-----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, BcNNua2TOJnIBWIzGBkRIMSIyIC7oZcLmSEWpD1Es1R0I2xCXScd13h7s8xhdg0n r+PfC56oIshKQzMleeh1cg== /in/edgar/work/0000950005-00-001040/0000950005-00-001040.txt : 20001025 0000950005-00-001040.hdr.sgml : 20001025 ACCESSION NUMBER: 0000950005-00-001040 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20001020 ITEM INFORMATION: FILED AS OF DATE: 20001024 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNIS TECHNOLOGY CORP CENTRAL INDEX KEY: 0000820738 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 943046892 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-16449 FILM NUMBER: 745027 BUSINESS ADDRESS: STREET 1: 981 INDUSTRIAL WAY STREET 2: BUILDING B CITY: SAN CARLOS STATE: CA ZIP: 94070-4117 BUSINESS PHONE: (650)632-7100 MAIL ADDRESS: STREET 1: 981 INDUSTRIAL WAY, BUILDING B CITY: SAN CARLOS STATE: CA ZIP: 94070 FORMER COMPANY: FORMER CONFORMED NAME: BLYTH HOLDINGS INC DATE OF NAME CHANGE: 19920703 8-K 1 0001.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: October 24, 2000 (Date of earliest event reported: August 2, 2000) OMNIS TECHNOLOGY CORPORATION (Exact name of registrant as specified in its charter) Delaware 94-3046892 (State or other jurisdiction of (IRS Employer Identification No.) incorporation) 0-16449 (Commission File Number) 981 Industrial Way, Building B, San Carlos, California 94070-4117 (Address of Principal Executive Offices) (Zip Code) (650) 632-7100 (Registrant's telephone number, including area code) n/a (Former name or former address, if changed since last report) 1 Item 5. Other Events. (a) On August 14, 2000, James W. Dorst resigned as a director of the Company. In connection with his resignation, the Board of Directors of the Company (the "Board") fully accelerated the vesting of Mr. Dorst's options to purchase common stock granted on November 23, 1999 and extended the right to exercise the options following termination of his directorship until March 31, 2001. On October 16, 2000, James Dorst also resigned as Chief Financial Officer and Chief Operating Officer of the Company. A successor Chief Finanical Officer and Chief Operating Officer has not been appointed at this time. (b) On August 14, 2000, the Board appointed Bryan Sparks as a Class III director of the Company to fill the vacancy on the Board created by Mr. Dorst's resignation for a term expiring at the 2000 Annual Meeting of Stockholders of the Company. Also on August 14, 2000, director Sparks was granted an option to purchase 96,825 shares of common stock at an exercise price of $6.80 per share. A copy of the stock option agreement entered into between the Company and director Sparks is filed herewith as Exhibit 10.1. (c) On September 22, 2000, director Bryce J. Burns was elected Chairman of the Board of Directors of the Company. The former Chairman, Philip Barrett, remains a director of the Company. The Company issued to director Burns an amended and restated option agreement dated as of February 14, 2000 in order to correct a mutual mistake in the original option agreement granted on February 14, 2000. The original option agreement erroneously stated the option exercise price at $12.25 per share while the option grant by the Board set the exercise price at $10.42 per share. The option agreement also was amended to conform certain other provisions to the status of Mr. Burns as a director. In addition, on September 22, 2000, the Board granted director Burns an option to purchase 32,000 shares of common stock at an exercise price of $5.95 per share. Copies of the amended stock option agreement and new stock option agreement entered into between the Company and director Burns are filed herewith as Exhibits 10.2 and 10.3. (d) On August 2, 2000, by action of the Board of Directors of the Company, the Company terminated its 1994 Employee Stock Purchase Plan (the "Plan"). Employees of the Company were notified in writing of the Plan termination on September 19, 2000 in accordance with the terms of the Plan. (e) On September 28, 2000, the Company borrowed $250,000 from The Philip and Debra Barrett Charitable Remainder Trust (the "Trust"). Philip Barrett, a director of the Company, is the trustee and a beneficiary of the Trust. The Company issued an unsecured promissory note to the Trust in connection with the loan (the "Barrett Note"). The Barrett Note is due and payable two years from the date of issuance and bears interest at 10% per annum. A copy of the Barrett Note is filed herewith as Exhibit 10.4; and the foregoing is only a summary of and is subject to all of the terms and conditions of such document. (f) On August 23, 2000, the Company borrowed an aggregate of $750,000 from three lenders (the "Lenders") pursuant to the terms of a Note Purchase Agreement. The Company issued three unsecured promissory notes to the Lenders in connection therewith (the "Notes"). The Notes bear interest at 4% per annum and shall be automatically converted into shares of common stock of the Company on the second anniversary of the date of issuance thereof at a conversion price equal to $6.17 per share. The Notes are also convertible at any time at the option of the holders thereof at the same conversion price per share. A copy of the form of Note Purchase Agreement and Note is filed herewith as Exhibit 10.5; and the foregoing is only a summary of and is subject to all of the terms and conditions of such documents. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. EXHIBIT NUMBER DESCRIPTION - ------ ----------- 10.1 Nonincentive Stock Option Agreement between the Company and Bryan Sparks dated as of August 14, 2000. 2 10.2 Amended and Restated Nonincentive Stock Option Agreement between the Company and Bryce J. Burns dated as of February 14, 2000. 10.3 Nonincentive Stock Option Agreement between the Company and Bryce J. Burns dated as of September 22, 2000. 10.4 Form of Promissory Note dated as of September 28, 2000, issued by the Company to The Philip and Debra Barrett Charitable Remainder Trust. 10.5 Form of Note Purchase Agreement and Promissory Note dated as of August 23, 2000, issued by the Company to three lenders. 3 SIGNATURES 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. OMNIS TECHNOLOGY CORPORATION By: /s/ ---------------------------------- Bryce J. Burns Chairman of the Board of Directors Date: October 24, 2000 4 EX-10.1 2 0002.txt NONINCENTIVE STOCK OPTION AGREEMENT Exhibit 10.1 OMNIS TECHNOLOGY CORPORATION NONINCENTIVE STOCK OPTION AGREEMENT This Nonincentive Stock Option Agreement ("Agreement") is made and entered into as of August 14, 2000 ("Grant Date") by and between Omnis Technology Corporation, a Delaware corporation (the "Company"), and BRYAN SPARKS ("Optionee"). W I T N E S S E T H: A. The Board of Directors of the Company ("Board") has adopted the Omnis Technology Corporation 1999 Stock Option Plan to create additional incentives for certain valued employees, directors, consultants and advisors of the Company or its parent or subsidiary and to promote the financial success and progress of the Company and such parents and subsidiaries. For purposes hereof the "Plan" and all section references therein shall be defined as said 1999 Stock Option Plan as amended or superseded during the term of this Agreement. B. Optionee is a director of the Company and this Nonincentive Stock Option Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the grant by the Company to Optionee of a nonincentive stock option. NOW, THEREFORE, it is agreed as follows: 1. Grant of Option. Subject to and upon the terms, conditions and restrictions set forth in this Agreement and the Plan, the Company hereby grants to Optionee as of the Grant Date a nonincentive stock option ("Option") to purchase up to Ninety Six Thousand Eight Hundred Twenty Five shares (96,825) ("Option Shares") of the common stock of the Company during the Term hereof (as defined in Section 3 hereof) at an Option Price of Six Dollars Eighty Cents ($6.80) per share. For these purposes "Option Shares" also shall include such stock or other securities as defined by the Plan. 2. Right to Exercise; Vesting. a. Subject to the expiration or earlier termination of the Term of the Option and to Section 3(b) hereof, Optionee shall have the right to exercise the Option in accordance with the following three (3) year vesting schedule: (i) Optionee shall have no right to exercise any part of the Option at any time prior to the expiration of one (1) year from the Grant Date; (ii) The Option shall become exercisable with respect to one-third (1/3d) of the Option Shares upon the expiration of one (1) year from the Grant Date; and (iii) The Option thereafter shall become exercisable with respect to an additional one-thirty-sixth (1/36th) of the Option Shares on the last day of each month that commences following the Grant Date. b. Exercisable installments may be exercised by Optionee in whole or in part and to the extent not exercised shall accumulate and be exercisable as provided. The Company shall not be required to issue 5 fractional shares at any time; and any fractional shares remaining in the Option following any exercise thereof shall be rounded down to the next nearest whole number of Shares. 3. Option Term. a. Subject to earlier termination as provided for in the Plan, the specified term of the Option ("Term") shall be the period commencing as of the Grant Date and ending on the expiration of ten (10) years from the Grant Date. Upon the expiration of the Term or earlier termination of the Option as provided for in the Plan, the Option shall cease to be exercisable and shall be of no further force or effect. b. In addition to other events of termination as defined in the Plan, if Optionee voluntarily resigns as a director of the Company on or prior to July 31, 2003, then this Option also shall terminate and cease to be exercisable upon the earlier of (i) the expiration of sixty (60) days from the date of such voluntary resignation or (ii) the expiration date of the Term. No additional right to exercise with respect to any Option Shares shall vest from and after the date of such voluntary resignation. 4. Non-Transferable. The Option shall not be transferable or assignable by Optionee other than by will or the laws of descent and distribution, and the Option may be exercised during the lifetime of Optionee solely by Optionee. Subject to the foregoing, all transfers or assignments or attempted transfers or assignments of the Option or this Agreement shall be void ab initio. 5. Plan; Controlling Terms. a. The Option granted hereunder and this Agreement shall be governed by and subject to each and all of the terms and provisions of the Plan, which is hereby incorporated by reference in its entirety. All capitalized or other terms not defined herein shall have the same meaning as in the Plan. In the event of any conflict between the Plan and this Agreement, the Plan shall control. Optionee acknowledges receipt of a copy of the Plan and the opportunity to review the Plan and to consult with his or her legal advisors concerning the Plan and this Agreement. b. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE PLAN CONTAINS IMPORTANT TERMS AND PROVISIONS THAT WILL APPLY TO AND CONTROL THE OPTION AND THIS AGREEMENT. THOSE TERMS INCLUDE WITHOUT LIMITATION IMPORTANT CONDITIONS AND LIMITATIONS ON THE RIGHT OF OPTIONEE TO EXERCISE THE OPTION; IMPORTANT RESTRICTIONS ON THE RIGHT OF OPTIONEE TO TRANSFER THE OPTION OR THE OPTION SHARES RECEIVED UPON EXERCISE OF THE OPTION; EARLY TERMINATION OF THE OPTION FOLLOWING THE OCCURRENCE OF CERTAIN EVENTS, INCLUDING TERMINATION OF THE DIRECTORSHIP OF OPTIONEE; PROCEDURES FOR EXERCISING THE OPTION; TAX WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT. 6. Tax Status of Option. Set forth below is a brief summary as of the date of this Agreement of some of the federal tax consequences of exercise of the Option and disposition of the Option Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE COMPANY SHALL HAVE NO OBLIGATION TO NOTIFY GRANTEE OF ANY SUCH CHANGES. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE OPTION SHARES. WITHOUT LIMITING THE FOREGOING, THIS SUMMARY DOES NOT DISCUSS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION AND THE DISPOSITION OF THE SHARES UNDER THE LAWS OF THE UNITED KINGDOM OR ANY TAX CONSEQUENCES, IF ANY, TO OPTIONEE. a. The Option is intended to be a nonincentive stock option. Optionee should consult with his or her own tax advisors regarding the tax effects of the Option and other tax consequences of the Option under applicable law, including but not limited to holding period requirements. b. Optionee hereby acknowledges that the rules and requirements of Section 83 of the Code, including without limitation the election available under Section 83(b) thereof, may be applicable to the receipt of Option Shares by Optionee pursuant to this Agreement and the Plan. Optionee acknowledges that the exercise of the 6 Option and the filing or failure to file an election under Code Section 83(b) in timely manner may result in adverse tax consequences to Optionee. c. On exercise of a nonincentive stock option, the Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value (as defined in the Plan) of the Option Shares on the date of exercise over the Option Price. The Company may be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Option Shares if such withholding amounts are not delivered at the time of exercise. d. If Option Shares are held for more than one year, any gain realized on disposition of the Option Shares will be treated as long-term capital gain and will be subject to tax as determined for federal income tax purposes. 7. Acceleration of Exercise Right In Certain Events. a. Acceleration Events. Notwithstanding any other right to exercise the Option, the Option shall become fully exercisable during the fifteen (15) day period ("Accelerated Exercise Period") immediately prior to the scheduled consummation of: (i) The sale or other transfer of more than Fifty Percent (50%) of the capital stock of the Company in one or more related transactions for material consideration to any person or entity or group of persons or entities not previously shareholders of the Company and not owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; or (ii) The sale or other transfer of all or substantially all of the assets of the Company in one or more related transactions not in the ordinary course of the business of the Company to unrelated third parties, whether by sale, exchange, merger, consolidation, reorganization, dissolution or liquidation (collectively "Acceleration Events"); other than (1) any public offering of capital stock of the Company in a Public Market (as defined in the Plan); (2) any transaction in which the Company is a surviving parent of the transferee corporation or entity or is a surviving subsidiary of a transferee parent corporation or entity owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; (3) any sale or transfer of the capital stock owned or controlled by the majority shareholder or shareholders of the Company to trusts or comparable entities for the primary benefit of such shareholders or their family members or to the estate, heirs or devisees of any such shareholder in the event of his or her death; or (4) any transaction in which the Company reincorporates in another jurisdiction or engages in other internal reorganization or changes in corporate structure without the receipt of consideration; none of which shall be Acceleration Events hereunder. b. Substitution or Assumption of Option. Notwithstanding any other provision hereof, no accelerated exercise of the Option shall be permitted if the terms of the Acceleration Event provide, as a condition of the consummation of such transaction, that the Option (or class of outstanding options of which the Option is a part) shall either be assumed by a successor corporation (or parent thereof) or be replaced with a comparable substitute option to purchase shares of capital stock of a successor corporation (or parent thereof); and the Option may be assumed or replaced pursuant to such transaction. Determination of comparability in the case of any substitute option shall be made by the Board of Directors of the Company and shall be final, binding and conclusive on Optionee. Optionee agrees to execute and deliver such documents as reasonably required to effect such assumption or substitution hereunder. 7 c. Conditional Exercise; Termination. Any permitted exercise of the Option during the Accelerated Exercise Period hereunder shall be conditioned upon the consummation of the Acceleration Event and shall be effective only immediately prior to such consummation, provided that Optionee may indicate in writing that such exercise is unconditional with respect to all or part of the Option then exercisable without regard to the acceleration provisions of this Section. Upon consummation of the Acceleration Event, the Option shall terminate and cease to be exercisable, unless assumed by the successor corporation or parent thereof. In the event such Acceleration Event is not consummated, the Option shall revert to being exercisable in accordance with the vesting schedule. d. Exercise Period. In the event the expiration or earlier termination of the Term of the Option shall occur prior to the expiration of the Accelerated Exercise Period provided in this Section, then the Accelerated Exercise Period shall be shortened to said expiration or earlier termination of the Term. 8. Limitations on Share Transfer; Mandatory Notice of Disposition. Optionee shall transfer or dispose of the Option Shares only in accordance with the provisions of this Agreement and the Plan. Without limiting the foregoing, mandatory notice of disposition of any Option Shares must be made to the Company as provided in the Plan and such disposition may be subject to tax withholding or payments by Optionee. 9. Securities Laws; Restrictions on Grant or Issuance. THE RESTRICTIONS ON THE TRANSFER OF THE OPTION OR THE OPTION SHARES SHALL BE IN ADDITION TO ANY OTHER LIMITATIONS ON TRANSFER OR EXERCISE OF THE OPTION OR ISSUANCE OR TRANSFER OF THE OPTION SHARES IMPOSED BY APPLICABLE FEDERAL AND STATE SECURITIES LAWS. THE GRANT OF THE OPTION AND THE EXERCISE OF THE OPTION AND THE ISSUANCE OF THE OPTION SHARES UPON EXERCISE OF THE OPTION AND ANY RESALE OR OTHER TRANSFER OF SUCH OPTION SHARES BY OPTIONEE SHALL BE SUBJECT TO COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF FEDERAL OR STATE LAW WITH RESPECT TO SUCH SECURITIES. Notwithstanding any contrary provision of this Agreement: a. Optionee understands that since the Option is not transferable, and since the Option Shares have not been and may not be registered or exempt under applicable statutes, Optionee may bear the economic risk of the investment for an indefinite period of time. The Option Shares may not be sold or otherwise disposed of until such time as the Option Shares are registered under the Securities Act of 1933 ("Securities Act") or the Option Shares may be sold pursuant to an applicable exemption from the registration requirements of the Securities Act. Optionee understands that the Company has no obligation to file a registration statement under the Securities Act for the Option or the Option Shares or to otherwise assist Optionee in complying with any exemption from registration. b. Optionee represents and warrants that the Option is being acquired and the Option Shares will be acquired upon exercise for his or her own account and not with a view to or for sale in connection with any distribution of such securities. Optionee further acknowledges that any investment in the Common Stock of the Company is inherently speculative and illiquid and subject to material risks. c. As a condition to the exercise of the Option, the Company may require Optionee to satisfy any qualifications that may be necessary or appropriate in the sole judgment of the Company or its counsel to evidence compliance with any applicable law or regulation and to make any written representation or warranty with respect thereto as may be requested by the Company. 8 d. Notwithstanding any contrary provision hereof, the inability of the Company with reasonable efforts to obtain approval from any regulatory body having authority deemed by the Company to be necessary for the lawful issuance and sale of any Option Shares pursuant to the Option shall relieve the Company of any liability in respect of the non-issuance or sale of the Option Shares as to which such approval shall not have been obtained. 10. Assignment; Binding Effect. a. The Company may transfer or assign any of its rights or obligations under this Agreement or the Plan. Optionee shall have no right to transfer or assign any of the rights and obligations of Optionee under the Option or this Agreement, subject to Section 4 hereof in the case of a will or the laws of descent and distribution. b. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties hereto and the officers, directors, employees, shareholders, owners, agents, representatives, parents, subsidiaries, affiliates, successors and assigns of the Company, and the spouses, representatives, executors, administrators, heirs, devisees, agents, successors and assigns of Optionee. 11. Representations and Warranties. a. Optionee represents and warrants that he or she has read the Plan and this Agreement and has had the opportunity to consult with his or her legal advisors concerning the legal and tax effects of the Plan and this Agreement and the Option. b. Each party represents and warrants that such party has the full right, power, legal capacity and authority to enter into and execute this Agreement and to discharge all of its obligations under the terms hereof, and that such party does not have any outstanding obligation and is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. This Agreement has been duly executed and delivered by said party, and constitutes its valid and legally binding agreement and obligation and is enforceable in accordance with its terms. 12. Miscellaneous. a. This Agreement together with the Plan sets forth the entire agreement of the parties relating to the subject matter hereof, subject to the provisions of the Plan; and the Plan and this Agreement shall supersede any prior discussions, understandings and agreements concerning the grant of stock options or the issuance of option stock between the parties, provided however that this Agreement shall not supersede and shall be in addition to any separate fully executed written stock option agreement between the parties pursuant to any separate stock option grant by the Company. This Agreement may be amended by further written agreement signed by each of the parties. b. This Agreement shall be construed in accordance with and governed by the laws of the State of California without reference to the principles of conflicts of law. c. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held by the final judgment of a court of competent jurisdiction to be invalid or unlawful or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect and shall be construed to give the fullest effect to the purpose of the Plan, this Agreement, the Code and pursuant to Section 25102 of the California Corporations Code and the respective regulations and rules thereunder (as amended or superseded). 9 d. No remedy conferred by this Agreement or the Plan shall be exclusive of any other remedy, and each and all such remedies shall be cumulative. The waiver of any breach or violation of this Agreement in whole or in part shall not operate as a waiver of any subsequent breaches or violations of the same or a different kind. Any exercise or failure to exercise by a party of any rights or remedies under this Agreement shall not operate as a waiver of the right of such party to exercise the same or different rights or remedies in a subsequent event. e. Both parties agree to execute any additional documents or instruments necessary or appropriate to fully effectuate out the purposes of this Agreement and which are consistent with the Plan. f. Section headings in this Agreement are for the convenience of the parties and are not part of the agreement of the parties and shall not be used in the construction hereof. Whenever in this Agreement the context requires, references to the plural shall include the singular and the singular the plural, and each gender shall include all other genders. No provision in this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered in duplicate on its behalf by its duly authorized officer, and Optionee has also executed and delivered this Agreement in duplicate, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: _________________________________ Bryce J. Burns, Chairman OPTIONEE ______________________________________ BRYAN SPARKS 10 EX-10.2 3 0003.txt AMENDED NONINCENTIVE STOCK OPTION AGREEMENT Exhibit 10.2 OMNIS TECHNOLOGY CORPORATION AMENDED AND RESTATED NONINCENTIVE STOCK OPTION AGREEMENT This Nonincentive Stock Option Agreement ("Agreement") is made and entered into as of February 14, 2000 ("Grant Date"), by and between Omnis Technology Corporation, a Delaware corporation (the "Company"), and BRYCE J. BURNS ("Optionee"). W I T N E S S E T H: A. The Board of Directors of the Company ("Board") has adopted the Omnis Technology Corporation 1999 Stock Option Plan to create additional incentives for certain valued employees, directors, consultants and advisors of the Company or its parent or subsidiary and to promote the financial success and progress of the Company and such parents and subsidiaries. For purposes hereof the "Plan" and all section references therein shall be defined as said 1999 Stock Option Plan as amended or superseded during the term of this Agreement. B. Optionee is a director of the Company and this Nonincentive Stock Option Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the grant by the Company to Optionee of a nonincentive stock option. C. The Company issued an option to Optionee on February 14, 2000 pursuant to the terms of an option agreement dated such date (the "Prior Agreement"). The Prior Agreement, due to mutual mistake of the parties, misstated certain terms and conditions of the option grant. This Agreement corrects such prior misstatements and amends and supersedes the Prior Agreement. NOW, THEREFORE, it is agreed as follows: 1. Grant of Option. Subject to and upon the terms, conditions and restrictions set forth in this Agreement and the Plan, the Company hereby grants to Optionee as of the Grant Date a nonincentive stock option ("Option") to purchase up to Ninety Six Thousand Eight Hundred Twenty Five shares (96,825) ("Option Shares") of the common stock of the Company during the Term hereof (as defined in Section 3 hereof) at an Option Price of Ten Dollars Forty Two Cents ($10.42) per share. For these purposes "Option Shares" also shall include such stock or other securities as defined by the Plan. 2. Right to Exercise; Vesting. a. Subject to the expiration or earlier termination of the Term of the Option and to Section 3(b) hereof, Optionee shall have the right to exercise the Option in accordance with the following three (3) year vesting schedule: (i) Optionee shall have no right to exercise any part of the Option at any time prior to the expiration of one (1) year from the Grant Date; (ii) The Option shall become exercisable with respect to one-third (1/3d) of the Option Shares upon the expiration of one (1) year from the Grant Date; and 11 (iii) The Option thereafter shall become exercisable with respect to an additional one-thirty-sixth (1/36th) of the Option Shares for each month following the expiration of one (1) year from the Grant Date. b. Exercisable installments may be exercised by Optionee in whole or in part and to the extent not exercised shall accumulate and be exercisable as provided. The Company shall not be required to issue fractional shares at any time; and any fractional shares remaining in the Option following any exercise thereof shall be rounded down to the next nearest whole number of Shares. 3. Option Term. a. Subject to earlier termination as provided for in the Plan, the specified term of the Option ("Term") shall be the period commencing as of the Grant Date and ending on the expiration of ten (10) years from the Grant Date. Upon the expiration of the Term or earlier termination of the Option as provided for in the Plan or hereunder, the Option shall cease to be exercisable and shall be of no further force or effect. b. In addition to other events of termination as defined in the Plan, if Optionee voluntarily resigns as a director of the Company on or prior to January 31, 2003, then this Option also shall terminate and cease to be exercisable upon the earlier of (i) the expiration of sixty (60) days from the date of such voluntary resignation or (ii) the expiration date of the Term. No additional right to exercise with respect to any Option Shares shall vest from and after the date of such voluntary resignation. 4. Non-Transferable. The Option shall not be transferable or assignable by Optionee other than by will or the laws of descent and distribution, and the Option may be exercised during the lifetime of Optionee solely by Optionee. Subject to the foregoing, all transfers or assignments or attempted transfers or assignments of the Option or this Agreement shall be void ab initio. 5. Plan; Controlling Terms. a. The Option granted hereunder and this Agreement shall be governed by and subject to each and all of the terms and provisions of the Plan, which is hereby incorporated by reference in its entirety. All capitalized or other terms not defined herein shall have the same meaning as in the Plan. In the event of any conflict between the Plan and this Agreement, the Plan shall control. Optionee acknowledges receipt of a copy of the Plan and the opportunity to review the Plan and to consult with his or her legal advisors concerning the Plan and this Agreement. b. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE PLAN CONTAINS IMPORTANT TERMS AND PROVISIONS THAT WILL APPLY TO AND CONTROL THE OPTION AND THIS AGREEMENT. THOSE TERMS INCLUDE WITHOUT LIMITATION IMPORTANT CONDITIONS AND LIMITATIONS ON THE RIGHT OF OPTIONEE TO EXERCISE THE OPTION; IMPORTANT RESTRICTIONS ON THE RIGHT OF OPTIONEE TO TRANSFER THE OPTION OR THE OPTION SHARES RECEIVED UPON EXERCISE OF THE OPTION; EARLY TERMINATION OF THE OPTION FOLLOWING THE OCCURRENCE OF CERTAIN EVENTS, INCLUDING TERMINATION OF THE DIRECTORSHIP OF OPTIONEE PROCEDURES FOR EXERCISING THE OPTION; TAX WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT. 6. Tax Status of Option. Set forth below is a brief summary as of the date of this Agreement of some of the federal tax consequences of exercise of the Option and disposition of the Option Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE COMPANY SHALL HAVE NO OBLIGATION TO NOTIFY GRANTEE OF ANY SUCH CHANGES. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE OPTION SHARES. WITHOUT LIMITING THE FOREGOING, THIS SUMMARY DOES NOT DISCUSS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION AND THE DISPOSITION OF THE SHARES UNDER THE LAWS OF THE UNITED KINGDOM OR ANY TAX CONSEQUENCES, IF ANY, TO OPTIONEE. 12 a. The Option is intended to be a nonincentive stock option. Optionee should consult with his or her own tax advisors regarding the tax effects of the Option and other tax consequences of the Option under applicable law, including but not limited to holding period requirements. b. Optionee hereby acknowledges that the rules and requirements of Section 83 of the Code, including without limitation the election available under Section 83(b) thereof, may be applicable to the receipt of Option Shares by Optionee pursuant to this Agreement and the Plan. Optionee acknowledges that the exercise of the Option and the filing or failure to file an election under Code Section 83(b) in timely manner may result in adverse tax consequences to Optionee. c. On exercise of a nonincentive stock option, the Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value (as defined in the Plan) of the Option Shares on the date of exercise over the Option Price. The Company may be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Option Shares if such withholding amounts are not delivered at the time of exercise. d. If Option Shares are held for more than one year, any gain realized on disposition of the Option Shares will be treated as long-term capital gain and will be subject to tax as determined for federal income tax purposes. 7. Acceleration of Exercise Right In Certain Events. a. Acceleration Events. Notwithstanding any other right to exercise the Option, the Option shall become fully exercisable during the fifteen (15) day period ("Accelerated Exercise Period") immediately prior to the scheduled consummation of: (i) The sale or other transfer of more than Fifty Percent (50%) of the capital stock of the Company in one or more related transactions for material consideration to any person or entity or group of persons or entities not previously shareholders of the Company and not owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; or (ii) The sale or other transfer of all or substantially all of the assets of the Company in one or more related transactions not in the ordinary course of the business of the Company to unrelated third parties, whether by sale, exchange, merger, consolidation, reorganization, dissolution or liquidation (collectively "Acceleration Events"); other than (1) any public offering of capital stock of the Company in a Public Market (as defined in the Plan); (2) any transaction in which the Company is a surviving parent of the transferee corporation or entity or is a surviving subsidiary of a transferee parent corporation or entity owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; (3) any sale or transfer of the capital stock owned or controlled by the majority shareholder or shareholders of the Company to trusts or comparable entities for the primary benefit of such shareholders or their family members or to the estate, heirs or devisees of any such shareholder in the event of his or her death; or (4) any transaction in which the Company reincorporates in another jurisdiction or engages in other internal reorganization or changes in corporate structure without the receipt of consideration; none of which shall be Acceleration Events hereunder. 13 b. Substitution or Assumption of Option. Notwithstanding any other provision hereof, no accelerated exercise of the Option shall be permitted if the terms of the Acceleration Event provide, as a condition of the consummation of such transaction, that the Option (or class of outstanding options of which the Option is a part) shall either be assumed by a successor corporation (or parent thereof) or be replaced with a comparable substitute option to purchase shares of capital stock of a successor corporation (or parent thereof); and the Option may be assumed or replaced pursuant to such transaction. Determination of comparability in the case of any substitute option shall be made by the Board of Directors of the Company and shall be final, binding and conclusive on Optionee. Optionee agrees to execute and deliver such documents as reasonably required to effect such assumption or substitution hereunder. c. Conditional Exercise; Termination. Any permitted exercise of the Option during the Accelerated Exercise Period hereunder shall be conditioned upon the consummation of the Acceleration Event and shall be effective only immediately prior to such consummation, provided that Optionee may indicate in writing that such exercise is unconditional with respect to all or part of the Option then exercisable without regard to the acceleration provisions of this Section. Upon consummation of the Acceleration Event, the Option shall terminate and cease to be exercisable, unless assumed by the successor corporation or parent thereof. In the event such Acceleration Event is not consummated, the Option shall revert to being exercisable in accordance with the vesting schedule. d. Exercise Period. In the event the expiration or earlier termination of the Term of the Option shall occur prior to the expiration of the Accelerated Exercise Period provided in this Section, then the Accelerated Exercise Period shall be shortened to said expiration or earlier termination of the Term. 8. Limitations on Share Transfer; Mandatory Notice of Disposition. Optionee shall transfer or dispose of the Option Shares only in accordance with the provisions of this Agreement and the Plan. Without limiting the foregoing, mandatory notice of disposition of any Option Shares must be made to the Company as provided in the Plan and such disposition may be subject to tax withholding or payments by Optionee. 9. Securities Laws; Restrictions on Grant or Issuance. THE RESTRICTIONS ON THE TRANSFER OF THE OPTION OR THE OPTION SHARES SHALL BE IN ADDITION TO ANY OTHER LIMITATIONS ON TRANSFER OR EXERCISE OF THE OPTION OR ISSUANCE OR TRANSFER OF THE OPTION SHARES IMPOSED BY APPLICABLE FEDERAL AND STATE SECURITIES LAWS. THE GRANT OF THE OPTION AND THE EXERCISE OF THE OPTION AND THE ISSUANCE OF THE OPTION SHARES UPON EXERCISE OF THE OPTION AND ANY RESALE OR OTHER TRANSFER OF SUCH OPTION SHARES BY OPTIONEE SHALL BE SUBJECT TO COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF FEDERAL OR STATE LAW WITH RESPECT TO SUCH SECURITIES. Notwithstanding any contrary provision of this Agreement: a. Optionee understands that since the Option is not transferable, and since the Option Shares have not been and may not be registered or exempt under applicable statutes, Optionee may bear the economic risk of the investment for an indefinite period of time. The Option Shares may not be sold or otherwise disposed of until such time as the Option Shares are registered under the Securities Act of 1933 ("Securities Act") or the Option Shares may be sold pursuant to an applicable exemption from the registration requirements of the Securities Act. Optionee understands that the Company has no obligation to file a registration statement under the Securities Act for the Option or the Option Shares or to otherwise assist Optionee in complying with any exemption from registration. b. Optionee represents and warrants that the Option is being acquired and the Option Shares will be acquired upon exercise for his or her own account and not with a view to or for sale in connection with any 14 distribution of such securities. Optionee further acknowledges that any investment in the Common Stock of the Company is inherently speculative and illiquid and subject to material risks. c. As a condition to the exercise of the Option, the Company may require Optionee to satisfy any qualifications that may be necessary or appropriate in the sole judgment of the Company or its counsel to evidence compliance with any applicable law or regulation and to make any written representation or warranty with respect thereto as may be requested by the Company. d. Notwithstanding any contrary provision hereof, the inability of the Company with reasonable efforts to obtain approval from any regulatory body having authority deemed by the Company to be necessary for the lawful issuance and sale of any Option Shares pursuant to the Option shall relieve the Company of any liability in respect of the non-issuance or sale of the Option Shares as to which such approval shall not have been obtained. 10. Assignment; Binding Effect. a. The Company may transfer or assign any of its rights or obligations under this Agreement or the Plan. Optionee shall have no right to transfer or assign any of the rights and obligations of Optionee under the Option or this Agreement, subject to Section 4 hereof in the case of a will or the laws of descent and distribution. b. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties hereto and the officers, directors, employees, shareholders, owners, agents, representatives, parents, subsidiaries, affiliates, successors and assigns of the Company, and the spouses, representatives, executors, administrators, heirs, devisees, agents, successors and assigns of Optionee. 11. Representations and Warranties. a. Optionee represents and warrants that he or she has read the Plan and this Agreement and has had the opportunity to consult with his or her legal advisors concerning the legal and tax effects of the Plan and this Agreement and the Option. b. Each party represents and warrants that such party has the full right, power, legal capacity and authority to enter into and execute this Agreement and to discharge all of its obligations under the terms hereof, and that such party does not have any outstanding obligation and is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. This Agreement has been duly executed and delivered by said party, and constitutes its valid and legally binding agreement and obligation and is enforceable in accordance with its terms. 12. Miscellaneous. a. This Agreement together with the Plan sets forth the entire agreement of the parties relating to the subject matter hereof, subject to the provisions of the Plan; and the Plan and this Agreement shall supersede any prior discussions, understandings and agreements concerning the grant of stock options or the issuance of option stock between the parties, including, without limitation, the Prior Agreement, provided however that this Agreement shall not supersede and shall be in addition to any separate fully executed written stock option agreement between the parties pursuant to any separate stock option grant by the Company. This Agreement may be amended by further written agreement signed by each of the parties. b. This Agreement shall be construed in accordance with and governed by the laws of the State of California without reference to the principles of conflicts of law. 15 c. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held by the final judgment of a court of competent jurisdiction to be invalid or unlawful or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect and shall be construed to give the fullest effect to the purpose of the Plan, this Agreement, the Code and pursuant to Section 25102 of the California Corporations Code and the respective regulations and rules thereunder (as amended or superseded). d. No remedy conferred by this Agreement or the Plan shall be exclusive of any other remedy, and each and all such remedies shall be cumulative. The waiver of any breach or violation of this Agreement in whole or in part shall not operate as a waiver of any subsequent breaches or violations of the same or a different kind. Any exercise or failure to exercise by a party of any rights or remedies under this Agreement shall not operate as a waiver of the right of such party to exercise the same or different rights or remedies in a subsequent event. e. Both parties agree to execute any additional documents or instruments necessary or appropriate to fully effectuate out the purposes of this Agreement and which are consistent with the Plan. f. Section headings in this Agreement are for the convenience of the parties and are not part of the agreement of the parties and shall not be used in the construction hereof. Whenever in this Agreement the context requires, references to the plural shall include the singular and the singular the plural, and each gender shall include all other genders. No provision in this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered in duplicate on its behalf by its duly authorized officer, and Optionee has also executed and delivered this Agreement in duplicate, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: _________________________________ Gweyneth Gibbs, President OPTIONEE ______________________________________ 16 BRYCE J. BURNS 17 EX-10.3 4 0004.txt NONINCENTIVE STOCK OPTION AGREEMENT Exhibit 10.3 OMNIS TECHNOLOGY CORPORATION NONINCENTIVE STOCK OPTION AGREEMENT This Nonincentive Stock Option Agreement ("Agreement") is made and entered into as of September 22, 2000 ("Grant Date") by and between Omnis Technology Corporation, a Delaware corporation (the "Company"), and BRYCE J. BURNS ("Optionee"). W I T N E S S E T H: A. The Board of Directors of the Company ("Board") has adopted the Omnis Technology Corporation 1999 Stock Option Plan to create additional incentives for certain valued employees, directors, consultants and advisors of the Company or its parent or subsidiary and to promote the financial success and progress of the Company and such parents and subsidiaries. For purposes hereof the "Plan" and all section references therein shall be defined as said 1999 Stock Option Plan as amended or superseded during the term of this Agreement. B. Optionee is a director and the Chairman of the Company and this Nonincentive Stock Option Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the grant by the Company to Optionee of a nonincentive stock option. NOW, THEREFORE, it is agreed as follows: 1. Grant of Option. Subject to and upon the terms, conditions and restrictions set forth in this Agreement and the Plan, the Company hereby grants to Optionee as of the Grant Date a nonincentive stock option ("Option") to purchase up to Thirty Two Thousand (32,000) shares ("Option Shares") of the common stock of the Company during the Term hereof (as defined in Section 3 hereof) at an Option Price of Five Dollars Ninety-Five Cents ($5.95) per share. For these purposes "Option Shares" also shall include such stock or other securities as defined by the Plan. 2. Right to Exercise; Vesting. a. Subject to the expiration or earlier termination of the Term of the Option and to Section 3(b) hereof, Optionee shall have the right to exercise the Option in accordance with the following three (3) year vesting schedule: (i) Optionee shall have no right to exercise any part of the Option at any time prior to the expiration of one (1) year from the Grant Date; (ii) The Option shall become exercisable with respect to one-third (1/3rd) of the Option Shares upon the expiration of one (1) year from the Grant Date; and (iii) The Option thereafter shall become exercisable with respect to an additional one-thirty-sixth (1/36th) of the Option Shares on the last day of each month that commences following the Grant Date. b. Exercisable installments may be exercised by Optionee in whole or in part and to the extent not exercised shall accumulate and be exercisable as provided. The Company shall not be required to issue fractional shares at any time; and any fractional shares remaining in the Option following any exercise thereof shall be rounded down to the next nearest whole number of Shares. 18 3. Option Term. a. Subject to earlier termination as provided for in the Plan, the specified term of the Option ("Term") shall be the period commencing as of the Grant Date and ending on the expiration of ten (10) years from the Grant Date. Upon the expiration of the Term or earlier termination of the Option as provided for in the Plan, the Option shall cease to be exercisable and shall be of no further force or effect. b. In addition to other events of termination as defined in the Plan, if Optionee voluntarily resigns as a director of the Company on or prior to August 31, 2003, then this Option also shall terminate and cease to be exercisable upon the earlier of (i) the expiration of sixty (60) days from the date of such voluntary resignation or (ii) the expiration date of the Term. No additional right to exercise with respect to any Option Shares shall vest from and after the date of such voluntary resignation. 4. Non-Transferable. The Option shall not be transferable or assignable by Optionee other than by will or the laws of descent and distribution, and the Option may be exercised during the lifetime of Optionee solely by Optionee. Subject to the foregoing, all transfers or assignments or attempted transfers or assignments of the Option or this Agreement shall be void ab initio. 5. Plan; Controlling Terms. a. The Option granted hereunder and this Agreement shall be governed by and subject to each and all of the terms and provisions of the Plan, which is hereby incorporated by reference in its entirety. All capitalized or other terms not defined herein shall have the same meaning as in the Plan. In the event of any conflict between the Plan and this Agreement, the Plan shall control. Optionee acknowledges receipt of a copy of the Plan and the opportunity to review the Plan and to consult with his or her legal advisors concerning the Plan and this Agreement. b. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE PLAN CONTAINS IMPORTANT TERMS AND PROVISIONS THAT WILL APPLY TO AND CONTROL THE OPTION AND THIS AGREEMENT. THOSE TERMS INCLUDE WITHOUT LIMITATION IMPORTANT CONDITIONS AND LIMITATIONS ON THE RIGHT OF OPTIONEE TO EXERCISE THE OPTION; IMPORTANT RESTRICTIONS ON THE RIGHT OF OPTIONEE TO TRANSFER THE OPTION OR THE OPTION SHARES RECEIVED UPON EXERCISE OF THE OPTION; EARLY TERMINATION OF THE OPTION FOLLOWING THE OCCURRENCE OF CERTAIN EVENTS, INCLUDING TERMINATION OF THE DIRECTORSHIP OF OPTIONEE PROCEDURES FOR EXERCISING THE OPTION; TAX WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT. 6. Tax Status of Option. Set forth below is a brief summary as of the date of this Agreement of some of the federal tax consequences of exercise of the Option and disposition of the Option Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE COMPANY SHALL HAVE NO OBLIGATION TO NOTIFY GRANTEE OF ANY SUCH CHANGES. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE OPTION SHARES. WITHOUT LIMITING THE FOREGOING, THIS SUMMARY DOES NOT DISCUSS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION AND THE DISPOSITION OF THE SHARES UNDER THE LAWS OF THE UNITED KINGDOM OR ANY TAX CONSEQUENCES, IF ANY, TO OPTIONEE. a. The Option is intended to be a nonincentive stock option. Optionee should consult with his or her own tax advisors regarding the tax effects of the Option and other tax consequences of the Option under applicable law, including but not limited to holding period requirements. b. Optionee hereby acknowledges that the rules and requirements of Section 83 of the Code, including without limitation the election available under Section 83(b) thereof, may be applicable to the receipt of Option Shares by Optionee pursuant to this Agreement and the Plan. Optionee acknowledges that the exercise of the Option and the filing or failure to file an election under Code Section 83(b) in timely manner may result in adverse tax consequences to Optionee. 19 c. On exercise of a nonincentive stock option, the Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value (as defined in the Plan) of the Option Shares on the date of exercise over the Option Price. The Company may be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Option Shares if such withholding amounts are not delivered at the time of exercise. d. If Option Shares are held for more than one year, any gain realized on disposition of the Option Shares will be treated as long-term capital gain and will be subject to tax as determined for federal income tax purposes. 7. Acceleration of Exercise Right In Certain Events. a. Acceleration Events. Notwithstanding any other right to exercise the Option, the Option shall become fully exercisable during the fifteen (15) day period ("Accelerated Exercise Period") immediately prior to the scheduled consummation of: (i) The sale or other transfer of more than Fifty Percent (50%) of the capital stock of the Company in one or more related transactions for material consideration to any person or entity or group of persons or entities not previously shareholders of the Company and not owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; or (ii) The sale or other transfer of all or substantially all of the assets of the Company in one or more related transactions not in the ordinary course of the business of the Company to unrelated third parties, whether by sale, exchange, merger, consolidation, reorganization, dissolution or liquidation (collectively "Acceleration Events"); other than (1) any public offering of capital stock of the Company in a Public Market (as defined in the Plan); (2) any transaction in which the Company is a surviving parent of the transferee corporation or entity or is a surviving subsidiary of a transferee parent corporation or entity owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; (3) any sale or transfer of the capital stock owned or controlled by the majority shareholder or shareholders of the Company to trusts or comparable entities for the primary benefit of such shareholders or their family members or to the estate, heirs or devisees of any such shareholder in the event of his or her death; or (4) any transaction in which the Company reincorporates in another jurisdiction or engages in other internal reorganization or changes in corporate structure without the receipt of consideration; none of which shall be Acceleration Events hereunder. b. Substitution or Assumption of Option. Notwithstanding any other provision hereof, no accelerated exercise of the Option shall be permitted if the terms of the Acceleration Event provide, as a condition of the consummation of such transaction, that the Option (or class of outstanding options of which the Option is a part) shall either be assumed by a successor corporation (or parent thereof) or be replaced with a comparable substitute option to purchase shares of capital stock of a successor corporation (or parent thereof); and the Option may be assumed or replaced pursuant to such transaction. Determination of comparability in the case of any substitute option shall be made by the Board of Directors of the Company and shall be final, binding and conclusive on Optionee. Optionee agrees to execute and deliver such documents as reasonably required to effect such assumption or substitution hereunder. c. Conditional Exercise; Termination. Any permitted exercise of the Option during the Accelerated Exercise Period hereunder shall be conditioned upon the consummation of the Acceleration Event and 20 shall be effective only immediately prior to such consummation, provided that Optionee may indicate in writing that such exercise is unconditional with respect to all or part of the Option then exercisable without regard to the acceleration provisions of this Section. Upon consummation of the Acceleration Event, the Option shall terminate and cease to be exercisable, unless assumed by the successor corporation or parent thereof. In the event such Acceleration Event is not consummated, the Option shall revert to being exercisable in accordance with the vesting schedule. d. Exercise Period. In the event the expiration or earlier termination of the Term of the Option shall occur prior to the expiration of the Accelerated Exercise Period provided in this Section, then the Accelerated Exercise Period shall be shortened to said expiration or earlier termination of the Term. 8. Limitations on Share Transfer; Mandatory Notice of Disposition. Optionee shall transfer or dispose of the Option Shares only in accordance with the provisions of this Agreement and the Plan. Without limiting the foregoing, mandatory notice of disposition of any Option Shares must be made to the Company as provided in the Plan and such disposition may be subject to tax withholding or payments by Optionee. 9. Securities Laws; Restrictions on Grant or Issuance. THE RESTRICTIONS ON THE TRANSFER OF THE OPTION OR THE OPTION SHARES SHALL BE IN ADDITION TO ANY OTHER LIMITATIONS ON TRANSFER OR EXERCISE OF THE OPTION OR ISSUANCE OR TRANSFER OF THE OPTION SHARES IMPOSED BY APPLICABLE FEDERAL AND STATE SECURITIES LAWS. THE GRANT OF THE OPTION AND THE EXERCISE OF THE OPTION AND THE ISSUANCE OF THE OPTION SHARES UPON EXERCISE OF THE OPTION AND ANY RESALE OR OTHER TRANSFER OF SUCH OPTION SHARES BY OPTIONEE SHALL BE SUBJECT TO COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF FEDERAL OR STATE LAW WITH RESPECT TO SUCH SECURITIES. Notwithstanding any contrary provision of this Agreement: a. Optionee understands that since the Option is not transferable, and since the Option Shares have not been and may not be registered or exempt under applicable statutes, Optionee may bear the economic risk of the investment for an indefinite period of time. The Option Shares may not be sold or otherwise disposed of until such time as the Option Shares are registered under the Securities Act of 1933 ("Securities Act") or the Option Shares may be sold pursuant to an applicable exemption from the registration requirements of the Securities Act. Optionee understands that the Company has no obligation to file a registration statement under the Securities Act for the Option or the Option Shares or to otherwise assist Optionee in complying with any exemption from registration. b. Optionee represents and warrants that the Option is being acquired and the Option Shares will be acquired upon exercise for his or her own account and not with a view to or for sale in connection with any distribution of such securities. Optionee further acknowledges that any investment in the Common Stock of the Company is inherently speculative and illiquid and subject to material risks. c. As a condition to the exercise of the Option, the Company may require Optionee to satisfy any qualifications that may be necessary or appropriate in the sole judgment of the Company or its counsel to evidence compliance with any applicable law or regulation and to make any written representation or warranty with respect thereto as may be requested by the Company. d. Notwithstanding any contrary provision hereof, the inability of the Company with reasonable efforts to obtain approval from any regulatory body having authority deemed by the Company to be necessary for the lawful issuance and sale of any Option Shares pursuant to the Option shall relieve the Company of 21 any liability in respect of the non-issuance or sale of the Option Shares as to which such approval shall not have been obtained. 10. Assignment; Binding Effect. a. The Company may transfer or assign any of its rights or obligations under this Agreement or the Plan. Optionee shall have no right to transfer or assign any of the rights and obligations of Optionee under the Option or this Agreement, subject to Section 4 hereof in the case of a will or the laws of descent and distribution. b. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties hereto and the officers, directors, employees, shareholders, owners, agents, representatives, parents, subsidiaries, affiliates, successors and assigns of the Company, and the spouses, representatives, executors, administrators, heirs, devisees, agents, successors and assigns of Optionee. 11. Representations and Warranties. a. Optionee represents and warrants that he or she has read the Plan and this Agreement and has had the opportunity to consult with his or her legal advisors concerning the legal and tax effects of the Plan and this Agreement and the Option. b. Each party represents and warrants that such party has the full right, power, legal capacity and authority to enter into and execute this Agreement and to discharge all of its obligations under the terms hereof, and that such party does not have any outstanding obligation and is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. This Agreement has been duly executed and delivered by said party, and constitutes its valid and legally binding agreement and obligation and is enforceable in accordance with its terms. 12. Miscellaneous. a. This Agreement together with the Plan sets forth the entire agreement of the parties relating to the subject matter hereof, subject to the provisions of the Plan; and the Plan and this Agreement shall supersede any prior discussions, understandings and agreements concerning the grant of stock options or the issuance of option stock between the parties, provided however that this Agreement shall not supersede and shall be in addition to any separate fully executed written stock option agreement between the parties pursuant to any separate stock option grant by the Company. This Agreement may be amended by further written agreement signed by each of the parties. b. This Agreement shall be construed in accordance with and governed by the laws of the State of California without reference to the principles of conflicts of law. c. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held by the final judgment of a court of competent jurisdiction to be invalid or unlawful or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect and shall be construed to give the fullest effect to the purpose of the Plan, this Agreement, the Code and pursuant to Section 25102 of the California Corporations Code and the respective regulations and rules thereunder (as amended or superseded). d. No remedy conferred by this Agreement or the Plan shall be exclusive of any other remedy, and each and all such remedies shall be cumulative. The waiver of any breach or violation of this Agreement in whole or in part shall not operate as a waiver of any subsequent breaches or violations of the same or a different 22 kind. Any exercise or failure to exercise by a party of any rights or remedies under this Agreement shall not operate as a waiver of the right of such party to exercise the same or different rights or remedies in a subsequent event. e. Both parties agree to execute any additional documents or instruments necessary or appropriate to fully effectuate out the purposes of this Agreement and which are consistent with the Plan. f. Section headings in this Agreement are for the convenience of the parties and are not part of the agreement of the parties and shall not be used in the construction hereof. Whenever in this Agreement the context requires, references to the plural shall include the singular and the singular the plural, and each gender shall include all other genders. No provision in this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered in duplicate on its behalf by its duly authorized officer, and Optionee has also executed and delivered this Agreement in duplicate, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: _________________________________ Gwyneth Gibbs, President OPTIONEE ______________________________________ BRYCE J. BURNS 23 EX-10.4 5 0005.txt FORM OF PROMISSORY NOTE Exhibit 10.4 OMNIS TECHNOLOGY CORPORATION PROMISSORY NOTE $250,000.00 September 28, 2000 San Carlos, California 1. Principal and Interest. OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), for value received, hereby promises to pay to the order of THE PHILIP AND DEBRA BARRETT CHARITABLE REMAINDER TRUST (the "Holder") at PO Box 3730, Salem, Oregon 97302 the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) ("Principal") plus accrued interest in lawful money of the United States or as otherwise hereinafter set forth This Promissory Note (the "Note") shall bear interest at the rate of Ten Percent (10%) annum from the date of issuance of this Note. Accrued interest shall be paid in quarterly installments on each March 31, June 30, September 30 and December 31, beginning December 31, 2000. All Principal and all accrued and unpaid interest shall be due and payable in full on September 30, 2002 (the "Maturity Date") unless there is an Event of Default (as defined in Section 2 hereof) in which case such payment shall be accelerated. This Note is not secured by any assets or securities of the Company. Upon payment in full of the Principal hereof and accrued interest hereunder, this Note shall be cancelled and shall be surrendered to the Company. The Principal and interest on this Note shall be payable to the Holder hereof at the foregoing address or such other address as the Holder shall from time to time designate by written notice to the Company. 2. Events of Default.The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder: (a) The commencement of a voluntary petition in bankruptcy or the filing of a petition to have the Company declared bankrupt or insolvent or the filing of any other petition of reorganization, arrangement or similar relief by or for the Company under any applicable law regarding insolvency or relief for debtors, unless such proceeding is vacated, discharged, or stayed or bonded pending appeal within 10 days from the commencement thereof; (b) the making by the Company of a general assignment for the benefit of creditors or any similar undertaking; (c) the appointment of a receiver, trustee or similar officer for the business or property of the Company, which appointment is not vacated, discharged, or stayed or bonded pending appeal within 10 days from such appointment; or (d) the admission by the Company in writing of its inability to pay its debts generally as such debts become due; (b) The failure to make any payment of interest on the due date; (c) Any default by the Company under the terms of any existing indebtedness of the Company or other material indebtedness of the Company; or 24 (d) Any other material breach of this Note by the Company not cured in full within fifteen (10) days of written notice thereof by the Holder to the Company. 3. Representations and Warranties. THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE HOLDER AS OF THE DATE OF ISSUANCE THAT: (a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as contemplated to be conducted. (b) The Company has all requisite corporate right, power and authority to execute and deliver this Note and to perform fully its obligations hereunder. The execution and delivery of this Note and the consummation of the loan contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. (c) This Note constitutes the valid and legally binding agreement and obligations of the Company, enforceable in accordance with its terms. 4. Remedies. The Holder shall have such remedies upon occurrence of an Event of Default under this Note as provided herein or by applicable law. 5. Prepayment. Notwithstanding any contrary provision hereof, the Company shall have the right at any time and from time to time, to prepay the Principal in whole or in part plus accrued interest thereon without penalty. 25 6. Binding Effect.Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of and be binding upon each of the parties; the directors, officers, stockholders, employees, agents, successors and assigns of the Company; and the heirs, devisees, executors, administrators, representatives, successors, beneficiaries and assigns of the Holder. 7. Transfer of This Note. With respect to any proposed transfer of this Note (other than to Philip and Debra Barrett or a charitable remainder trust affiliated with them), the Holder shall give at least 10-days prior written notice to the Company. 8. Notices. All notices or other communications under this Note shall be in writing and shall be delivered prepaid (a) by personal delivery, (b) by a nationally recognized overnight courier service, or (c) by United States first class registered or certified mail return receipt requested; and the date of delivery shall be deemed to be the earlier of (i) actual receipt of notice by any permitted means, or (ii) two business days following dispatch by overnight courier service or (ii) three business days following dispatch by the United States Mail. Such notices shall be addressed to Holder at the address set forth herein or to the Company at its address as set forth on the signature page of this Note; or such other address provided by notice to the other party under the foregoing procedure. 9. Governing Law. This Note is being delivered in and shall be construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. 10. Entire Agreement. THIS NOTE CONSTITUTES THE FULL AND ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECT MATTER HEREOF. ANY PRIOR OR CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THIS NOTE ARE SUPERSEDED AND OF NO FORCE OR EFFECT. THIS NOTE MAY BE MODIFIED OR AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY BOTH OF THE PARTIES. 11. Severability. If any provision of this Note shall be judicially determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any manner be affected or impaired and shall remain in full force and effect. 26 12. Interpretation. SECTIONS AND SECTION HEADINGS CONTAINED IN THIS NOTE ARE FOR REFERENCE PURPOSES ONLY, AND SHALL NOT AFFECT IN ANY MANNER THE MEANING OF INTERPRETATION OF THIS NOTE. WHENEVER THE CONTEXT REQUIRES, REFERENCES TO THE SINGULAR SHALL INCLUDE THE PLURAL AND THE PLURAL THE SINGULAR AND ANY GENDER SHALL INCLUDE ANY OTHER GENDER. THE PARTIES ACKNOWLEDGE THAT EACH PARTY HAS REVIEWED THIS NOTE, AND NO PROVISION OF THIS NOTE SHALL BE INTERPRETED FOR OR AGAINST ANY PARTY BECAUSE SUCH PARTY OR ITS REPRESENTATIVE DRAFTED SUCH PROVISION. 13. Collection Costs.The Company promises to pay any and all costs of collection, including reasonable attorneys' fees, incurred in the collection of this Note following an Event of Default (whether before, at or after trial or in connection with any appeal). 14. Waiver by the Company.The Company hereby waives demand, notice, presentment, protest and notice of dishonor with respect to the enforcement of this Note in accordance with its express terms. IN WITNESS WHEREOF, the Company has caused this Note to be executed in its corporate name and this Note to be dated, issued and delivered, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: ___________________________________ James Dorst, Chief Financial Officer Address: 981 Industrial Way Building B San Carlos, California 94070-4117 27 EX-10.5 6 0006.txt FORM OF NOTE PURCHASE AGREEMENT Exhibit 10.5 OMNIS TECHNOLOGY CORPORATION NOTE PURCHASE AGREEMENT THIS NOTE PURCHASE AGREEMENT (the "Agreement") is effective as of August 23, 2000, by and between OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and _________________________________ (the "Lender). 1. The Loan and Note. 1.1. The Loan. Subject to the terms and conditions of this Agreement, Lender agrees to make a loan (the "Loan") to the Company at the Closing in the aggregate principal amount of ____________________ Dollars ($________) ("Principal Amount") to be governed by the terms and conditions of, and repaid in accordance with, this Agreement and that certain Nonsecured Convertible Promissory Note of the Company in the form attached hereto and made a part hereof as Exhibit A (the "Note"). 1.2. The Note and Other Notes. The Loan made by the Lender pursuant hereto shall be evidenced by the Note. The Note is one of several similar notes to be issued concurrently by the Company in the aggregate principal amount of approximately Seven Hundred Fifty Thousand Dollars ($750,000) (the "Other Notes"). 1.3. Closings. The purchase and sale of the Note (the "Closing") will take place at the principal offices of the Company at 981 Industrial Way, San Carlos, California 94070 at such date and time as the parties shall mutually agree, or in lieu of such agreement, on August 23, 2000 at 1:00 pm Pacific time. At the Closing, the Company will deliver the duly executed Note to the Lender, and the Lender shall deliver the Principal Amount to the Company in the form of a bank cashier's check or by wire transfer as the Company may direct. 2. Representations and Warranties of the Company. The Company hereby represents and warrants to the Lender as follows: 2.1. Organization, Standing and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as contemplated to be conducted (the "Business"). The Company is duly qualified and in good standing to conduct business in each jurisdiction in which the business it is conducting, or the operation, ownership or leasing of its properties, makes such qualification necessary, except where the failure to be so qualified would not result in a Material Adverse Effect (as defined below). For purposes of this Agreement, the term "Material Adverse Effect" means any material adverse change in, or material adverse effect on, the business, assets, results of operations, value or condition (financial or otherwise) of the Company and/or the Business (individually or taken as a whole), or any event or circumstance which would likely prevent, hinder or materially delay the consummation of any of the transactions contemplated by this Agreement or the Note. 2.2. Authority and Enforceability. The Company has all requisite corporate power and authority to execute and deliver this Agreement and the Note and to perform fully its obligations hereunder and thereunder. The execution and delivery of this Agreement and the Note and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company. This Agreement and the Note have been duly executed and delivered by the Company and, assuming this Agreement and 28 the Note constitute valid and binding agreements of the other parties hereto and thereto, this Agreement and the Note constitute the legal, valid and binding agreement and obligation of the Company, enforceable against the Company in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity regardless of whether enforceability is considered in a proceeding at law or in equity. 3. Representations and Warranties of the Lender. The Lender hereby represents and warrants to the Company that: 3.1. Authorization. The Lender has full power and authority to enter into this Agreement and the Note (collectively, the "Loan Agreements") and the Loan Agreements constitute valid and legally binding agreement and obligations of the Lender, enforceable in accordance with their respective terms. 3.2. Purchase Entirely for Own Account. The Note and the Common Stock of the Company issuable upon conversion of the Note (collectively, the "Securities") are being acquired by the Lender for investment for its own account, and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the Lender has no present intention of selling, granting any participation in, or otherwise distributing the same. The Lender does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation in any of the Securities to such person or to any third person. The Lender has not been organized for the purpose of acquiring the Securities. 3.3. Disclosure of Information. The Lender understands that any loan to the Company or investment in the Securities involves substantial risks. The Lender has been given the opportunity to make a thorough investigation of the business and activities of the Company. The Lender further has been afforded the opportunity to obtain any additional information deemed necessary by the Lender to verify the accuracy of any representations made or information conveyed to the Lender. The Lender has had an opportunity to ask questions of and receive answers from the Company or its officers concerning the Company and the terms and conditions of the offering and sale of this Agreement and the Note. 3.4. Investment Experience. The Lender, by reason of its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment and lending decisions of this type that it is capable of (i) evaluating the merits and risks of an investment in the Securities and making an informed investment decision, (ii) protecting its own interests and (iii) bearing the economic risk of such investment, including the complete loss thereof. 3.5. Accredited Investor. The Lender is an "accredited investor" within the meaning of the Securities and Exchange Rule 501(a) of Regulation D of the Securities Act of 1933 ("Securities Act"), as presently in effect. 3.6. Restricted Securities. The Lender understands that the Securities have not been registered under the Securities Act of 1933 ("Securities Act") or state securities laws subject to the prior approval of Omnis following the execution of the Agreement and Plan of Merger. by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws that depends upon, among other matters, the bona fide nature of the investment intent and the accuracy of the Lender's representations as expressed in this Agreement. The Lender further understands that the Company shall have no obligation to register the Securities 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. The Lender hereby acknowledges that because of the restrictions on transfer or assignment of the Securities the Lender may have to bear the economic risk of the investment commitment in the Securities for an indefinite period of time. 29 3.7. Further Limitations on Disposition. The Lender 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 Securities. In furtherance of the foregoing and without limiting any other representations and warranties in this Agreement, the Lender will not offer to sell, exchange, transfer, pledge, or otherwise dispose of any of the Securities unless at such time at least one of the following is satisfied: (a) There is then in effect a Registration Statement under the Securities Act as filed with the United States Securities and Exchange Commission covering such proposed disposition; and such disposition is made in accordance with such Registration Statement; (b) Such transaction shall be permitted pursuant to the provisions of SEC Rule 144; (c) (i) the Lender shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (ii) if requested by the Company, the Lender shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company and its counsel, that such disposition will not require registration of such shares under the Securities Act or registration or qualification under any applicable state securities laws; or (d) An authorized representative of the SEC shall have rendered written advice to the Lender (sought by the Lender or counsel to the Lender, with a copy thereof and of all other related communications delivered to the Company) to the effect that the SEC would take no action with respect to the proposed sale, transfer or other disposition if consummated; and such proposed sale, transfer or other disposition did not violate any applicable state securities laws. 3.8 Legends. It is understood that the certificates evidencing the Securities or any substitute therefor may bear one or all of the following legends or their substantial equivalent: (a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED;" and (b) Any legend required by the laws of the State of California or any other applicable state. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 4. Pari Passu with All Other Notes. The Note shall have no preference or priority of any kind with respect to each of the Other Notes issued by the Company concurrently herewith. 5. Conditions to Closing. 5.1. Conditions of the Lender's Obligations at Closing. The obligations of the Lender at the Closing are subject to the fulfillment, on or prior to the date of Closing, of each of the following conditions, any of which may be waived in whole or in part by the Lender in writing: 30 (a) The representations and warranties made by the Company in Section 2 shall be true and correct when made, and shall be true and correct on the date of Closing with the same force and effect as if they had been made on and as of the same date. (b) The Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or prior to the date of Closing. (c) Except for the notices required or permitted to be filed after the date of Closing pursuant to applicable federal and state securities laws, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Note. (d) At the Closing, the sale and issuance by the Company, and the purchase by the Lender, of the Note shall be legally permitted by all laws and regulations to which the Lender or the Company are subject. 5.2. Conditions to Obligations of the Company. The Company's obligation to issue and sell the Note at the Closing or otherwise engage in the contemplated transactions is subject to the fulfillment to the Company's satisfaction on or prior to the date of Closing of the following conditions, any of which may be waived in whole or in part by the Company: (a) The representations and warranties made by the Lender in Section 3 shall be true and correct when made, and shall be true and correct on the date of Closing with the same force and effect as if they had been made on and as of the same date. (b) Except for any notices required or permitted to be filed after the date of Closing pursuant to applicable federal or state securities laws, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Securities. (c) At the Closing, the sale and issuance by the Company, and the purchase by the Lender, of the Note shall be legally permitted by all laws and regulations to which the Lender or the Company are subject. 5.3. Reservation of Stock. The Company covenants that during the period the Note is convertible in accordance with its terms, the Company will (i) reserve from its authorized and unissued Common Stock, a sufficient number of shares to provide for the issuance of Common Stock upon conversion of the Note or (ii) and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of the entire outstanding principal and accrued and unpaid interest on the Note, in addition to such other remedies as shall be available to the Lender, the Company will use its best efforts to take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes. 6. Miscellaneous. 6.1. Governing Law. This Agreement and the Note shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. 6.2. Survival. The representations, warranties, covenants and agreements made herein shall survive any investigation made by the Lender and the Closing of the transactions contemplated hereby. 31 6.3. Successors and Assigns. Except as otherwise expressly provided herein and subject to any restrictions on transfer under applicable securities laws, the provisions hereof shall inure to the benefit of and be binding upon each of the parties; the successors and assigns of the Company; and the heirs, devisees, executors, administrators, representatives, successors and assigns of the Lender. 6.4. Entire Agreement. This Agreement and the Note constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof and thereof. Any prior or contemporaneous agreements, representations or warranties not expressly set forth in this Agreement or the Note are superseded and of no force or effect. This Agreement or the Note may be modified or amended or waived only by an instrument in writing executed by both of the parties. 6.5. Notices, etc. ALL NOTICES OR OTHER COMMUNICATIONS HEREUNDER OR UNDER THE NOTE SHALL BE IN WRITING AND SHALL BE DELIVERED PREPAID (A) BY PERSONAL DELIVERY, (B) BY A NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE, OR (C) BY UNITED STATES FIRST CLASS REGISTERED OR CERTIFIED MAIL RETURN RECEIPT REQUESTED; AND THE DATE OF DELIVERY SHALL BE DEEMED TO BE THE EARLIER OF (I) ACTUAL RECEIPT OF NOTICE BY ANY PERMITTED MEANS, OR (II) THREE BUSINESS DAYS FOLLOWING DISPATCH BY OVERNIGHT DELIVERY SERVICE OR THE UNITED STATES MAIL. SUCH NOTICES SHALL BE ADDRESSED TO EACH PARTY AT THEIR RESPECTIVE ADDRESSES AS SET FORTH ON THE SIGNATURE PAGE OF THIS AGREEMENT; OR SUCH OTHER ADDRESS OR PROVIDED BY NOTICE TO THE OTHER PARTY AS HEREIN PROVIDED. 6.6. Severability of this Agreement. If any provision of this Agreement or the Note shall be judicially determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any manner be affected or impaired and shall remain in full force and effect. 6.7 Interpretation. Sections and section headings contained in this Agreement or the Note are for reference purposes only, and shall not affect in any manner the meaning of interpretation of this Agreement or the Note. Whenever the context requires, references to the singular shall include the plural and the plural the singular and any gender shall include any other gender. The parties acknowledge that each party has reviewed this Agreement and the Note, and no provision of this Agreement or the Note shall be interpreted for or against any party because such party or its representative drafted such provision. 6.8. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument. 6.9. Expenses. Regardless of whether the Closing is effected, each party shall bear all of its own costs and expenses with respect to the negotiation, execution, delivery and performance of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above. COMPANY: OMNIS TECHNOLOGY CORPORATION By: __________________________________ Name: ________________________________ Title: _______________________________ Address: 981 Industrial Way 32 San Carlos, California 94070 LENDER: ______________________________________ (Print Name) By: __________________________________ Title (If Any): ______________________ Address: _____________________________ ______________________________________ ______________________________________ 33 SCHEDULE A NONSECURED CONVERTIBLE PROMISSORY NOTE A-1 THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OMNIS TECHNOLOGY CORPORATION NONSECURED CONVERTIBLE PROMISSORY NOTE $_____________________________ August 23, 2000 San Carlos, California 1. Principal and Interest. 1.1. Omnis Technology Corporation, a Delaware Corporation (the "Company"), for value received, hereby promises to pay to the order of _________________________ (the "Lender" or the "Holder") the amount of ___________________________________ ("Principal") plus accrued interest in lawful money of the United States or as otherwise hereinafter set forth. This Loan is being made to the Company pursuant to that certain Note Purchase Agreement between the parties of even date herewith of which this Note is a part ("Agreement"). 1.2 This Nonsecured Convertible Promissory Note (the "Note") shall bear interest at the rate of Four Percent (4%) per annum on the Principal from the date of issuance of this Note until paid in full or converted into shares of Common Stock of the Company pursuant to Section 4 hereof. No payment of Principal or interest under this Note shall be due until August 23, 2002 (the "Maturity Date") unless there is an Event of Default (as defined in Section 2 hereof) in which case such payment shall be accelerated. Interest on this Note shall compound semi-annually. This Note is not secured by any assets or securities of the Company. 1.3 Upon payment in full of the Principal hereof and accrued interest hereunder or upon conversion thereof, this Note shall be cancelled and shall be surrendered to the Company. 1.4 The Principal and interest on this Note shall be payable to the Holder hereof at such address as the Holder shall from time to time designate by written notice to the Company pursuant to the Agreement. 2. Events of Default. The occurrence of any one or more of the following events, shall constitute an "Event of Default" hereunder: 2.1 Any representation or warranty of the Company herein or in the Agreement shall be untrue or incorrect as of the date when made in any material respect, when considered together with the other such representations and warranties made by the Company and in light of the circumstances under which they were made; or 2.2 (a) The commencement of a voluntary petition in bankruptcy or the filing of a petition to have the Company declared bankrupt or insolvent or the filing of any other petition of reorganization, arrangement or similar relief by or for the Company under any applicable law regarding insolvency or relief for debtors, unless such proceeding is vacated, discharged, or stayed or bonded pending appeal within 60 days from the commencement thereof ; (b) the making by the Company of a general assignment for the A-2 benefit of creditors or any similar undertaking; (c) the appointment of a receiver, trustee or similar officer for the business or property of the Company, which appointment is not vacated, discharged, or stayed or bonded pending appeal within 60 days from such appointment; or (d) the admission by the Company in writing of its inability to pay its debts generally as such debts become due. 3. Remedies. The Holder shall have such remedies upon occurrence of an Event of Default under this Note as provided herein or by applicable law, provided however and in such Event the Company and Holder shall immediately consult in good faith with one another in an attempt to agree upon a mutually agreeable resolution. 4. Conversion. 4.1 Automatic Conversion. Subject to Section 5 hereof, all then outstanding Principal and accrued and unpaid interest hereunder shall be automatically converted on the Maturity Date into a number of fully paid and non-assessable whole shares of Common Stock of the Company, $0.10 par value (the "Common Stock") at a conversion price of Six Dollars and Seventeen Cents ($6.17) per share (the "Conversion Price"). Upon conversion hereunder this Note shall be canceled and no further amounts shall be due hereunder. Absent an election to convert by the Holder, this Note shall not be convertible upon acceleration hereof following an Event of Default. 4.2 Voluntary Conversion. Subject to Section 5 hereof, at any time before the Maturity Date, the Holder of this Note may elect by written notice to the Company duly executed by the Holder to convert all or any portion of the then outstanding Principal and accrued and unpaid interest hereunder into fully paid and non-assessable whole shares of Common Stock of the Company at the Conversion Price. 4.3 Shares Issuable; No Fractional Shares. The number of whole shares of Common Stock into which this Note may be converted shall be determined by dividing the amount of Principal and interest being converted as of the date of conversion by the Conversion Price. No fractional shares of Common Stock shall be issued upon conversion of this Note and in lieu of fractional shares, the Holder upon such conversion shall be paid an amount in cash by the Company, without interest and rounded down to the nearest cent, determined by multiplying the fractional interest to which the Holder would otherwise be entitled by the Conversion Price. 4.4 Delivery of Note and Stock Certificates. Upon the conversion of this Note and return of the original Note to the Company, the Company will issue and deliver to the Holder of this Note a certificate or certificates (bearing such legends as are required by applicable state and federal securities laws in the opinion of counsel to the Company and as further provided by the Agreement) for the number of full shares of Common Stock issuable upon such conversion. In the event this Note is only partially converted, the original of the duly executed written notice of conversion by the Holder shall be delivered to the Company and shall constitute a legally binding amendment of this Note; and the total amount of the Principal and interest owed hereunder shall be reduced and offset by the amount of such Conversion. A-3 5. Payment or Prepayment; Conversion within Notice Period. Notwithstanding any contrary provision hereof, the Company shall have the right at any time and from time to time, including on the Maturity Date, upon ten (10) business days written notice to the Holder ("Notice Period"), to pay or prepay the Principal in whole or in part plus accrued interest thereon to date of payment without penalty; provided however that the Holder may at any time during any Notice Period elect to convert outstanding Principal and accrued interest for shares of Common Stock hereunder by written notice to the Company in an amount equal to or greater than the proposed payment or prepayment amount and provided further that if Holder elects to convert in an amount equal to or greater than any proposed payment or prepayment amount, then the Company shall not make such noticed payment or prepayment and such conversion shall be pursuant and subject to the other provisions hereof. The Company may further exercise its right to pay or prepay all or any part of this Note at any time notwithstanding any one or more partial prepayments or conversions hereunder. 6. Binding Effect. Except as otherwise expressly provided herein and subject to any restrictions on transfer under applicable securities laws, the provisions hereof shall inure to the benefit of and be binding upon each of the parties; the successors and assigns of the Company; and the heirs, devisees, executors, administrators, representatives, successors and assigns of the Holder. 7. Transfer of This Note or Common Stock Issuable on Conversion Hereof. With respect to any proposed offer, sale or other disposition of this Note or Common Stock of the Company into which this Note may be converted, the Holder will give written notice to the Company prior thereto and shall otherwise comply with the terms and conditions of the Agreement. 8. Notices. Any notice or other communication or payment required or permitted hereunder shall made pursuant to the notice provisions set forth in the Agreement. 9. Governing Law. This Note is being delivered in and shall be construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. 10. Entire Agreement. THIS NOTE AND THE AGREEMENT CONSTITUTE THE FULL AND ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECT MATTER HEREOF AND THEREOF. ANY PRIOR OR CONTEMPORANEOUS AGREEMENTS, REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THIS NOTE OR THE AGREEMENT ARE SUPERSEDED AND OF NO FORCE OR EFFECT. THIS NOTE MAY BE MODIFIED OR AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY BOTH OF THE PARTIES. 11. Severability. If any provision of this Note shall be judicially determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any manner be affected or impaired and shall remain in full force and effect. A-4 12. Interpretation. SECTIONS AND SECTION HEADINGS CONTAINED IN THIS NOTE ARE FOR REFERENCE PURPOSES ONLY, AND SHALL NOT AFFECT IN ANY MANNER THE MEANING OF INTERPRETATION OF THIS NOTE. WHENEVER THE CONTEXT REQUIRES, REFERENCES TO THE SINGULAR SHALL INCLUDE THE PLURAL AND THE PLURAL THE SINGULAR AND ANY GENDER SHALL INCLUDE ANY OTHER GENDER. THE PARTIES ACKNOWLEDGE THAT EACH PARTY HAS REVIEWED THIS NOTE, AND NO PROVISION OF THIS NOTE SHALL BE INTERPRETED FOR OR AGAINST ANY PARTY BECAUSE SUCH PARTY OR ITS REPRESENTATIVE DRAFTED SUCH PROVISION. 13. Collection Costs. The Company promises to pay any and all costs of collection, including reasonable attorneys' fees, incurred in the collection of this Note following an Event of Default. 14. Waiver by the Company. The Company hereby waives demand, notice, presentment, protest and notice of dishonor with respect to the enforcement of this Note in accordance with its express terms. IN WITNESS WHEREOF, the Company has caused this Note to be executed in its corporate name and this Note to be dated, issued and delivered, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: ___________________________________ Name Title _________________________________ A-5 -----END PRIVACY-ENHANCED MESSAGE-----