-----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, TKKyYlG19GH9I41EKYMObcT6M9megPK8OvPHh9z6O8WccVFAAT+O1gwKbAU8X2fT t8hoMqs16PccCLOuI0vb2g== 0000950149-99-000645.txt : 19990406 0000950149-99-000645.hdr.sgml : 19990406 ACCESSION NUMBER: 0000950149-99-000645 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19990402 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990405 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNIS TECHNOLOGY CORP CENTRAL INDEX KEY: 0000820738 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943046892 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-16449 FILM NUMBER: 99587181 BUSINESS ADDRESS: STREET 1: 981 INDUSTRIAL WAY CITY: SAN CARLOS STATE: CA ZIP: 94070-4117 BUSINESS PHONE: 6506327100 MAIL ADDRESS: STREET 1: 989 E HILLSDALE BLVD. #400 CITY: FOSTER CITY STATE: CA ZIP: 94404 FORMER COMPANY: FORMER CONFORMED NAME: BLYTH HOLDINGS INC DATE OF NAME CHANGE: 19920703 8-K 1 FORM 8-K DATED APRIL 2, 1999 1 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): April 2, 1999 OMNIS TECHNOLOGY CORPORATION - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 0-16449 94-3046892 - -------------------------------------------------------------------------------- (State or jurisdiction of (Commission File Number) (I.R.S. Employer incorporation or organization) Identification No.) 981 INDUSTRIAL WAY, BUILDING B SAN CARLOS, CALIFORNIA 94070 ------------------------------------------------------------ (Address, including zip code, of principal executive offices) Registrant's Telephone Number, Including Area Code: (650) 642-7100 ------------------------------------------------------------- (Former name or former address, if changed since last report) ================================================================================ Item 5. Other Events. On March 19, 1999, the Board of Directors of Omnis Technology Corporation (the "Company") authorized the issuance of 300,000 shares of Series A Convertible Preferred stock (the "Preferred Shares") and 7,600,000 shares of Common stock (the "Common Shares") (collectively, the Preferred Shares and the Common Shares shall be referred to as the "Shares"). The Restated Articles of Incorporation of the Company vest in the Board of Directors the authority to issue such Shares. On March 31, 1999 the Company filed with the Secretary of State of Delaware a Certificate of Designations setting forth the rights, preferences and privileges of the Preferred Stock. Pursuant to the terms of the Letter of Intent executed by and between the parties on February 22, 1999, on March 31, 1999 the Company entered into stock purchase agreements with Astoria Capital Partners ("Astoria"), an affiliate of an existing shareholder, Gwyneth Gibbs, president of the Company and certain members of the Board of Directors or their affiliates. Under the terms of the Stock Purchase Agreement with Astoria, the Company agreed to issue and Astoria agree to purchase 300,000 Preferred Shares at a purchase price of $1.6667 per share for an aggregate purchase price of $500,000 and 2,543,344 Common Shares at a purchase price of $0.25 per share, for an aggregate purchase price of $635,836 (collectively, the "Astoria Shares"). The Astoria Shares were issued and sold to Astoria in consideration of the cancellation of the indebtedness of the Company to Astoria. The Company also entered into a Common Stock Purchase Agreement with Astoria whereby Astoria purchased 1,000,000 Common Shares at a price of $0.25 per share for an aggregate purchase price of $250,000. The Common Stock Purchase Agreement and Stock Purchase Agreement grant certain registration rights and rights of first refusal to Astoria. Pursuant to the terms of the stock purchase agreements entered into with certain members of the Board of Directors, including Ms. Gibbs (the "Board of Directors Agreements"), the Company agreed to issue, in the aggregate 4,000,000 Common Shares at a price of $0.25 per share, for aggregate purchase price of $1,000,000. The Board of Directors Agreements do not grant any registration rights or rights of first refusal to the parties. The proceeds from the sale of the Common Shares to the Board of Directors was used to satisfy the debt owed, in its entirety, to the Omnis Class 2 Creditors (the "Creditors") pursuant to the Work Out Agreement entered into between the Company and the Creditors. The proceeds from the sale of the Shares to Astoria will be used for working capital purposes. Item 7. Exhibits.
Exhibit Number Description - -------------- ----------- 3.1 Certificate of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation 10.1 Stock Purchase Agreement with Astoria dated March 31, 1999 10.2 Common Stock Purchase Agreement with Astoria dated March 31, 1999 10.3 Common Stock Purchase Agreement with Gwyneth Gibbs dated March 31, 1999 10.4 Common Stock Purchase Agreement with Philip and Debra Barrett Charitable Remainder Trust dated March 31, 1999 10.5 Common Stock Purchase Agreement with RCJ Capital Partners dated March 31, 1999 10.6 Common Stock Purchase Agreement with Rockport Group, L.P. dated March 31, 1999
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 2 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. OMNIS TECHNOLOGY CORPORATION Date: April 2, 1999 By: /s/ GWYNETH M. GIBBS ---------------------------------- Gwyneth Gibbs, President -2- INDEX TO EXHIBITS FILED WITH THE CURRENT REPORT ON FORM 8-K DATED JANUARY 13, 1999
Exhibit Number Description - -------------- ----------- 3.1 Certificate of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation 10.1 Stock Purchase Agreement with Astona dated March 31, 1999 10.2 Common Stock Purchase Agreement with Astona dated March 31, 1999 10.3 Common Stock Purchase Agreement with Gwyneth Gibbs dated March 31, 1999 10.4 Common Stock Purchase Agreement with Philip and Debra Barrett Charitable Remainder Trust dated March 31, 1999 10.5 Common Stock Purchase Agreement with RCJ Capital Partners dated March 31, 1999 10.6 Common Stock Purchase Agreement with Rockport Group, L.P. dated March 31, 1999
EX-3.1 2 EXHIBIT-3.1 CERTIFICATE OF DESIGNATION 1 PAGE 1 State of Delaware Office of the Secretary of State ----------- I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "OMNIS TECHNOLOGY CORPORATION", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF MARCH, A.D. 1999, AT 9 O'CLOCK A.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. [SEAL] /s/ EDWARD J. FREEL -------------------------------------- Edward J. Freel, Secretary of State Z134169 8100 AUTHENTICATION: 9664273 991127598 DATE: 04-01-99 2 CERTIFICATE OF DESIGNATIONS OF SERIES A CONVERTIBLE PREFERRED STOCK OF OMNIS TECHNOLOGY CORPORATION Omnis Technology Corporation, a corporation ("Corporation") organized and existing under the General Corporation Law of the State of Delaware, in accordance with Section 151(g) of said Law and Article Fifth of the Restated Certificate of Incorporation of the Corporation, does hereby certify as follows: That the Restated Certificate of Incorporation of the Corporation authorizes the issuance of Three Hundred Thousand (300,000) shares of Preferred Stock, par value $1.00, and expressly vests in the Board of Directors of the Corporation the authority provided therein to issue any or all of said shares in one or more series and by resolution or resolutions, the designation, number, full or limited voting powers, rights, powers, preferences, and relative, participating, optional and other special rights and the qualifications, limitations, restrictions, and other characteristics of each series to be issued. That pursuant to the authority vested in the Board of Directors of the Corporation pursuant to Article Fifth of the Restated Certificate of Incorporation of the Corporation and Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation by unanimous vote of its members on March 1, 1999, filed with the minutes of the Board, duly adopted the following resolution providing for the creation, establishment and issuance of a series of preferred stock to be designated as "Series A Convertible Preferred Stock" ("Preferred Stock"): "RESOLVED: That pursuant to the authority vested in the Board of Directors of the Corporation pursuant to Article Fifth of the Restated Certificate of Incorporation of the Corporation and Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors does hereby provide for the creation, establishment and issuance of Preferred Stock, $1.00 par value per share, of the Corporation, to be designated as "Series A Convertible Preferred Stock" (hereinafter the "Preferred Stock"), consisting of 300,000 shares, and does hereby fix and state and express herein the designations, powers, preferences, rights, qualifications, limitations and restrictions of such Preferred Stock as follows: 1. Designation and Amount. The shares of such series of Preferred Stock shall be designated "Series A Convertible Preferred Stock", par value $1.00 per share, and the number of shares constituting such series shall be 300,000. 1 3 2. The Preferred Stock shall be voting stock. The holders of each share of Preferred Stock shall be entitled to notice of any shareholders meeting in accordance with the Bylaws of the Corporation. Each share of Preferred Stock shall be entitled to that number of votes equal to the number of shares of Common Stock into which said Preferred Stock is then convertible and shall have voting rights and powers equal to the voting rights and powers of the Common Stock (except as otherwise provided herein or as required by law, voting together with the Common Stock as a single class). Fractional shares shall not however be permitted and any fractional voting rights resulting from the foregoing formula shall be rounded down to the nearest whole number of shares. 3. Dividend Rights. The holders of shares of Preferred Stock shall be entitled to receive dividends, only when, as and if declared by the Board of Directors of the Corporation, out of funds legally available for the payment of dividends, at the rate of Twelve and One-Half Cents ($0.125) per share for each share of Preferred Stock per annum, payable in preference to all other stockholders, which right to dividends on said Preferred Stock shall be noncumulative. Such preferential dividends shall be payable in cash; provided that any holder of Preferred Stock may elect by written notice to be paid any such preferential dividends in shares of the Common Stock of the Corporation determined at a valuation of One Dollar ($1.00) per share of Common Stock (as adjusted to reflect any Adjustment Event as defined by Section 5(a) hereof), which notice shall be delivered to the Corporation prior to or at the time of any declaration of preferential dividends. The holders of Preferred Stock further and in addition shall be entitled to fully participate in and be paid any dividends declared and paid to the Common Stock or other stock of the Corporation determined on a basis equal to the number of shares of Common Stock into which said Preferred Stock is then convertible. No dividends shall be paid on any Common Stock during any fiscal year of the Corporation unless any then due and owing dividend is first paid with respect to all outstanding shares of the Preferred Stock. 4. Liquidation Preference. In the case of the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, each holder of shares of Preferred Stock shall be entitled to receive an amount in cash equal to One Dollar and Sixty-Six and Seven-Tenths Cents ($1.667) per share (as adjusted for any stock dividends, combinations, or splits with respect to such shares) for each share of Preferred Stock held by such stockholder plus any declared but unpaid dividends thereon, from the assets remaining after payment of the debts and liabilities of the Corporation, prior and in preference to any distribution or payment of any of the assets or surplus funds shall be made to the holders of the Common Stock or other stock of the Corporation. If the assets available for distribution in any such event shall be insufficient to permit payment of the full preferential amount to all holders of the Preferred Stock, then distribution shall be made ratably among such stockholders according to the amount due to each. After payment to such holders of Preferred 2 4 Stock of such sums, the remaining assets and surplus funds of the Corporation legally available for distribution, if any, shall be distributed ratably among all of the stockholders of record of stock of the Corporation in proportion to the respective number of shares of stock of the Corporation held by each stockholder, with full right of participation by the holders of the Preferred Stock on a basis equal to the number of shares of Common Stock into which said Preferred Stock is then convertible. For these purposes a liquidation, dissolution or winding up of the Corporation shall be deemed to be occasioned by or to include the consolidation or merger of the Corporation with or into any other corporation or entity or the sale or other transfer in a single transaction or a series of related transactions of all or substantially all of the assets of this Corporation, or any other reorganization of this Corporation where the stockholders of this Corporation immediately prior to such transaction(s) do not retain at least fifty percent (50%) of the voting power of and interest in the successor entity. Whenever the distribution provided for herein shall be payable in securities or property other than cash, the value of the distribution shall be the then fair market value of such securities or property as determined in good faith by the Board of Directors of the Corporation. 5. Conversion of Preferred Stock. (a) Conversion Rate. For purposes hereof the "Conversion Rate" shall be One and Six Hundred and Sixty-Seven Thousandths (1.667) shares of Common Stock for one (1) share of Preferred Stock. In effectuating the conversion any then declared and unpaid dividends on the Preferred Stock shall be disregarded. In the event of a stock split, reverse stock split, stock dividend, reorganization or recapitalization without consideration affecting the number of shares of Common Stock outstanding after the effective date of this Certificate of Designations ("Adjustment Event"), the Conversion Rate shall be proportionately adjusted so as to fully preserve the conversion rights of the Preferred Stock. Upon the occurrence of any Adjustment Event, the Corporation shall promptly compute such adjustment in the Conversion Rate in accordance with the terms hereof and shall furnish to each holder of Preferred Stock a certificate setting forth such adjustment and the facts upon which such adjustment is based. (b) Conversion Option. Each share of the Preferred Stock shall be convertible at the option of the holder thereof, at any time, into fully paid and nonassessable shares of Common Stock at the applicable Conversion Rate on the relevant date of conversion hereunder. Before any holder of Preferred Stock shall be entitled to convert the same into shares of Common Stock at the option of the holder, such holder shall surrender the certificate(s) for such shares of Preferred Stock, duly endorsed, at the office of the Corporation or of any transfer agent for said Preferred Stock, and shall give written notice to the Corporation at such office that said holder elects to convert the same; or the holder in addition to such written notice of election 3 5 to convert also shall notify the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and shall execute and deliver an agreement satisfactory to the Corporation to indemnify the Corporation for any loss incurred by it in connection with such certificates. Such conversion shall be deemed to have been made immediately before the close of business on the date of the surrender of the certificate(s) for the Preferred Stock shares to be converted or upon the execution and delivery to the Corporation of said agreement of indemnity in the case of any lost, stolen or destroyed certificates. (c) Adjustments to Conversion Price for Diluting Issues. (i) Special Definitions. For purposes of this Section 5(c), the following definitions shall apply: (A) "Options" shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities. (B) "Original Issue Date" shall mean the date on which the first share of the Preferred Stock was first issued. (C) "Convertible Securities" shall mean any evidence of indebtedness, shares (other than the Preferred Stock) or other securities convertible into or exchangeable by their terms for Common Stock. (D) "Additional Shares of Common Stock" shall mean all shares of Common Stock issued (or, pursuant to Section 5(c)(iii), deemed to be issued) by the Corporation after the Original Issue Date, other than shares of Common Stock issued or issuable at any time: (1) upon issuance of the Preferred Stock; (2) upon conversion of the Preferred Stock into Common Stock; (3) to officers, directors, and employees of, and consultants to, the Corporation pursuant to plans, arrangements or agreements approved by the Board of Directors; (4) in connection with bona fide equipment lease transactions, loan guarantees, commercial loans, bank financing transactions or technology licenses approved by the Board of Directors; 4 6 (5) pursuant to the acquisition of a company or other entity or division thereof by the Corporation by merger, purchase of assets, or other acquisition or reorganization approved by the Board of Directors whereby the Corporation owns not less than fifty-one percent (51%) of the voting power of such other company or entity or of the fair market value of the division thereof; (6) pursuant to a joint venture arrangement or other strategic financing arrangement, so long as such issuance is not primarily for equity financing purposes; or (7) any other securities issued in respect of the Preferred Stock, or the Common Stock excluded from the definition of Additional Shares of Common Stock by this Subparagraph D, upon any stock split, stock dividend, consolidation, recapitalization or similar event for which an adjustment is made to the Conversion Price pursuant to Section 5(d) hereof. (ii) No Adjustment of Conversion Price. No adjustment in the then applicable Conversion Price of a share of Preferred Stock shall be made in respect of the issuance of Additional Shares of Common Stock unless the consideration per share for an Additional Share of Common Stock issued or deemed to be issued by the Corporation is less than the respective Conversion Price in effect on the date of, and immediately prior to such issue, for such share of Preferred Stock. (iii) Deemed Issue of Additional Shares of Common Stock. Except as otherwise provided in Section 5(c)(i), in the event the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued with respect to the Preferred Stock unless the consideration per share (determined pursuant to Section 5(c)(v) hereof) of such Additional Shares of Common Stock would be less than the then applicable Conversion Price of Preferred Stock in effect on the date of and immediately prior to such issue, or such record date, as the case may be, and provided further that in any such case in which Additional Shares of Common Stock are deemed to be issued: 5 7 (A) no further adjustment in the Conversion Price shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such Convertible Securities; (B) if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any increase in the consideration payable to the Corporation, or decrease in the number of shares of Common Stock issuable, upon the exercise, conversion or exchange thereof, the Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities; (C) upon the expiration of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised, the Conversion Price computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon such expiration, be recomputed as if: (1) in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common Stock issued were shares of Common Stock, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of all such Options, whether or not exercised, plus the consideration actually received by the Corporation upon such exercise, or for the issue of all such Convertible Securities which were actually converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and (2) in the case of Options or Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common Stock deemed to have been then issued was the consideration actually received by the Corporation for the issue of such Options, whether or not exercised, plus the consideration deemed to have been received by the Corporation upon the issue of the Convertible Securities with respect to which such Options were actually exercised; (D) no readjustment pursuant to clause (2) or (3) above shall have the effect of increasing the Conversion Price to an amount which 6 8 exceeds the lower of (i) the Conversion Price on the original adjustment date, or (ii) the Conversion Price that would have resulted from any issuance of Additional Shares of Common Stock between the original adjustment date and such readjustment date; and (E) in the case of any Options which expire by their terms not more than 30 days after the date of issue thereof, no adjustment of the Conversion Price shall be made until the expiration or exercise of all such Options. (iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event this corporation shall issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 5(c)(iii)) without consideration or for a consideration per share less than the applicable Conversion Price in effect on the date of and immediately prior to such issue, then and in such event, the then applicable Conversion Price, as the case may be, shall be reduced, concurrently with such issue, to a price (calculated to the nearest cent) determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of shares of Common Stock which the aggregate consideration received by the Corporation for the total number of Additional Shares of Common Stock so issued would purchase at such Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of such Additional Shares of Common Stock so issued; provided that, for the purpose of this Section 5(c)(iv), all shares of Common Stock issuable upon conversion of outstanding Options, Convertible Securities and the Preferred Stock shall be deemed to be outstanding, and immediately after any Additional Shares of Common Stock are deemed issued pursuant to Section 5(c)(iii), such Additional Shares of Common Stock shall be deemed to be outstanding. (v) Determination of Consideration. For purposes of this Section 5(c), the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows: (A) Cash and Property: Such consideration shall: (1) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation excluding amounts paid or payable for accrued interest or accrued dividends; (2) insofar as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith by the Board; and 7 9 (3) in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (1) and (2) above, as determined in good faith by the Board. (B) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Section 5(c)(iii), relating to Options and Convertible Securities, shall be determined by dividing (1) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities by (2) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities. (d) Adjustments to Conversion Price for Certain Other Events. (i) Adjustments for Subdivisions, Combinations or Consolidation of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided (by stock split, stock dividend, or otherwise), into a greater number of shares of Common Stock, the Conversion Price then in effect shall, concurrently with the effectiveness of such subdivision, be proportionately decreased. In the event the outstanding shares of Common Stock shall be combined or consolidated, by reclassification or otherwise, into a lesser number of shares of Common Stock, the Conversion Price then in effect shall, concurrently with the effectiveness of such combination or consolidation, be proportionately increased. (ii) Adjustments for Other Distributions. In the event the Corporation at any time or from time to time makes, or fixes a record date for the determination of holders of Common Stock entitled to receive any distribution payable in securities of the Corporation other than shares of Common Stock and other than as 8 10 otherwise adjusted in this Section 5, then and in each such event provision shall be made so that the holders of Preferred stock shall receive upon conversion thereof, in addition to the number of shares of Common Stock receivable thereupon, the amount of securities of the Corporation which they would have received had their respective Preferred Stock been converted into Common Stock on the date of such event and had they thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by them as aforesaid during such period, subject to all other adjustments called for during such period under this Section 5 with respect to the rights of the holders of the Preferred Stock. (iii) Adjustments for Reclassification, Exchange and Substitution. If the Common Stock issuable upon conversion of any series of the Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for above), the Conversion Price then in effect shall, concurrently with the effectiveness of such reorganization or reclassification, be proportionately adjusted such that the respective Preferred Stock shall be convertible into, in lieu of the number of shares of such other class or classes of stock equivalent to the number of shares of Common Stock that would have been subject to receipt by the holders upon conversion of the respective Preferred Stock immediately before the change. (e) Other Conversion Procedures. No fractional shares of Common Stock shall be issued on conversion of Preferred Stock. In place of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the then effective Conversion Rate. As soon as practicable after the event of any conversion of Preferred Stock hereunder, the Corporation shall issue and deliver at such office to such holder of such Preferred Stock a certificate or certificates for the number of shares of Common Stock to which the holder shall be entitled and a check payable to the holder in the amount of any cash payable in place of fractional shares of Common Stock (after aggregating all shares of Common Stock issuable to such holder of Preferred Stock on conversion of the number of such shares of Preferred Stock at the time being converted). If less than all of the shares represented by such certificates are surrendered for conversion in the event of an optional conversion, the Corporation shall issue and deliver to such holder a new certificate for the balance of the Preferred Stock shares not so converted. (d) Status of Converted Stock. In the case of any shares of Preferred Stock converted pursuant to this Section 5, the shares of Preferred Stock so converted shall be cancelled, shall not be reissuable and shall cease to be part of the authorized capital stock of the Corporation. 9 11 6. No Preemption Rights. The Preferred Stock shall have no preemption rights or rights of first refusal. 10 12 IN WITNESS WHEREOF, Omnis Technology Corporation has duly caused this Certificate of Designations to be signed and acknowledged by its duly authorized Secretary this 31st day of March, 1999. OMNIS TECHNOLOGY CORPORATION By: /s/ GEOFFREY P. WAGNER ----------------------------------------------- Geoffrey P. Wagner, Secretary ATTEST: /s/ COLLEEN Y. PALMER --------------------------------------------------- Colleen Y. Palmer, Secretary EX-10.1 3 STOCK PURCHASE AGREEMENT 1 EXHIBIT 10.1 STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") by and between OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P. (the "Purchaser"). WHEREAS, Purchaser is a secured creditor of the Company and the Company is indebted to Purchaser in the total amount of One Million One Hundred Thirty-Five Thousand Eight Hundred and Thirty-Six Dollars ($1,135,836) in principal and accrued interest (collectively "Astoria Indebtedness") as of March 31, 1999; and WHEREAS, the parties desire to satisfy and discharge the Astoria Indebtedness by the transfer to Purchaser of shares of the Preferred and Common Stock of the Company in full payment thereof. NOW THEREFORE, in consideration of the foregoing and the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF PREFERRED AND COMMON STOCK. (a) Preferred Authorization. The Company will authorize the sale and issuance of Three Hundred Thousand (300,000) shares of its Series A Convertible Preferred Stock, par value $1.00 ("Preferred Shares") having the rights, privileges and preferences as set forth in the Certificate of Designations (the "Certificate of Designations") in the form attached to this Agreement as Exhibit A. The shares of Common Stock into which the Preferred Shares will be convertible are referred to herein as the "Conversion Stock." (b) The Company will also authorize the sale and issuance of 7,600,000 shares of its Common Stock, $0.10 par value ("Common Shares"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company in the form attached to this Agreement as Exhibit B ("Restated Certificate of Incorporation"). The foregoing Preferred Shares and Common Shares shall be collectively referred to herein as the "Shares". (c) Sale of Shares; Purchase Prices. Subject to the terms and conditions hereof, the Company will issue and sell to Purchaser, and the Purchaser will buy from the Company, (i) Three Hundred Thousand (300,000) Preferred Shares at a purchase price of One Dollar and Sixty-Six and Sixty-Seven Hundredths Cents ($1.6667) per share, for an aggregate purchase price of Five Hundred Thousand Dollars ($500,000); and (ii) 2,543,344 Common Shares at a purchase price of Twenty-Five Cents ($0.25) per 2 share, for an aggregate purchase price of Six Hundred Thirty-Five Thousand Eight Hundred and Thirty-Six Dollars ($635,836), as further provided herein. (d) The parties hereby acknowledge and agree 300,000 Preferred Shares and 2,543,344 Common Shares are being issued by the Company to the Purchaser in consideration for the cancellation of the indebtedness of the Company currently held by Purchaser as evidenced by the promissory note dated ___________ issued by the Company in favor of Purchaser with a current balance equal to the Astoria Indebtedness (the "Astoria Note"). Concurrently with the issuance of the Shares, as contemplated by this Agreement, the Astoria Note shall be returned to the Company stamped "Cancelled" and the Astoria Note shall thereafter be treated for all purposes as if the Astoria Note had been paid in full. The Purchaser shall no longer hold any indebtedness of the Company upon issuance of the Shares in accordance with this paragraph 1. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10:00 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or at such other time and place upon which the Company and the Purchaser shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). (b) Delivery. At the Closing, the Company shall deliver to the Purchaser executed certificates registered in the name of the Purchaser representing the number of the Preferred Shares and the number of the Common Shares being purchased by Purchaser, against payment of the purchase price therefor. (c) Payment of Purchase Price. At the Closing, Purchaser shall execute and deliver to the Company the instruments of discharge and satisfaction of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C; and the full release of the security interest held by Purchaser to secure the Astoria Indebtedness attached hereto and made a part hereof as Exhibit D. (d) Delivery of Evidence of Payment of Other Indebtedness. At the Closing and as a condition thereof, the Company shall deliver to Purchaser written evidence of the full payment and discharge of all Option 2 Creditors of Omnis Software, Inc. and related administrative fees, which indebtedness as of the Effective Date equaled _________________________ ($____________________) in the aggregate. (e) Other Documents. At the Closing, the parties also shall deliver such additional documents or instruments reasonably necessary to effectuate the 2 3 foregoing transactions and shall reasonably cooperate with each other with respect thereto. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized, validly existing and in good standing in the state or jurisdiction of its incorporation. The Company and each of its subsidiaries has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement, including without limitation, the sale and issuance of the Shares. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which 2,080,495 shares are issued and outstanding prior to Closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock, none of which is issued and outstanding prior to the Closing; all of which shall be issued to Purchaser pursuant to terms of this Agreement. The outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. The Preferred Stock has the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filled with the Delaware Secretary of State prior to Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware general corporation. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred Shares pursuant to the terms of the current Certificate of Designations, and the Company has also reserved approximately 1,128,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. There are no other options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any shares of the Company's stock or other securities, except for a de minimus amount which may be unaccountable due to past record keeping practices. 3 4 (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, and the Conversion Stock when issued upon conversion of the Preferred Shares, will be validly issued (including, without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable and will have the rights, preferences and privileges respectively described in the Restated Certificate of Incorporation of the Company including the Certificate of Designations as then constituted; and the Shares and the Conversion Stock shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares and the Conversion Stock will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to Purchaser its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. The Company has delivered to Purchaser its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since December 31, 1998, there has not been any material change in the assets, liabilities condition (financial or otherwise) or results of operations of the Company, except changes in the ordinary course of business, none of which has had or is expected to have a material adverse effect on such assets, liabilities conditions or results of operations. 4 5 (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not materially conflict with or result in any violation of, or default, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any legally enforceable contract or agreement between the Company and any third person or entity or any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or its properties or assets; and the Company is not a party to any outstanding agreement which material obligation or agreement is inconsistent with this Agreement. (i) Governmental Consents. No consent, approval, order or authorization of, or registration, designation, declaration or filing with, any local, state or federal governmental authority on the part of the Company is required in connection with the Company's valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares (and Conversion Stock), or the consummation of any other transaction contemplated hereby, except for the filing of the Certificate of Designations, which shall be filed by the Company prior to the Closing, and the filing of a Form D notice under Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), and any other post-sale filings required by applicable state securities laws. The offer, sale and issuance of the Shares (and of the Conversion Stock) in conformity with the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act and from the qualification requirements of applicable state securities laws, assuming the accuracy of the representations and warranties of the Purchaser as set forth in Section 4 of this Agreement. (j) Litigation. There is no action, proceeding or investigation pending or, to the knowledge of the Company, threatened, or any basis therefor known to the Company, that questions the validity of this Agreement, or the right of the Company to enter into, or to consummate the transactions contemplated hereby, or which might result, either individually or in the aggregate, in any material adverse change in the assets, condition, affairs or prospects of the Company, financially or otherwise, or any change in the current equity ownership of the Company. The foregoing includes, without limitation, actions pending or threatened (or any basis therefor known to the Company) involving the prior employment of any of the Company's employees, their use in connection with the Company's business of any trade secrets of any of their former employers, or their obligations under any agreements with prior employers. The Company (a) is not a party to any lawsuit or similar action or proceeding, (b) is not a party to or subject to any order, writ, injunction, judgment or decree of any court or government agency or instrumentality, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material 5 6 fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (l) Brokers or Funders. The Purchaser has not incurred and will not incur directly or indirectly as a result of any action taken by the Company or its representatives or agents, any liability for brokerage or funders' fees or agents' commissions or similar charges in connection with this Agreement or the transactions contemplated hereby. Company agrees to fully indemnify and defend and hold harmless the Purchaser from and against all liabilities incurred by Company or any related party with respect to claims related to investment banking or funders' fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and expenses (including reasonable fees or counsel) of investigating and defending such claims. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares and the Conversion Stock as follows: (a) Experience. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares and Purchaser has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Purchaser is acquiring the Shares and the Conversion Stock for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Purchaser understands that the Shares and the Conversion Stock have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Purchaser's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares or Conversion Stock. Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. 6 7 (d) Rule 144. Purchaser acknowledges that the Shares and the Conversion Stock must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one (1) year and in certain cases two (2) years, after they have been purchased and paid for within the meaning of Rule 144. (e) Authority. Purchaser has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Purchaser, will constitute the legally binding valid obligations of Purchaser enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Purchaser has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Purchaser acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Purchaser has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not materially conflict with any legally enforceable contract or agreement between Purchaser and any third person or entity; and Purchaser is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Purchaser contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Purchaser or its representative or agent, any liability for brokerage or finders' fees or agents' 7 8 commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Purchaser or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. PURCHASER'S CONDITIONS TO CLOSING. The Purchaser's obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Purchaser unless consented to in writing: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Compliance Certificate. The Company will have delivered to Purchaser a Certificate dated as of Closing, signed by the Company's President, certifying that the conditions set forth in Sections 5(a), (b) and (c) have been fulfilled. (e) Minimum Investment. The Company at the Closing shall sell 300,000 Preferred Shares having an aggregate purchase price of not less than $500,000 and 2,543,344 Common Shares having an aggregate purchase price of not less than $635,836. (f) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding Astoria's new investment in the Company. (g) Delivery of Evidence of Payment of Other Indebtedness. At the Closing and as a condition thereof, the Company shall deliver to Purchaser written evidence of the full payment and discharge of all Option 2 Creditors of Omnis Software, Inc. and related administrative fees, which indebtedness as of the Effective Date equaled _________________________ ($____________________) in the aggregate. 8 9 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: (a) Representations. The representations made by the Purchasers in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. The Purchaser at the Closing shall purchase 300,000 Preferred Shares having an aggregate purchase price of not less than $500,000 and 2,543,344 Common Shares having an aggregate purchase price of not less than $635,836. (d) Payment of Purchase Price. At the Closing, Purchaser shall execute and deliver to the Company the instruments of discharge and satisfaction of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C; and the full release of the security interest held by Purchaser to secure the Astoria Indebtedness attached hereto and made a part hereof as Exhibit D. 7. Use of Proceeds. The Company shall use the proceeds from the sale of the Shares as determined, in their sole discretion, by the management of the Company for corporate purposes. 8. Restrictive Legend. Each certificate representing (i) the Shares, (ii) the Conversion Stock, and (iii) any other securities issued in respect of the Shares or Conversion Stock upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY BE REQUIRED TO BEAR THE 9 10 FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 9. Rights of First Refusal. The Company hereby grants to Purchaser (so long as Purchaser holds at least 300,000 shares of Preferred Stock (or 500,100 shares of Common Stock issued on conversion thereof) (subject to appropriate proportionate adjustments for stock splits, reverse stock splits, stock dividend, reorganization or recapitalization without consideration affecting the number of Shares of Common Stock outstanding) the right of first refusal to purchase its pro rata share of "New Securities" (as defined in this Section 9) that the Company may, from time to time propose to sell and issue. Such pro rata share, for purposes of this right of first refusal, is the ratio of (X) the number of shares of Common Stock immediately prior to the issuances of New Securities then owned by Purchaser or issuable upon the conversion of the Preferred Shares then owned by Purchaser (including shares issuable upon exercise of options or warrants held by Purchaser), to (Y) the total number of shares of Common Stock immediately prior to the issuances of New Securities then outstanding, after giving effect to the conversion of all outstanding convertible securities (including the Preferred Shares) and the exercise of all outstanding options. This right of first refusal shall be subject to the following provisions: (a) "New Securities" shall mean any Common Stock and Preferred Stock of the Company whether or not authorized on the date hereof, and rights, options, or warrants to purchase Common Stock or Preferred Stock and securities of any type whatsoever that are, or may become, convertible into Common Stock or Preferred Stock; provided; however, that "New Securities" does not include the following: (i) upon conversion of Preferred Shares into Common Shares; (ii) to officers, directors, and employees of, and consultants to, the Corporation pursuant to plans, arrangements or agreements approved by the Board of Directors; (iii) in connection with bona fide equipment lease transactions, loan guarantees, commercial loans, bank financing transactions or technology licenses approved by the Board of Directors; (iv) pursuant to the acquisition of a company or other entity or division thereof by the Corporation by merger, purchase of assets, or other acquisition or reorganization approved by the Board of Directors whereby the Corporation owns not less than fifty-one percent (51%) of the voting power of such other company or entity or of the fair market value of the division thereof; 10 11 (v) pursuant to a joint venture arrangement or other strategic financing arrangement, so long as such issuance is not primarily for equity financing purposes; (vi) shares of Common Stock or Preferred Stock issued pursuant to Section 5 of the Company's Certificate of Designation authorizing the Shares; and (vii) shares of Common Stock issued to certain officers and directors of the Company contemporaneously with the issuance of Shares to Astoria. (b) In the event that Company proposes to undertake an issuance of New Securities, it shall give Purchaser written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. Purchaser shall have ten (10) business days after receipt of such notice to agree to purchase its pro rata share of such New Securities at the price and upon the terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. (c) In the event that Purchaser fails to exercise in full the right of first refusal within the ten (10) business day period specified above, the Company shall have one hundred twenty (120) days thereafter to sell (or enter into an agreement pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within sixty (60) days from the date of said agreement) the New Securities respecting which the right of Purchaser was not exercised at a price and upon terms no more favorable to the purchaser thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within such one hundred twenty (120) day period (or sold and issued New Securities in accordance with the foregoing within sixty (60) days from the date of such agreement) the Company shall not thereafter issue or sell any New Securities, without first offering such New Securities to Purchaser in the manner provided above. (d) The right of first refusal granted under this Section 9 shall expire upon the date which is two years from the date hereof. (e) This right of first refusal is nonassignable. 10. Registration Rights. (a) the Company will register all the Common Shares to be purchased by Astoria, as well as the Common Stock issuable upon conversion of the Preferred Shares (collectively, the "Registrable Securities") for resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably 11 12 agree upon, on a continuous basis, beginning on a date not more than six months after the date of the Closing; and (b) if the registration statement covering the Registrable Securities (the "Registration Statement") does not become effective within six months after the date of the Closing, the Company shall reduce the consideration paid by Astoria for the Registrable Securities by refunding to Astoria 3% of the "Purchase Price" of the Registrable Securities for each 30-day period (pro-rated for periods of less than 30 days) by which such effectiveness is delayed. The Company shall also pay Astoria 3% of the Purchase Price (the "Penalty") for any period in excess of 30 days that the effectiveness of the Registration Statement is suspended or the Registration Statement is otherwise unavailable for use by Astoria, excluding periods during which Astoria may sell the Registrable Securities without restriction under Rule 144. Further, the parties argue that the foregoing Penalty may be waived in writing by mutual agreement of the parties. For these purposes, the Purchase Price shall be an amount equal to the number of Registrable Securities included in the Registration Statement for resale by Astoria times the average price per Common Share paid by Astoria pursuant to the agreements contemplated in the Letter of Understanding (with the shares issuable upon conversion of the Preferred Stock deemed to have been sold at $1.00 per share). 11. Miscellaneous. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Purchaser shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors and assigns of each of the parties hereto. (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject 12 13 matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at such Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Purchaser shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Purchaser for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, 13 14 that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. (j) Expenses. The Company will reimburse Purchaser promptly upon Purchaser's request for its out-of-pocket legal expenses incurred in connection with the negotiation of the terms of the transaction contemplated herein and in the letter of understanding entered into between the parties dated as of February 22, 1999. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRET ----------------------------------- Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 PURCHASER ASTORIA CAPITAL PARTNERS, L.P. By: /s/ RICK KOE -------------------------------- Its: -------------------------------- Name: ------------------------------- Title: ------------------------------ Address and Fax Number: ------------------------------------ ------------------------------------ ( ) --------- ------------------------ 14 15 EXHIBIT A CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 15 16 EXHIBIT B RESTATED CERTIFICATE OF INCORPORATION 16 17 EXHIBIT C - D [TO BE INSERTED] 17 EX-10.2 4 COMMON STOCK PURCHASE AGREEMENT 1 EXHIBIT 10.2 OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") among OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P. ("Astoria"). In consideration of the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF COMMON STOCK. (a) Authorization. The Company will authorize the sale and issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the "Shares") of its Common Stock, $0.10 par value ("Common"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company (the "Certificate") in the form attached to this Agreement as Exhibit A. (b) Sale of Common. Subject to the terms and conditions hereof, the Company will issue and sell to Astoria and Astoria will buy from the Company 1,000,000 Shares at a price of $0.25 per share for an aggregate purchase price of $250,000. Contemporaneously herewith and subject to the same terms and conditions, the Company will issue and sell to each of the persons and entities ("Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will buy from the Company, the total number of shares of Common Shares specified opposite such Purchaser's name in column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and Astoria shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). (b) Delivery. At the Closing, the Company shall deliver to Astoria a duly executed stock certificate or certificates evidencing the Shares registered in 1 2 Astoria's name as set forth above, representing the number of Shares designated in paragraph 1(b) to be purchased by Astoria, against payment of the purchase price therefor, by check payable to the Company or wire transfer pursuant to the Company's instructions. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized validly existing and in good standing in the state or jurisdiction of its incorporation. The Company and each of its subsidiaries has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement, including without limitation, the sale and issuance of the Shares. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which approximately 2,080,495 shares are issued and outstanding prior to closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock ("Preferred"), none of which is issued and outstanding prior to the Closing; provided however that all of Preferred shall be issued to Astoria Capital Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant to a separate stock purchase agreement with Astoria. The outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and were issued in compliance with applicable federal and state securities laws. The Preferred Stock shall have the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filed with the Delaware Secretary of State prior to the Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware General Corporation Law. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred pursuant to the terms of such Certificate of Designations, and the Company has also reserved approximately 1,281,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. There are no other options, warrants, conversions, privileges or other contractual rights presently outstanding to purchase or otherwise acquire any Shares 2 3 of the Company's stock or other securities, except for a de minimus amount which my be unaccountable due to past record keeping practices. (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued (including without limitation, issued in compliance with applicable state and federal securities laws), fully paid and nonassessable and will have the rights, preferences and privileges described in the Restated Certificate of Incorporation of the Company; and the Shares shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to Astoria its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. The Company has delivered to Astoria its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since December 31, 1998, there has not been any material change in the assets liabilities condition (financial or otherwise) or results of operations of the Company except changes 3 4 in the ordinary course of business, none of which has had or is expected to have a material adverse effect on such assets, liabilities, conditions or result of operations. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not materially conflict with or result in any violation of, or default, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any legally enforceable contract or agreement between the Company and any third person or entity or any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or its properties or assets; and the Company is not a party to any outstanding agreement which material obligation or agreement is inconsistent with this Agreement. (i) Governmental Consents. No consent, approval, order or authorization of, or registration, designation, declaration or filing with, any local, state or federal governmental authority on the part of the Company is required in connection with the Company's valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares (and Conversion Stock), or the consummation of any other transaction contemplated hereby, except for the filing of the Certificate of Designations, which shall be filed by the Company prior to the Closing, and the filing of a Form D notice under Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), and any other post-sale filings required by applicable state securities laws. The offer, sale and issuance of the Shares (and of the Conversion Stock) in conformity with the terms of this Agreement are exempt from the registration requirements of Section 5 of the Securities Act and from the qualification requirements of applicable state securities laws, assuming the accuracy of the representations and warranties of the Purchaser as set forth in Section 4 of this Agreement. (j) Litigation. There is no action, proceeding or investigation pending or, to the knowledge of the Company, threatened, or any basis therefor known to the Company, that questions the validity of this Agreement, or the right of the Company to enter into, or to consummate the transactions contemplated hereby, or which might result, either individually or in the aggregate, in any material adverse change in the assets, condition, affairs or prospects of the Company, financially or otherwise, or any change in the current equity ownership of the Company. The foregoing includes, without limitation, actions pending or threatened (or any basis therefor known to the Company) involving the prior employment of any of the Company's employees, their use in connection with the Company's business of any trade secrets of any of their former employers, or their obligations under any agreements with prior employers. The Company (a) is not a party to any lawsuit or similar action or proceeding, (b) is not a party to or subject to any order, writ, injunction, judgment or decree of any court or government agency or instrumentality, and (c) does not intend to initiate any such action, suit, proceeding or investigation. (k) 4 5 (l) (m) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (n) Brokers or Finders. Astoria has not incurred and will not incur, directly or indirectly as a result of any action taken by Company or its representative or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. The Company agrees to fully indemnify and defend and hold harmless Astoria from and against all liabilities incurred by Astoria or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. 4. REPRESENTATIONS AND WARRANTIES OF ASTORIA. Astoria hereby represents and warrants to the Company with respect to its purchase of the Shares as follows: (a) Experience. Astoria has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Astoria has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Astoria reasonably considers important in making the decision to purchase the Shares and Astoria has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Astoria is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Astoria understands that the Shares have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Astoria's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares. Astoria further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. 5 6 (d) Rule 144. Astoria acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Astoria is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one year and in certain cases two (2) years, after they have been purchased and paid for within the meaning of Rule 144. (e) Authority. Astoria has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Astoria, will constitute the legally binding valid obligations of Astoria enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Astoria has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Astoria acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Astoria has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998, and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not materially conflict with any legally enforceable contract or agreement between Astoria and any third person or entity; and Astoria is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Astoria contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Astoria or its representative 6 7 or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Astoria agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Company or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. ASTORIA'S CONDITIONS TO CLOSING. Astoria's obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Astoria if not consented to in writing: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Compliance Certificate. The Company will have delivered to Astoria a Certificate dated as of the Closing signed by the Company's President certifying that the conditions set forth in Section 5(a), (b) and (c) have been fulfilled. (e) Minimum Investment. The Company at the Closing shall sell 1,000,000 Shares having an aggregate purchase price of not less than $250,000. (f) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding the restructuring of Astoria Indebtedness. (g) Delivery of Evidence of Payment of Other Indebtedness. At the Closing and as a condition hereof, the Company shall deliver to Astoria written evidence of the full payment and discharge of all Option 2 Creditors of Omnis Software, Inc. and related administrative fees, which indebtedness as of the Effective Date equaled _________________________ ($________________) in the aggregate. 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: 7 8 (a) Representations. The representations made by Astoria in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. Astoria at the Closing shall purchase 1,000,000 Shares having an aggregate purchase price of not less than $250,000. 7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of the Shares primarily for working capital and for payment of amounts owed by the Company, and as otherwise determined by the management of the Company for corporate purposes. 8. REGISTRATION RIGHTS. (a) The Company will register all the Shares to be purchased by Astoria (collectively, the "Registrable Securities") for resale under the Securities Act of 1933, as amended, and the securities laws of such states as the parties may reasonably agree upon, on a continuous basis, beginning on a date not more than six months after the date of the Closing; and (b) If the registration statement covering the Registrable Securities (the "Registration Statement") does not become effective within six months after the date of the Closing, the Company shall reduce the consideration paid by Astoria for the Registrable Securities by refunding to Astoria 3% of the "Purchase Price" of the Registrable Securities for each 30-day period (pro-rated for periods of less than 30 days) by which such effectiveness is delayed. The Company shall also pay Astoria 3% of the Purchase Price for any period in excess of 30 days that the effectiveness of the Registration Statement is suspended or the Registration Statement is otherwise unavailable for use by Astoria, excluding periods during which Astoria may sell the Registrable Securities without restriction under Rule 144. For these purposes, the Purchase Price shall be an amount equal to the number of Registrable Securities included in the Registration Statement for resale by Astoria times the average price per Common Share paid by Astoria pursuant to the agreements contemplated in the Letter of Understanding (with the shares issuable upon conversion of the Preferred Stock deemed to have been sold at $1.00 per share). 9. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in 8 9 substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 10. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Astoria shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. 9 10 (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Astoria, at such Astoria's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Astoria shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Astoria for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. 10 11 (j) Expenses. The Company will reimburse Astoria promptly upon Astoria's request for its out-of-pocket legal expenses incurred in connection with the negotiation of the terms of the transaction contemplated herein and in the letter of understanding entered into between the parties dated as of February 22, 1999. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRETT ----------------------------------------- Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 11 12 PURCHASER ASTORIA CAPITAL PARTNERS, L.P. By: /s/ RICK KOE ----------------------------------- Its: ----------------------------------- Address and Fax Number: ----------------------------------- ----------------------------------- (________)_________________________ 12 13 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 13 14 EXHIBIT B LIST OF PURCHASERS
Number of Purchaser Common Shares Aggregate Purchase Price - --------- ------------- ------------------------ Rockport Group 1,420,000 $ 355,000 Additional Purchasers - --------------------- Astoria Capital Partners, LP 1,000,000 $ 250,000 RCJ Capital Partners, LP 850,000 $ 212,500 Philip Barrett Charitable Remainder Trust 1,650,000 $ 412,500 Gwyneth Gibbs 80,000 $ 20,000 ---------- ---------- TOTALS: 5,000,000 $1,250,000 ---------- ----------
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being issued to Astoria Capital Partners, L.P. in consideration for the cancellation of the indebtedness of the Company currently held by the Company in favor of Astoria Capital Partners, L.P. 14 15 EXHIBIT C CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 15 EX-10.3 5 COMMON STOCK PURCHASE AGREEMENT- GWYNETH GIBBS 1 EXHIBIT 10.3 OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") among OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and GWYNETH GIBBS (the "Purchaser"). In consideration of the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF COMMON STOCK. (a) Authorization. The Company will authorize the sale and issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the "Shares") of its Common Stock, $0.10 par value ("Common"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company (the "Certificate") in the form attached to this Agreement as Exhibit A. (b) Sale of Common. Subject to the terms and conditions hereof, the Company will issue and sell to Purchaser and Purchaser will buy from the Company 80,000 Shares at a price of $0.25 per share for an aggregate purchase price of $20,000. (c) Additional Sale of Common. Contemporaneously herewith and subject to the same terms and conditions, the Company will issue and sell to each of the persons and entities ("Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will buy from the Company, the total number of shares of Common specified opposite such Purchaser's name in column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchasers shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). (b) Delivery. At the Closing, the Company shall deliver to Purchaser a duly executed stock certificate or certificates evidencing the Shares registered in such Purchaser's name as set forth above, representing the number of Shares designated in 1 2 paragraph 1(b) to be purchased by such Purchaser, against payment of the purchase price therefor, by check payable to the Company or wire transfer pursuant to the Company's instructions. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized and existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which approximately 2,080,495 shares are issued and outstanding prior to closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock ("Preferred"), none of which is issued and outstanding prior to the Closing; provided however that all of Preferred shall be issued to Astoria Capital Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant to a separate stock purchase agreement with Astoria. The outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. The Preferred shall have the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filed with the Delaware Secretary of State prior to the Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware General Corporation Law. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred pursuant to the terms of such Certificate of Designations, and the Company has also reserved 1,281,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, such enforceability being subject only to laws of general 2 3 application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued, fully paid and nonassessable and will have the rights, preferences and privileges described in the Restated Certificate of Incorporation of the Company; and the Shares shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to each Purchaser its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. (i) The Company has delivered to each Purchaser its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since the date of the latest of such reports, there has not been any material adverse change in the condition (financial or otherwise) or results of operations of the Company. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any legally enforceable contract or agreement between the Company and any third person or 3 4 entity; and the Company is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares as follows: (a) Experience. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares and Purchaser has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Purchaser understands that the Shares have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Purchaser's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares. Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. (d) Rule 144. Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one year and in 4 5 certain cases two years, after they have been purchased and paid for within the meaning of Rule 44. (e) Authority. Purchaser has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Purchaser, will constitute the legally binding valid obligations of Purchaser enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Purchaser has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Purchaser acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Purchaser has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998, and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any legally enforceable contract or agreement between Purchaser and any third person or entity; and Purchaser is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Purchaser contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Purchaser or its representative or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Purchaser or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and 5 6 expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Purchaser who does not consent in writing thereto: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Minimum Investment. The Company at the Closing shall sell 80,000 Shares having an aggregate purchase price of not less than $20,000. (e) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding the restructuring of the Astoria Indebtedness. 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: (a) Representations. The representations made by the Purchasers in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. The Purchasers at the Closing shall purchase 80,000 Shares having an aggregate purchase price of not less than $20,000. 7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of the Shares primarily for working capital and for payment of amounts owed by the 6 7 Company, and as otherwise determined by the management of the Company for corporate purposes. 8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 9. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Purchaser shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. 7 8 (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at such Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Purchaser shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Purchaser for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. 8 9 (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. (j) Expenses. The Company and each Purchaser shall bear its own expenses incurred on its behalf with respect to this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRETT -------------------------------- Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 9 10 PURCHASER GWYNETH GIBBS By: /s/ GWYNETH GIBBS -------------------------------- Its: -------------------------------- Address and Fax Number: -------------------------------- -------------------------------- (________) _____________________ 10 11 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 11 12 EXHIBIT B LIST OF PURCHASERS
Number of Purchaser Common Shares Aggregate Purchase Price - --------- ------------- ------------------------ Rockport Group 1,420,000 $ 355,000 Additional Purchasers - --------------------- Astoria Capital Partners, LP 1,000,000 $ 250,000 RCJ Capital Partners, LP 850,000 $ 212,500 Philip Barrett Charitable Remainder Trust 1,650,000 $ 412,500 Gwyneth Gibbs 80,000 $ 20,000 ---------- ---------- TOTALS*: 5,000,000 $1,250,000 ---------- ----------
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being issued to Astoria Capital Partners, L.P. in consideration for the cancellation of the indebtedness of the Company currently held by the Company in favor of Astoria Capital Partners, L.P. 12 13 EXHIBIT C CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 13 EX-10.4 6 COMMON STOCK PURCHASE AGREEMENT WITH BARRETT 1 EXHIBIT 10.4 OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") among OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and PHILIP AND DEBRA BARRETT CHARITABLE REMAINDER TRUST (the "Purchaser"). In consideration of the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF COMMON STOCK. (a) Authorization. The Company will authorize the sale and issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the "Shares") of its Common Stock, $0.10 par value ("Common"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company (the "Certificate") in the form attached to this Agreement as Exhibit A. (b) Sale of Common. Subject to the terms and conditions hereof, the Company will issue and sell to Purchaser and Purchaser will buy from the Company 1,650,000 Shares at a price of $0.25 per share for an aggregate purchase price of $412,500. (c) Additional Sale of Common. Contemporaneously herewith and subject to the same terms and conditions, the Company will issue and sell to each of the persons and entities ("Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will buy from the Company, the total number of shares of Common specified opposite such Purchaser's name in column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchasers shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). 2 (b) Delivery. At the Closing, the Company shall deliver to Purchaser a duly executed stock certificate or certificates evidencing the Shares registered in such Purchaser's name as set forth above, representing the number of Shares designated in paragraph 1(b) to be purchased by such Purchaser, against payment of the purchase price therefor, by check payable to the Company or wire transfer pursuant to the Company's instructions. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized and existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which approximately 2,080,495 shares are issued and outstanding prior to closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock ("Preferred"), none of which is issued and outstanding prior to the Closing; provided however that all of Preferred shall be issued to Astoria Capital Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant to a separate stock purchase agreement with Astoria. The outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. The Preferred shall have the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filed with the Delaware Secretary of State prior to the Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware General Corporation Law. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred pursuant to the terms of such Certificate of Designations, and the Company has also reserved 1,281,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. 2 3 (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued, fully paid and nonassessable and will have the rights, preferences and privileges described in the Restated Certificate of Incorporation of the Company; and the Shares shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to each Purchaser its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. (i) The Company has delivered to each Purchaser its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since the date of the latest of such reports, there has not been any material adverse change in the condition (financial or otherwise) or results of operations of the Company. 3 4 (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any legally enforceable contract or agreement between the Company and any third person or entity; and the Company is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares as follows: (a) Experience. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares and Purchaser has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Purchaser understands that the Shares have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Purchaser's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares. Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. (d) Rule 144. Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Purchaser is aware of the provisions of 4 5 Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one year and in certain cases two years, after they have been purchased and paid for within the meaning of Rule 144. (e) Authority. Purchaser has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Purchaser, will constitute the legally binding valid obligations of Purchaser enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Purchaser has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Purchaser acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Purchaser has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998, and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any legally enforceable contract or agreement between Purchaser and any third person or entity; and Purchaser is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Purchaser contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Purchaser or its representative or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Purchaser or any related party 5 6 with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Purchaser who does not consent in writing thereto: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Minimum Investment. The Company at the Closing shall sell 1,650,000 Shares having an aggregate purchase price of not less than $412,500. (e) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding the restructuring of the Astoria Indebtedness. 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: (a) Representations. The representations made by the Purchasers in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. The Purchasers at the Closing shall purchase 1,650,000 Shares having an aggregate purchase price of not less than $412,500. 6 7 7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of the Shares primarily for working capital and for payment of amounts owed by the Company, and as otherwise determined by the management of the Company for corporate purposes. 8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 9. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Purchaser shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. 7 8 (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at such Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Purchaser shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Purchaser for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and 8 9 not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. (j) Expenses. The Company and each Purchaser shall bear its own expenses incurred on its behalf with respect to this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRETT ------------------------------------ Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 9 10 PURCHASER PHILIP AND DEBRA BARRETT CHARITABLE REMAINDER TRUST By: /s/ PHILIP BARRETT ----------------------------------- Philip Barrett, Trustee By: /s/ DEBRA J. BARRETT ----------------------------------- Debra J. Barrett, Trustee Address and Fax Number: ----------------------------------- ----------------------------------- ----------------------------------- ( ) --------- ------------------------ 10 11 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 11 12 EXHIBIT B LIST OF PURCHASERS
Number of Purchaser Common Shares Aggregate Purchase Price - --------- ------------- ------------------------ Rockport Group 1,420,000 $ 355,000 Additional Purchasers Astoria Capital Partners, LP 1,000,000 $ 250,000 RCJ Capital Partners, LP 850,000 $ 212,500 Barrett Charitable Remainder Trust 1,650,000 $ 412,500 Gwyneth Gibbs 80,000 $ 20,000 ----------- ---------- TOTALS*: 5,000,000 $1,250,000 --------- ----------
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being issued to Astoria Capital Partners, L.P. in consideration for the cancellation of the indebtedness of the Company currently held by the Company in favor of Astoria Capital Partners, L.P. 12 13 EXHIBIT C CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 13 EX-10.5 7 COMMON STOCK PURCHASE AGREEMENT WITH RCJ 1 EXHIBIT 10.5 OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") among OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and RCJ CAPITAL PARTNERS, L.P. (the "Purchaser"). In consideration of the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF COMMON STOCK. (a) Authorization. The Company will authorize the sale and issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the "Shares") of its Common Stock, $0.10 par value ("Common"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company (the "Certificate") in the form attached to this Agreement as Exhibit A. (b) Sale of Common. Subject to the terms and conditions hereof, the Company will issue and sell to Purchaser and Purchaser will buy from the Company 850,000 Shares at a price of $0.25 per share for an aggregate purchase price of $212,500. (c) Additional Sale of Common. Contemporaneously herewith and subject to the same terms and conditions, the Company will issue and sell to each of the persons and entities ("Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will buy from the Company, the total number of shares of Common specified opposite such Purchaser's name in column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchasers shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). (b) Delivery. At the Closing, the Company shall deliver to Purchaser a duly executed stock certificate or certificates evidencing the Shares registered in such Purchaser's name as set forth above, representing the number of Shares designated in 1 2 paragraph 1(b) to be purchased by such Purchaser, against payment of the purchase price therefor, by check payable to the Company or wire transfer pursuant to the Company's instructions. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized and existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which approximately 2,080,495 shares are issued and outstanding prior to closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock ("Preferred"), none of which is issued and outstanding prior to the Closing; provided however that all of Preferred shall be issued to Astoria Capital Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant to a separate stock purchase agreement with Astoria. The outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. The Preferred shall have the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filed with the Delaware Secretary of State prior to the Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware General Corporation Law. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred pursuant to the terms of such Certificate of Designations, and the Company has also reserved 1,281,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, such enforceability being subject only to laws of general 2 3 application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued, fully paid and nonassessable and will have the rights, preferences and privileges described in the Restated Certificate of Incorporation of the Company; and the Shares shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to each Purchaser its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. (i) The Company has delivered to each Purchaser its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since the date of the latest of such reports, there has not been any material adverse change in the condition (financial or otherwise) or results of operations of the Company. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any legally enforceable contract or agreement between the Company and any third person or 3 4 entity; and the Company is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares as follows: (a) Experience. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares and Purchaser has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Purchaser understands that the Shares have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Purchaser's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares. Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. (d) Rule 144. Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one year and in 4 5 certain cases two years, after they have been purchased and paid for within the meaning of Rule 44. (e) Authority. Purchaser has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Purchaser, will constitute the legally binding valid obligations of Purchaser enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Purchaser has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Purchaser acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Purchaser has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998, and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any legally enforceable contract or agreement between Purchaser and any third person or entity; and Purchaser is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Purchaser contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Purchaser or its representative or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Purchaser or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and 5 6 expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Purchaser who does not consent in writing thereto: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Minimum Investment. The Company at the Closing shall sell 850,000 Shares having an aggregate purchase price of not less than $212,500. (e) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding the restructuring of the Astoria Indebtedness. 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: (a) Representations. The representations made by the Purchasers in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. The Purchasers at the Closing shall purchase 850,000 Shares having an aggregate purchase price of not less than $212,500. 7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of the Shares primarily for working capital and for payment of amounts owed by the 6 7 Company, and as otherwise determined by the management of the Company for corporate purposes. 8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 9. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Purchaser shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. 7 8 (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at such Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Purchaser shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Purchaser for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. 8 9 (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. (j) Expenses. The Company and each Purchaser shall bear its own expenses incurred on its behalf with respect to this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRETT -------------------------------- Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 9 10 PURCHASER RCJ CAPITAL PARTNERS, L.P. By: /s/ GEOFFRY WAGNER -------------------------------- Its: -------------------------------- Address and Fax Number: -------------------------------- -------------------------------- (________) _____________________ 10 11 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 11 12 EXHIBIT B LIST OF PURCHASERS
Number of Purchaser Common Shares Aggregate Purchase Price - --------- ------------- ------------------------ Rockport Group 1,420,000 $ 355,000 Additional Purchasers - --------------------- Astoria Capital Partners, LP 1,000,000 $ 250,000 RCJ Capital Partners, LP 850,000 $ 212,500 Philip Barrett Charitable Remainder Trust 1,650,000 $ 412,500 Gwyneth Gibbs 80,000 $ 20,000 ---------- ---------- TOTALS*: 5,000,000 $1,250,000 ---------- ----------
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being issued to Astoria Capital Partners, L.P. in consideration for the cancellation of the indebtedness of the Company currently held by the Company in favor of Astoria Capital Partners, L.P. 12 13 EXHIBIT C CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 13 EX-10.6 8 COMMON STOCK PURCHASE AGREEMENT WITH ROCKPORT 1 EXHIBIT 10.6 OMNIS TECHNOLOGY CORPORATION COMMON STOCK PURCHASE AGREEMENT This Agreement is made as of March 31, 1999 ("Effective Date") among OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ROCKPORT GROUP L.P. (the "Purchaser"). In consideration of the mutual promises and representations and warranties of the parties hereto and other good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows: 1. AUTHORIZATION AND SALE OF COMMON STOCK. (a) Authorization. The Company will authorize the sale and issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the "Shares") of its Common Stock, $0.10 par value ("Common"), having the rights, privileges and preferences as set forth in the Restated Certificate of Incorporation of the Company (the "Certificate") in the form attached to this Agreement as Exhibit A. (b) Sale of Common. Subject to the terms and conditions hereof, the Company will issue and sell to Purchaser and Purchaser will buy from the Company 1,420,000 Shares at a price of $0.25 per share for an aggregate purchase price of $355,000. (c) Additional Sale of Common. Contemporaneously herewith and subject to the same terms and conditions, the Company will issue and sell to each of the persons and entities ("Additional Purchasers") listed on the Schedule of Purchasers attached hereto as Exhibit B and the Additional Purchasers will buy from the Company, the total number of shares of Common specified opposite such Purchaser's name in column 2 of Exhibit B, at the aggregate purchase price set forth in column 3 of Exhibit B, representing a price of Twenty-Five Cents ($0.25) per share. 2. CLOSING DATES; DELIVERY. (a) Closing Date. The closing of the purchase and sale of the Common hereunder shall be held at the offices of Landels Ripley & Diamond, LLP, 350 The Embarcadero, Suite 600, San Francisco, California 94105 at 10 a.m. local time on March 31, 1999 (the "Closing") or as soon thereafter as the conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or waived or at such other time and place upon which the Company and the Purchasers shall agree (the date of the Closing is hereinafter referred to as the "Closing Date"). (b) Delivery. At the Closing, the Company shall deliver to Purchaser a duly executed stock certificate or certificates evidencing the Shares registered in such 2 Purchaser's name as set forth above, representing the number of Shares designated in paragraph 1(b) to be purchased by such Purchaser, against payment of the purchase price therefor, by check payable to the Company or wire transfer pursuant to the Company's instructions. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a) Organization and Standing. The Company is a corporation duly organized and existing under, and by virtue of, the laws of the State of Delaware and is in good standing under such laws. The Company has the requisite corporate power and authority to own and operate its properties and assets, and to carry on its business as presently conducted. (b) Corporate Power. The Company will have at the Closing Date all requisite legal and corporate power and authority to execute and deliver this Agreement, to sell and issue the Shares hereunder, and to carry out and perform its obligations under the terms of this Agreement. (c) Capitalization. The authorized capital stock of the Company consists of Twenty Million (20,000,000) shares of Common Stock, of which approximately 2,080,495 shares are issued and outstanding prior to closing, and Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock ("Preferred"), none of which is issued and outstanding prior to the Closing; provided however that all of Preferred shall be issued to Astoria Capital Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant to a separate stock purchase agreement with Astoria. The outstanding shares of Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. The Preferred shall have the rights, preferences, privileges and restrictions set forth in the Certificate Of Designations of Series A Convertible Preferred Stock of Omnis Technology Corporation substantially in the form attached hereto and made a part hereof of Exhibit C ("Certificate of Designations"), which shall be filed with the Delaware Secretary of State prior to the Closing Date and shall be subject to the further action of the Board of Directors and Preferred shareholders of the Company in accordance with Section 151 of the Delaware General Corporation Law. The Company will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion of the Preferred pursuant to the terms of such Certificate of Designations, and the Company has also reserved 1,281,199 shares of Common Stock for issuance to employees, consultants or directors under stock plans or arrangements approved by the Board of Directors of the Company prior to the Effective Date, of which approximately 325,000 shares of Common Stock are subject to stock options or warrants or other rights granted under such plans as of the Effective Date. (d) Authorization. This Agreement, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable 2 3 in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. The Shares, when issued in compliance with the provisions of this Agreement, will be validly issued, fully paid and nonassessable and will have the rights, preferences and privileges described in the Restated Certificate of Incorporation of the Company; and the Shares shall be free of any liens or encumbrances, other than any liens or encumbrances created by or imposed upon the holders thereof through no action of the Company; provided however that the Shares will be subject to restrictions on transfer under state and/or federal securities laws. (e) Subsidiaries. The Company owns all outstanding capital stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a corporation organized under the laws of England, Omnis Software Limited, a corporation organized under the laws of England, Omnis Holdings UK, a corporation organized under the laws of England and Omnis Software GmbH, a corporation organized under the laws of Germany. (f) Financial Statements. The Company has delivered to each Purchaser its audited balance sheet and statement of operations for the period ended March 31, 1998 and its combined unaudited balance sheet and statement of operations for the period ended December 31, 1998 (collectively the "Financial Statements"). The Financial Statements are complete and correct in all material respects and accurately set out and describe the financial condition and operating results of the Company as of the dates, and during the periods, indicated therein. (g) Reports. (i) The Company has delivered to each Purchaser its Annual Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and December 31, 1998 as filed with the Securities and Exchange Commission ("SEC"). Such reports have been duly filed, were in substantial compliance with the requirements of their respective report forms, were complete and correct in all material respects as of the dates for which the information was furnished, and contained (as of such dates) no untrue statement of a material fact nor omitted to state a material fact necessary in order to make the statements made therein in light of the circumstances in which made not misleading. Since the date of the latest of such reports, there has not been any material adverse change in the condition (financial or otherwise) or results of operations of the Company. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any provision of the Restated Certificate of Incorporation or Bylaws of the Company or any 3 4 legally enforceable contract or agreement between the Company and any third person or entity; and the Company is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of the Company contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Company with respect to its purchase of the Shares as follows: (a) Experience. Purchaser has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (b) Access to Information. Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that Purchaser reasonably considers important in making the decision to purchase the Shares and Purchaser has had ample opportunity to ask questions of the Company's representatives concerning such matters and this investment. (c) Investment. Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with the view to or for resale in connection with any distribution thereof. Purchaser understands that the Shares have not been, and may not be, registered under the Securities Act of 1933 by reason of a specific exemption from the registration provisions of the Securities Act, the availability of which depends in part upon the bona fide nature of the investment intent and the accuracy of such Purchaser's representations as expressed herein. No other person will have any direct or indirect beneficial interest in or right to any of the Shares. Purchaser further acknowledges and understands that any investment in the Company is inherently speculative and subject to material financial risks and that its entire investment in the Company could be lost. (d) Rule 144. Purchaser acknowledges that the Shares must be held indefinitely unless subsequently registered under the Securities Act of 1933 or unless an exemption from such registration is available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including the requirement that the Shares be held for a minimum of one year and in 4 5 certain cases two years, after they have been purchased and paid for within the meaning of Rule 44. (e) Authority. Purchaser has all right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and this Agreement, once executed by the Company and Purchaser, will constitute the legally binding valid obligations of Purchaser enforceable in accordance with its terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (f) Access to Data. Purchaser has had an opportunity to discuss the business, management and financial affairs and prospects of the Company and its subsidiaries with the Company's management and has had the opportunity to review the United States facilities of the Company and its subsidiaries. Purchaser acknowledges and understands that such discussions, as well as any written information issued by the Company, were intended to describe certain material aspects of its business and prospects but were not a thorough or exhaustive description. (g) Reports. Purchaser has received and reviewed the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998, and December 31, 1998 filed with the SEC. (h) No Conflict. The execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not conflict with any legally enforceable contract or agreement between Purchaser and any third person or entity; and Purchaser is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. (i) Full Disclosure. The representations and warranties of Purchaser contained in this Agreement do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein or therein in light of the circumstances under which they were made not misleading. (j) Brokers or Finders. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by Purchaser or its representative or agent, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. Purchaser agrees to fully indemnify and defend and hold harmless the Company from and against all liabilities incurred by Purchaser or any related party with respect to claims related to investment banking or finders fees or similar claims in connection with the transactions contemplated by this Agreement, and all costs and 5 6 expenses (including reasonable fees of counsel) of investigating and defending such claims. 5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations to purchase the Shares at the Closing are subject to the fulfillment of the following conditions, the waiver of which shall not be effective against Purchaser who does not consent in writing thereto: (a) Representations and Warranties Correct. The representations and warranties made by the Company in Section 3 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the Closing Date shall have been performed or complied with in all material respects. (c) Certificate of Amendment. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware authorizing the issuance of the Preferred Shares. (d) Minimum Investment. The Company at the Closing shall sell 1,420,000 Shares having an aggregate purchase price of not less than $355,000. (e) Agreement with Astoria. The Company shall have reached a definitive agreement with Astoria Capital regarding the restructuring of the Astoria Indebtedness. 6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and issue the Shares of the Closing Date is, at the option of the Company, subject to the fulfillment as of the Closing Date of the following conditions: (a) Representations. The representations made by the Purchasers in Section 4 hereof shall be true and correct when made, and shall be true and correct on the Closing Date. (b) Legal Matters. All material matters of a legal nature which pertain to this Agreement, and the transactions contemplated hereby, shall have been reasonably approved by counsel to the Company. (c) Minimum Investment. The Purchasers at the Closing shall purchase 1,420,000 Shares having an aggregate purchase price of not less than $355,000. 7. USE OF PROCEEDS. The Company shall use the proceeds from the sale of the Shares primarily for working capital and for payment of amounts owed by the 6 7 Company, and as otherwise determined by the management of the Company for corporate purposes. 8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall include a legend in substantially the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. 9. MISCELLANEOUS. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California, and without reference to the principles of conflicts of law. All disputes arising under this Agreement shall be brought in the Superior Court of the State of California in San Mateo or San Francisco Counties or the Federal Court for the Northern District of California, and such courts shall have exclusive jurisdiction over disputes under this Agreement. Each of the parties expressly consents to jurisdiction and venue in the state and federal courts located in the State of California, San Mateo or San Francisco Counties, for all purposes of this Agreement or any dispute or controversy hereunder. (b) Successors and Assigns. Purchaser shall not have any right to assign or transfer this Agreement or any of its rights or obligations hereunder to any third person or entity without the prior written consent of the Company. Except as limited by the foregoing, the provisions hereof shall inure to the benefit of and be binding upon the respective officers, directors, shareholders, affiliates, partners, members, agents, representatives, successors, assigns, heirs, devisees, spouses, executors and administrators of each of the parties hereto. 7 8 (c) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof ;and any prior or contemporaneous agreements, promises, understandings, covenants, conditions, representations or warranties of any kind or nature with regard to said subject matter not expressly set forth herein, whether written or oral or express or implied, shall be superseded and of no force or effect. Any modification or amendment or waiver of this Agreement must be in writing and signed by both parties to be valid. (d) Notices, Etc. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be delivered (i) by personal delivery, (ii) by a nationally recognized overnight air courier service, (iii) by deposit in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (iv) by telefacsimile, using facsimile equipment providing written confirmation of receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at such Purchaser's address or telefacsimile number set forth on the signature page hereof, or at such other address or number as Purchaser shall have furnished to the Company in writing for such purpose, or (y) if to the Company, at its address or telefacsimile number set forth on the signature page hereof, to the attention of the President of the Company, or at such other address or number as the Company shall have furnished in writing to Purchaser for such purpose. (e) Counterparts. This Agreement may be executed in two or more counterparts, each of which may be executed by less than all of the parties hereto, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. (f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) Interpretation. The titles and section headings set forth in this Agreement are for convenience only. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. (h) Attorney's Fees. In the event suit is brought to enforce or interpret any part of this Agreement or any of the rights or obligations of any party hereunder, the prevailing party shall be entitled to recover as an element of such party's costs of suit, and not as damages, reasonable attorneys' fees and expenses, court costs and expert witness fees and costs. 8 9 (i) Survival of Representations and Warranties. The representations and warranties of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing; provided however, that such representations and warranties need only be accurate as of the date of such execution and delivery and as of the Closing. (j) Expenses. The Company and each Purchaser shall bear its own expenses incurred on its behalf with respect to this Agreement and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Common Stock Purchase Agreement as of the date first above written. OMNIS TECHNOLOGY CORPORATION, a Delaware Corporation By: /s/ PHILIP BARRETT ------------------------------- Philip Barrett Chairman of the Board 981 Industrial Road, Building B San Carlos, California 94070 9 10 PURCHASER ROCKPORT GROUP, L.P. By: /s/ GEOFFREY WAGNER -------------------------------- Its: -------------------------------- Address and Fax Number: -------------------------------- -------------------------------- -------------------------------- ( ) --------- --------------------- 10 11 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION 11 12 EXHIBIT B LIST OF PURCHASERS
Number of Purchaser Common Shares Aggregate Purchase Price - --------- ------------- ------------------------ Rockport Group 1,420,000 $ 355,000 Additional Purchasers Astoria Capital Partners, LP 1,000,000 $ 250,000 RCJ Capital Partners, LP 850,000 $ 212,500 Philip Barrett Charitable Remainder Trust 1,650,000 $ 412,500 Gwyneth Gibbs 80,000 $ 20,000 ----------- --------- TOTALS*: 5,000,000 $ 1,250,000 --------- -----------
* - In addition, 2,543, 344 Shares of Common Stock of the Company are being issued to Astoria Capital Partners, L.P. in consideration for the cancellation of the indebtedness of the Company currently held by the Company in favor of Astoria Capital Partners, L.P. 12 13 EXHIBIT C CERTIFICATE OF DESIGNATIONS SERIES A CONVERTIBLE PREFERRED STOCK 13 -----END PRIVACY-ENHANCED MESSAGE-----