such 30 day period may upon notice to the Holders be extended for up to an additional 30 days if such additional time is reasonably necessary to complete financial statements or reports or other disclosure materials reasonably necessary to be disclosed in the Registration Statement. (c) Subject to the Company's rights under this Section 1.14, the Company will use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement and, if such an order is issued, will use its commercially reasonable efforts to obtain the withdrawal of such order at the earliest possible time and to notify each Holder that holds Registrable Securities being sold of the issuance of such order and the resolution thereof. If the use of the Registration Statement is suspended by the Company, the Company will promptly give notice of the suspension to all Holders whose securities are covered by the Registration Statement, and will promptly notify each such Holder as soon as the use of the Registration Statement may be resumed. 2. MISCELLANEOUS 2.1 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 Francisco County 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 Francisco County, for all purposes of this Agreement or any dispute or controversy hereunder. 2.2 Successors and Assigns. Subject to Section 1.12 hereof, the Holder 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, which may be withheld in its sole discretion. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, stockholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. Without limiting the generality of the foregoing, and notwithstanding anything in Section 1.3(b) to the contrary, each successor to the Company shall be bound hereunder to register any 12 14 Registrable Securities issued by such successors upon the conversion or exchange of other Registrable Securities in connection with a business combination or reorganization in which such successor is involved, even if the predecessor Registrable Securities were registered pursuant to Section 1.1. and 1.2 and the applicable registration statement has been declared or ordered effective. 2.3 Entire Agreement. This Agreement and the Purchase Agreement constitute 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. 2.4 Waiver; Remedies. Any failure to enforce or delay in enforcing any of rights or obligations for the benefit of a party shall not be treated as a waiver thereof. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law. 2.5 Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder ("Notices") shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, (c) by United States first class registered or certified mail return receipt requested, or (d) by telefacsimile, using equipment that provides written confirmation of receipt, addressed to the other party at the address or facsimile number for such party provided herein; and the date of notice shall be the earlier of (i) actual receipt of notice by any permitted means, or (ii) three (3) business days following dispatch by overnight delivery service or the United States Mail; provided however any notice delivered by telefacsimile shall be effective only if the facsimile is legible and if a confirming copy is sent by any other permitted means hereunder within ten (10) days after transmission. All Notices shall be addressed: (x) if to the Holder, at the Holder's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as the Holder 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 the Holder for such purpose, with a copy to: Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, Attention: Stafford Matthews, Esq. 2.6 Counterparts. This Agreement may be executed in one 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. 13 15 2.7 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. 2.8 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. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation. Except as otherwise indicated, all references in this Agreement to "Sections" are intended to refer to Sections of this Agreement. 2.9 Attorneys' 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. 2.10 Expenses. Each of the parties shall bear all of its own costs and expenses incurred in connection with the negotiation of this Agreement, including legal and accounting fees incurred in connection therewith. 14 16 IN WITNESS WHEREOF, the parties hereto have entered into and executed this Registration Rights Agreement as of the date first above written. RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ Gilbert Figueroa Date: December 8, 2000 -------------------------------- Gilbert Figueroa, President 17500 Cartwright Road Irvine, California 92614-5846 Attn: President Fax: (949) 250-8187 HOLDER: ASTORIA CAPITAL PARTNERS, L.P. By: Astoria Capital Management, Inc., Its General Partner By: /s/ Richard W. Koe Date: December 5, 2000 -------------------------------- Richard Koe, President 6600 92nd Avenue S.W. Suite 370 Portland Oregon 97223 Fax: (503) 244-3801 15 17 HOLDER: By: /s/ Tamara G. Shelini Date: December 11, 2000 ------------------------------------- for Solomon Smith Barney as Custodian Name, Address and Fax Number: Harrison H. Augur, Keogh MP 100 N. Tryon Street, Suite 3300 Charlotte, NC 28202 (704) 331-2240 HOLDER: By: /s/ Robert D. Van Roijen Date: December 6, 2000 ------------------------------------- Name, Address and Fax Number: Robert D. Van Roijen 450 North Orlando Avenue, Suite 110 Winter Park, FL 32729 (407) 740-0721 16 EX-23.1 7 a70482aex23-1.txt EXHIBIT 23.1 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in Registration Statements No. 333-50996, 333-33672, 333-64027, 333-38449, 33-65538, 33-81008, 33-46166, and 33-32677 of Raining Data Corporation (formerly Omnis Technology Corporation) on Form S-8 of our report dated June 7, 2000, except for Note 5, as to which the date is July 11, 2000, relating to the consolidated financial statements of Pick Systems, Inc. for the fiscal years ended February 29, 2000 and February 28, 1999 appearing in this current report on Form 8-K/A dated December 1, 2000 and filed June 21, 2001. /s/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE Costa Mesa, California June 21, 2001 EX-23.2 8 a70482aex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 CONSENT OF BDO SPENCER STEWART (JOHANNESBURG) INCORPORATED We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (File Nos. 333-50996, 333-33672, 333-64027, 333-38449, 33-65538, 33-81008, 33-46166, and 33-32677) of Raining Data Corporation (fka Omnis Technology Corporation) of our report dated March 29, 2000 relating to the financial statements of Pick Systems Africa (Proprietary) Limited, which appear in this Report on Form 8-K. /s/ BDO SPENCER STEWART (JHB) INC. BDO SPENCER STEWART (JOHANNESBURG) INCORPORATED Johannesburg April 30, 2001 EX-23.3 9 a70482aex23-3.txt EXHIBIT 23.3 1 EXHIBIT 23.3 CONSENT OF MAZARS NEVILLE RUSSELL We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (File Nos. 333-50996, 333-33672, 333-64027, 333-38449, 33-65538, 33-81008, 33-46166, and 33-32677) of Raining Data Corporation (fka Omnis Technology Corporation) of our report dated September 19, 2000 relating to the financial statements of Pick Systems Limited, which appear in this Report on Form 8-K. /s/ MAZARS NEVILLE RUSSELL MAZARS NEVILLE RUSSELL Chartered Accountants Milton Keynes United Kingdom 5 June 2001 -----END PRIVACY-ENHANCED MESSAGE-----