-----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, HBcdB2LRmbsEF6E4vwyxk45YQLtvNORYYFD2QztDWkPLibNdSZ/rKMc/EDaO8Flr a1KOjmWWyV/paNU5m8VpVA== 0000950149-00-000025.txt : 20000110 0000950149-00-000025.hdr.sgml : 20000110 ACCESSION NUMBER: 0000950149-00-000025 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19991123 ITEM INFORMATION: FILED AS OF DATE: 20000107 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: 503672 BUSINESS ADDRESS: STREET 1: 981 INDUSTRIAL WAY STREET 2: BUILDING B CITY: SAN CARLOS STATE: CA ZIP: 94070-4117 BUSINESS PHONE: (650)632-7100 MAIL ADDRESS: STREET 1: 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 NOVEMBER 23, 1999 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): NOVEMBER 23, 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) 632-7100 ------------------------------------------------- (Former name or former address, if changed since last report) ================================================================= Item 5. Other Events. (a) On November 23, 1999, the Board of Directors of the Company (the "Board") appointed James W. Dorst ("Dorst") as a Class III director of the Company, to 1 2 fill a vacancy on the Board for a term expiring at the 2000 Annual Meeting of Stockholders of the Company. (b) As of November 23, 1999, the Board also appointed Mr. Dorst as the Chief Financial Officer and Chief Operating Officer of the Company. Copies of the employment agreement and stock option agreement entered into between the Company and Dorst are filed herewith as Exhibits 10.1 and 10.2. (c) On December 23, 1999, the Company obtained a $3,000,000 line of credit from Astoria Capital Partners, L.P. pursuant to the terms of a Credit Facility Agreement dated as of December 21, 1999. The line of credit has a term of six months, and the Company may draw up to $500,000 from the line of credit per month as set forth in the Credit Facility Agreement. In connection with the issuance of the line of credit, the Company issued a Promissory Note in the principal amount of up to $3,000,000 to Astoria Capital Partners, L.P. dated as of December 21, 1999. All principal and accrued interest on the Promissory Note is due and payable on May 31, 2000 or upon a Change of Control (as such term is defined in the Credit Facility Agreement), if earlier. The Promissory Note bears interest at 8% per annum and has a default rate of interest of 10% per annum. The Promissory Note is secured by certain assets of the Company. While any debt is outstanding or the line of credit remains in effect, except for any debt owing to the Lender or debt issued contemporaneously with payment of the debt in full and termination of the line of credit, the Company shall not incur any indebtedness without the written consent of Lender, except the Company may incur junior debt in the aggregate principal amount of up to $500,000 in connection with the purchase or lease of property (whether or not in the ordinary course of business). In addition, and also in connection with the issuance of the line of credit, the Company issued to Astoria Capital Partners, L.P. a Non-Transferable Warrant to purchase shares of capital stock of the Company. The Warrant may be exercised, and shares of capital stock of the Company will be issued upon exercise of the Warrant, only in connection with one or more Qualifying Offerings (as such term is defined in the Warrant) of securities of the Company. The Warrant may be exercised for up to $3,000,000 of shares of the capital stock of the Company issued in one or more Qualifying Offerings at the price per share of such securities in each such Qualifying Offering, as further provided and qualified by the Warrant. The Company has granted to Astoria Capital Partners, L.P. certain registration rights with respect to any shares of capital stock issued upon exercise of the Warrant as described in the Warrant. The Warrant terminates on May 31, 2001; in this connection the Company has no independent obligation to issue any securities, consummate any offering of its securities or accept any offer to issue or sell any of its securities on or before such date. Copies of the Credit Facility Agreement and forms of the Promissory Note and Warrant are filed herewith as Exhibits 10.3, 10.4 and 10.5; and the foregoing is only a summary of and is subject to all of the terms and conditions of such documents. 2 3 Item 7. Exhibits.
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 10.1 At-Will Employment Agreement between the Company and James W. Dorst dated as of November 23, 1999. 10.2 Nonincentive Stock Option Agreement between the Company and James W. Dorst dated as of November 23, 1999. 10.3 Credit Facility Agreement between the Company and Astoria Capital Partners, L.P. dated as of December 21, 1999. 10.4 Form of Promissory Note dated as of December 21, 1999 issued by the Company to Astoria Capital Partners, L.P. 10.5 Form of Warrant dated as of December 21, 1999 issued by the Company to Astoria Capital Partners, L.P.
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. OMNIS TECHNOLOGY CORPORATION Date: January 7, 2000 By: /s/ GWYNETH GIBBS --------------------------------- Gwyneth Gibbs, President 3 4 INDEX TO EXHIBITS FILED WITH THE CURRENT REPORT ON FORM 8-K DATED NOVEMBER 23, 1999
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 10.1 At-Will Employment Agreement between the Company and James W. Dorst dated as of November 23, 1999. 10.2 Nonincentive Stock Option Agreement between the Company and James W. Dorst dated as of November 23, 1999. 10.3 Credit Facility Agreement between the Company and Astoria Capital Partners, L.P. dated as of December 21, 1999. 10.4 Form of Promissory Note dated as of December 21, 1999 issued by the Company to Astoria Capital Partners, L.P. 10.5 Form of Warrant dated as of December 21, 1999 issued by the Company to Astoria Capital Partners, L.P.
4 EX-10.1 2 AT-WILL EMPLOYMENT AGREEMENT 1 EXHIBIT 10.1 AT-WILL EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 23, 1999 (the "Effective Date"), by and between OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and JAMES DORST (the "Employee"). Except as the context otherwise requires the term "Company" as used in this Agreement shall refer to Omnis Technology Corporation and its subsidiaries. In consideration of the mutual covenants contained in this Agreement, the Company and the Employee agree as follows: 1. Employment. The Company agrees to employ the Employee and the Employee agrees to be employed by the Company on the terms and conditions set forth in this Agreement. 2. Capacity. The Employee shall initially serve the Company as its Chief Financial Officer and Chief Operating Officer. The Employee shall report directly to the Chairman of the Board of Directors of the Company ("Chairman"). The Employee shall also serve the Company in such other or additional offices as the Employee may be requested to serve by the Board of Directors of the Company (the "Board of Directors"). In such capacity or capacities, the Employee shall perform such services and duties in connection with the business, affairs and operations of the Company as may be assigned or delegated to the Employee from time to time by or under the authority of the Board of Directors. 3. At-Will. The Employee's employment under this Agreement by the Company ("Employment") shall commence on the Effective Date and shall be terminable at-will but otherwise shall be subject to all of the provisions of this Agreement. "Terminable at will" means that Employee is free to end the Employment of the Employee at any time for any reason or no reason, with or without cause and with or without notice; and similarly the Company may end the Employment of the Employee at any time for any legal reason, with or without cause and with or without notice. 4. Compensation and Benefits. The regular compensation and benefits payable to the Employee by the Company under this Agreement shall be as follows: (a) Salary. Commencing on the Effective Date, for all services rendered by the Employee under this Agreement, the Company shall pay the Employee a base salary (the "Base Salary") at the annual rate of One Hundred Fifty Thousand Dollars ($150,000). The Base Salary shall be payable in periodic installments in accordance with the Company's usual practices for its senior employees. The Board of Directors of the Company further may, but shall not be obligated to, authorize additional compensation for Employee in the form of bonuses or otherwise as the Board deems appropriate in its sole discretion from time to time. 1 2 (b) Stock Option. The parties acknowledge that as of the Effective Date the Board of Directors appointed the Employee as a Director of the Company to fill a vacancy on the Board of Directors, and that the Company granted to the Employee (as a director) as of the Effective Date options to purchase 96,825 shares of the Company's Common Stock ("Common Stock") pursuant to a separate Stock Option Agreement between the Company and the Employee; such options shall vest over a period of three (3) years or sooner as specified in the Option Agreement and shall have an option exercise price of 100% percent of the closing price of the Common Stock on the Effective Date. Neither the Employee's position as a director of the Company nor such Option Agreement shall affect the terms or conditions or the at-will nature of the Employment of the Employee. (c) Regular Benefits. The Employee shall also be entitled to participate in any employee benefit plans, medical insurance plans, retirement plans and other benefit plans which the Company may from time to time have in effect for senior employees or for all or most of its employees. Such participation shall be subject to the terms of the applicable plan documents, generally applicable policies of the Company, applicable law and the discretion of the Board of Directors, the Compensation Committee of the Board of Directors or any administrative or other committee provided for by any such plan. Nothing in this Agreement shall be construed to create any obligation on the part of the Company to establish any such plan or to maintain the effectiveness of any such plan which may be in effect from time to time. (d) Vacation. The Employee shall be entitled to the same weeks of paid vacation during each full year that Employee is employed hereunder as generally available to senior managerial employees of the Company with the same period of service. In the event the employment of Employee is terminated, Employee shall be paid for all accrued and unused vacation time. (e) Expenses. The Company shall reimburse Employee for all appropriately documented, reasonable business expenses incurred by Employee in accordance with the established the Company policies for managerial employees which the Company may amend in its sole discretion. (f) Taxation of Payments and Benefits. The Company shall have the right to make deductions, withholdings and tax reports with respect to payments and benefits under this Agreement to the extent that it reasonably and in good faith believes it is required to do so under applicable law. Payments to Employee under this Agreement shall be in amounts net of any such deductions or withholdings. Nothing in this Agreement shall be construed to require the Company to make any payments to compensate the Employee for any adverse tax effect associated with any payment or benefit or for any deduction or withholding from any payment or benefit. 2 3 (g) Exclusive. The Employee shall not be entitled to any payment or benefit other than as provided in this Agreement. 5. Duties. During the Employment of the Employee, the Employee shall, subject to the direction and supervision of the Chairman of the Company or the Chairman's designee, devote the Employee's full business time, best efforts and business judgment, skill and knowledge to the advancement of the Company's interests and to the discharge of the Employee's duties and responsibilities under this Agreement. Employee shall further duly, punctually and faithfully perform and observe any and all rules and regulations which the Company may now or shall hereafter establish governing the conduct of its business or its employees. Employee's performance of his duties shall at all times be rendered to the Company's satisfaction. 6. Confidential Information; Non-Competition. (a) Confidential Information. For these purposes "Confidential Information" shall be collectively defined as any and all technical or engineering information, know-how, data, designs, diagrams, plans, specifications, structures, computer codes, documents, patent applications, trade secrets, ideas, concepts, inventions, products, prototypes, processes, formulae, works in process, systems, technologies, marketing plans, the identity of or other information regarding actual or potential customers or trade contacts, business or other financial information, and other confidential and proprietary information of the Company or any of its customers, in whatever form, whether disclosed by the Company or otherwise observed or learned by Employee during the course of employment, and whether or not labeled or identified as confidential or proprietary. "Confidential Information" shall also include any confidential or proprietary information of a third party disclosed to the Company or any of its customers pursuant to a nondisclosure or confidentiality agreement to which the Company is a party; and any Invention as herein defined. (b) Protection of Confidential Information. (i) Employee acknowledges and agrees that the Confidential Information of the Company is proprietary, constitutes a valuable asset of the Company, and is the sole property of the Company. Without limiting the foregoing, Employee acknowledges and agrees that all writings and other tangible materials in any form that contain Confidential Information of the Company that are produced by Employee or others or that otherwise come into Employee's possession are and will remain the property of the Company, and will be treated as Confidential Information. (ii) Employee agrees that at all times during and after the Employment of the Employee, Employee shall hold in trust, maintain as confidential and not disclose to any third person or entity or make any use of any of the Confidential Information, except for the benefit of the Company or as is strictly required in the course of the Employment of the Employee. Employee acknowledges that the unauthorized disclosure of 3 4 Confidential Information may be highly prejudicial to their interests, an invasion of privacy, and an improper disclosure of trade secrets. (c) Injunction. The Employee agrees that it would be difficult to measure any damages caused to the Company which might result from any breach by the Employee of the promises set forth in this Section, and that in any event money damages would be an inadequate remedy for any such breach. Without limiting any other remedies or rights of the Company hereunder, the Employee agrees that if the Employee breaches, or proposes to breach, any portion of this Agreement, the Company shall be entitled to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company. 7. Inventions. (a) Inventions. For purposes of this Agreement, "Inventions" means any and all inventions, discoveries, designs, developments, innovations, concepts, improvements, techniques, processes, systems, structures, technologies, software, hardware, formulas, know-how, products, work product and data, whether or not patentable or reduced to practice or in a commercially useable form, and all original works of authorship, whether or not copyrightable, and all derivative works thereof, which result from work performed by Employee for the Company (either alone or in cooperation with others) or with the tools or equipment of the Company or which relate to or may be useful in any business or any actual or demonstrably anticipated research or development engaged in or planned by the Company. (b) Disclosure. Employee shall promptly disclose in writing to the Chairman or Board of Directors any and all Inventions made, conceived, reduced to practice, or learned by Employee, either alone or in cooperation with others, during the period of the Employment of the Employee with the Company (including off-duty hours) that to any extent relate to or may be useful in any business or any actual or demonstrably anticipated research or development engaged in or planned by the Company, even if any such invention is claimed for any reason to belong to Employee or to a person or entity other than the Company. (c) Assignment. Employee agrees that all Inventions made, conceived, reduced to practice, or learned by Employee during the Employment of the Employee (including off-duty hours), either alone or in cooperation with others, are "works made for hire" and belong to and are the sole property of the Company and are Inventions of the Company subject to the provisions of this Agreement. Employee hereby assigns to the Company, without royalty or further compensation, all right, title, and interest Employee has or may have or may acquire in and to any and all such Inventions and all modifications and enhancements and derivations thereof, including but not limited to patents and copyrights. Employee agrees that the Company or its designee will be the sole owner of all domestic and foreign patents, patent rights, copyrights, and all other rights pertaining to all such Inventions. 4 5 (d) Evidence of Assignment. At the request of the Company, Employee agrees to sign and deliver to the Company, either during or subsequent to the Employment of the Employee, such other documents or instruments as the Company considers desirable to evidence the assignment to the Company of any and all rights of Employee, if any, in any Inventions and the Company's ownership of the Inventions. Employee further agrees as to all such Inventions to assist the Company as requested, either during or subsequent to the Employment of the Employee, in obtaining, registering, and from time to time enforcing in any country, the Company's rights to the Inventions, including without limitation the testifying in a suit or other proceeding involving any Invention. If such assistance is rendered by Employee subsequent to the Employment of the Employee with the Company, Employee shall be reimbursed for all reasonable expenses incurred and for any and all lost wages or salary related thereto. (e) California Labor Code Section 2870. Any provision in this Agreement that requires Employee to assign rights to an Invention shall not apply to any Invention that is exempted pursuant to the provisions of California Labor Code Section 2870, the text of which is attached to this Agreement as Exhibit A. This section provides that the requirement to assign "shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) result from any work performed by the employee for the employer." 8. Prior Knowledge and Inventions. Except as is disclosed on Schedule 1 to this Agreement, Employee has no knowledge of the Confidential Information, other than information Employee has learned or observed from the Company. Employee has disclosed on Schedule 1 a complete list of all inventions, original works of authorship, developments, improvements and trade secrets that Employee claims are proprietary to Employee, and that Employee desires to exclude from the application of this Agreement. Employee represents that this list is complete to the best of his knowledge, and that the exclusion of any inventions from the list will not materially affect Employee's ability to perform his obligations under this Agreement. The Company agrees to receive and hold all such disclosures in confidence. 9. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict with Employee's obligations to the Company under this Agreement, except as disclosed on Schedule 1. Employee shall not disclose to the Company, or use, or induce the Company to use, any proprietary or confidential information or trade secrets of others. Employee represents and warrants that Employee has returned all property and confidential information belonging to all prior or concurrent companies employing or engaging Employee. 10. Non-Competition and Non-Solicitation. At all times during which the Employee is employed by the Company and for one (1) year after termination of the 5 6 Employment of the Employee hereunder, except in connection with such Employee's duties as an employee or consultant of the Company or its subsidiaries, the Employee (i) will not, directly or indirectly, whether as an officer, director, consultant, agent, employee, contractor, owner, partner, joint venturer or stockholder of another entity, engage, participate, assist or invest in any Competing Business (as hereinafter defined), other than as a stockholder of less than one percent (1%) of the equity securities of a publicly held corporation; (ii) will not in any manner directly or indirectly solicit any of the Company's employees for a Competing Business or otherwise induce or attempt to induce such employees to terminate their employment with the Company during the period of Employment of the Employee and for a period of one (1) year thereafter except as described on Schedule 1; and (iii) will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Company. The Employee understands that the restrictions set forth in this Section are intended to protect the Company's interest in its Confidential Information and established employee, customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for this purpose. "Competing Business" shall mean a business which directly competes against the application development or RAD tool products designed or distributed by the Company or any of its subsidiaries during the period of employment of the Employee. 11. Cooperation. During and after the Employment of the Employee, (i) the Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that occurred while the Employee was employed by the Company, and (ii) the Employee shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority related to events that occurred during the Employment of the Employee. The Employee's cooperation shall include, but not be limited to, meeting with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. The Company shall reimburse the Employee for any actual out-of-pocket expenses incurred by the Employee in connection with this Section. 12. Termination. The Employment of the Employee shall terminate as set forth in this Section: (a) Termination by the Company for Cause. In addition to its other rights and remedies, the Company may terminate the employment of Employee immediately "for cause" upon the occurrence of any of the following events: (i) Materially dishonest statements or acts of the Employee with respect to the Company or any affiliate; (ii) Unethical practices or conduct by the Employee in connection with the business of the Company or any affiliate; 6 7 (iii) The commission of any felony (excluding DWI and similar traffic offenses) or any crime involving moral turpitude; (iv) The use of alcohol or drugs by the Employee if the Company determines, in its sole discretion, that such use of such alcohol or drugs materially affects the performance of Employee's duties under this Agreement or otherwise violates Company policy; (v) Gross negligence or willful misconduct of the Employee with respect to the Company or any affiliate of the Company; (vi) The imparting, disclosure or use of any Confidential Information in material violation of this Agreement; or (vii) Material breach by the Employee of any of the Employee's obligations under this Agreement. (b) Termination At Will by Either Party. Either party also may terminate this Agreement without cause immediately upon written notice to the other party at any time without cause. (c) Other Events of Termination. This Agreement shall also terminate in the event of the death of Employee; or the medically determinable physical or mental impairment of Employee which prevents Employee from fully performing the essential functions of his position with the Company, which impairment can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months. (d) No Termination Benefits. Except as otherwise required by law, all compensation and other benefits payable to the Employee under this Agreement shall terminate on the date of termination of the Employment of the Employee. 13. Duties Upon Termination. (a) Documents. Upon termination of the Employment of Employee, Employee shall not retain and shall promptly and without request deliver to the Company all documents and data and all copies thereof pertaining to (i) his employment, (ii) the Confidential Information, and (iii) the Inventions, whether prepared by Employee or otherwise in the possession or control of the Employee or the Employee's agent. The Employee also agrees to sign and deliver the Termination Certification attached hereto as Exhibit B to this Agreement or a substantially similar certification as may be requested by the Company. 7 8 (b) Continuing Obligations. The Employee further agrees that following termination of his employment, he shall continue to be bound by the terms and restrictions of this Agreement relating to nonsolicitation of employees except as described on Schedule 1, Confidential Information and Inventions. 14. Integration. This Agreement and all exhibits and schedules attached hereto contain the entire agreement of the parties relating to the subject matter hereof and supersede any and all other agreements, discussions or understandings of any kind between the parties with respect thereto; provided however that (a) this Agreement shall not supersede any separate stock option agreement between the Company and the Employee, and (b) any confidential or proprietary information disclosed between the parties pursuant to any prior or superseded agreement shall be part of the "Confidential Information" for all purposes hereof. No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. 15. Assignment; Successors and Assigns. This Agreement and the rights and obligations of the Employee under this Agreement are personal and may not be assigned, transferred, pledged or encumbered by the Employee. The Company shall be entitled to assign any and all of its rights and obligations hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto, the officers, directors, employees, agents, owners, shareholders, representatives, successors and assigns of the Company, and the heirs, devisees, spouses, agents, representatives, successors and assigns of the Employee. 16. Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 17. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. 18. Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to the Employee at the last address the Employee has filed in writing with the Company or, in the case of the Company, at its principal place of business in 8 9 the United States, attention of the Chairman, and shall be effective on the date of delivery in person or by courier or five (5) days after the date mailed. 19. Amendment. This Agreement may be amended or modified only by a written instrument signed by the Employee and by a duly authorized representative of the Company. 20. Governing Law. This Agreement shall be governed by the laws of the State of California without reference to principles of conflicts of law. 21. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document. 22. Legal Counsel; Certifications. a. Employee acknowledges, represents and warrants that he has had the opportunity to be represented by and to fully consult with independent legal counsel of Employee's own choosing in connection with the terms and conditions of this Agreement and all matters or issues related thereto; and that Employee has conducted such an independent investigation of the Company and its business and prospects as Employee has deemed necessary. b. EMPLOYEE FURTHER CERTIFIES THAT EMPLOYEE HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND FREELY AND VOLUNTARILY AGREES TO THESE TERMS. EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE HAS REVIEWED EXHIBIT A AND SCHEDULE 1 AND IN THIS CONNECTION HAS RECEIVED A COPY OF THE WRITTEN NOTIFICATION TO EMPLOYEE CONTAINING THE TEXT OF CALIFORNIA LABOR CODE SECTION 2870. 9 10 IN WITNESS WHEREOF, this Employment Agreement has been executed and entered into by the parties as of the date first above written. OMNIS TECHNOLOGY CORPORATION By: /s/ GWYNETH GIBBS --------------------------------- Gwyneth Gibbs, President EMPLOYEE: /s/ JAMES DORST ------------------------------------ James Dorst 10 11 EXHIBIT A WRITTEN NOTIFICATION TO EMPLOYEE In accordance with California Labor Code Section 2870, you are hereby notified that the Employment Agreement between you and Omnis Technology Corporation (the "Company") does not require you to assign to the Company any invention for which no equipment, supplies, facility, or trade secret information of the Company was used, and that was developed entirely on your own time, and that does not relate to the business of the Company or to the Company's actual or demonstrably anticipated research or development, and does not result from any work performed by you for the Company. The text of California Labor Code Section 2870 is set forth below: "CALIFORNIA LABOR CODE Section 2870 INVENTION ON OWN TIME -- EXEMPTION FROM AGREEMENT. "(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: "(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or "(2) Result from any work performed by the employee for the employer. "(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable." I hereby acknowledge receipt of this written notification. Dated: As of ______________, 1999 ____________________________ 1 12 SCHEDULE 1 In the event the Company is sold, the following employees (or future employees) may be solicited, if such solicitation would not materially impact the sale: [INTENTIONALLY OMITTED] 1 13 EXHIBIT B TERMINATION CERTIFICATION This is to certify that I do not have in my possession, nor have I failed to return, any Confidential Information as defined in the Employment Agreement between Omnis Technology Corporation and me ("Agreement") or any copies of such information, or other documents or materials, equipment, or other property belonging to the Company or any of its customers or subject to any agreement between the Company and any third party. I further certify that I have complied with and will continue to comply with the terms of the Agreement which remain enforceable by their terms following termination of my employment, including but not limited to (a) the disclosure and reporting of any Inventions as defined in the Agreement, and (b) all confidentiality, nondisclosure and/or use restrictions imposed by the Agreement. Dated: ---------------------------- ------------------------------- Name: ------------------------------- EX-10.2 3 NONINCENTIVE STOCK OPTION AGREEMENT 1 EXHIBIT 10.2 OMNIS TECHNOLOGY CORPORATION INCENTIVE STOCK OPTION AGREEMENT This Incentive Stock Option Agreement ("Agreement") is made and entered into on November 23, 1999 ("Grant Date") by and between Omnis Technology Corporation, a Delaware corporation (the "Company"), and JAMES DORST ("Optionee"). W I T N E S S E T H: A. The Board of Directors of the Company ("Board") has adopted the Omnis Technology Corporation 1999 Stock Option Plan to create additional incentives for certain valued employees, directors, consultants and advisors of the Company or its parent or subsidiary and to promote the financial success and progress of the Company and such parents and subsidiaries. For purposes hereof the "Plan" and all section references therein shall be defined as said 1999 Stock Option Plan as amended or superseded during the term of this Agreement. B. Optionee is a valued employee and director of the Company or a parent or subsidiary thereof, and this Incentive Stock Option Agreement is executed pursuant to, and is intended to carry out the purposes of, the Plan in connection with the grant by the Company to Optionee of an incentive stock option as defined by Section 422 of the Internal Revenue Code of 1986, as amended or superseded (the "Code"). NOW, THEREFORE, it is agreed as follows: 1. Grant of Option. Subject to and upon the terms, conditions and restrictions set forth in this Agreement and the Plan, the Company hereby grants to Optionee as of the Grant Date an incentive stock option ("Option") to purchase up to Ninety Six Thousand Eight Hundred Twenty Five (96,825) shares ("Option Shares") of the common stock of the Company during the Term hereof (as defined in Section 3 hereof) at the Option Price of Six Dollars and Eighty Seven and Five Tenths Cents ($6.875) per share. For these purposes "Option Shares" also shall include such stock or other securities as defined by the Plan. 2. Right to Exercise; Vesting. a. Subject to the expiration or earlier termination of the Term of the Option hereunder and to Section 2(b) hereof, Optionee shall have the right to exercise the Option in accordance with the following three (3) year vesting schedule ("Vesting Period"): 1 2 (i) Optionee shall have no right to exercise any part of the Option at any time prior to the expiration of one (1) year from the Grant Date; (ii) The Option shall become exercisable with respect to Thirty Three and Three Hundred Thirty Three Thousandths Percent (33.333%) of the Option Shares upon the expiration of one (1) year from the Grant Date; and (iii) The Option thereafter shall become exercisable with respect to an additional Two Point Seven Hundred Seventy Seven Thousandths Percent (2.777%) of the Option Shares on the last day of each month thereafter. b. Exercisable installments may be exercised by Optionee in whole or in part and to the extent not exercised shall accumulate and be exercisable as provided. The Company shall not be required to issue fractional shares at any time; and any fractional shares remaining in the Option following any exercise thereof shall be rounded down to the next nearest whole number of Shares. 3. Option Term. The specified term of the Option ("Term") shall be the period commencing as of the Grant Date and ending on the earlier of (i) the expiration of ten (10) years from the Grant Date ("Expiration Date") or (ii) the termination of this Agreement in accordance with Section 4 hereof. Upon the expiration of the Term or earlier termination of the Option as herein provided, the Option shall cease to be exercisable and shall be of no further force or effect. 4. Earlier Termination of Option Term. a. The Term of the Option shall terminate prior to the Expiration Date upon the later to occur of any of the following events during the Vesting Period: (i) Termination of Directorship Other Than For Cause. If (i) Optionee resigns as a director of the Company, or (ii) Optionee is removed as a director of the Company without cause as defined by applicable law, or (iii) Optionee is not re-elected as a director of the Company by the shareholders following the end of the term of his directorship ("Director Termination"), then the Option shall terminate and cease to be exercisable upon the earlier of (A) the expiration of sixty (60) days from the date of such Director Termination or (B) the Expiration Date. No additional right to exercise the Option with respect to any Option Shares shall vest from and after the date of such Director Termination. The Term of the Option shall not be affected by any Director Termination occurring after the end of the Vesting Period. (ii) Termination of Employment or Engagement. If (i) the employment of Optionee with the Company is terminated for any reason, provided Optionee was so employed as of the date of the Director Termination; 2 3 or (ii) the engagement of Optionee as a consultant of the Company pursuant to a written consulting agreement is terminated for any reason, provided Optionee was so engaged as of the date of the Director Termination; as the case may be, then the Option shall terminate and cease to be exercisable upon the earlier of (A) the expiration of sixty (60) days from the date of such termination of employment or engagement or (B) the Expiration Date. No additional right to exercise the Option with respect to any Option Shares shall vest from and after the date of such termination of employment or engagement. The Term of the Option shall not be affected by any termination of employment or engagement occurring after the end of the Vesting Period. b. Removal as a Director For Cause. Notwithstanding Section 4(a) hereof, if Optionee is removed as a director "for cause" as defined by applicable law at any time during the Term or Optionee resigns as a director while his removal for cause is pending, then the Option shall terminate and cease to be exercisable upon the earlier of (i) such termination of the directorship of Optionee or (ii) the Expiration Date. No additional right to exercise the Option with respect to any Option Shares shall vest from and after the date of such termination of the directorship of Optionee. c. Death or Disability. Notwithstanding Section 4(a) hereof, in the event of the death or permanent and total disability of Optionee, then the Option shall terminate and cease to be exercisable as provided in the Plan. d. No Effect on Relationship. Nothing herein shall alter the "at will" nature of the employment of Optionee by the Company; shall be deemed any obligation by the Company to enter into or continue any consulting agreement with Optionee; or shall be deemed an agreement that Optionee shall be elected as or continue to be a director of the Company. 5. Non-Transferable. The Option shall not be transferable or assignable by Optionee other than by will or the laws of descent and distribution, and the Option may be exercised during the lifetime of Optionee solely by Optionee. Subject to the foregoing, all transfers or assignments or attempted transfers or assignments of the Option or this Agreement shall be void ab initio. 6. Plan; Controlling Terms. a. The Option granted hereunder and this Agreement shall be governed by and subject to each and all of the terms and provisions of the Plan, which is hereby incorporated by reference in its entirety. All capitalized or other terms not defined herein shall have the same meaning as in the Plan. In the event of any conflict between the Plan and this Agreement, the Plan shall control, except if any provision of the Plan conflicts with Section 4 hereof related to earlier termination of the Option, such Section 4 shall control. Optionee acknowledges receipt of a copy of the Plan and the opportunity to 3 4 review the Plan and to consult with his or her legal advisors concerning the Plan and this Agreement. b. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE PLAN CONTAINS IMPORTANT TERMS AND PROVISIONS THAT WILL APPLY TO AND CONTROL THE OPTION AND THIS AGREEMENT. THOSE TERMS INCLUDE WITHOUT LIMITATION IMPORTANT CONDITIONS AND LIMITATIONS ON THE RIGHT OF OPTIONEE TO EXERCISE THE OPTION; IMPORTANT RESTRICTIONS ON THE RIGHT OF OPTIONEE TO TRANSFER THE OPTION OR THE OPTION SHARES RECEIVED UPON EXERCISE OF THE OPTION; EARLY TERMINATION OF THE OPTION FOLLOWING THE OCCURRENCE OF CERTAIN EVENTS, INCLUDING TERMINATION OF THE EMPLOYMENT OF OPTIONEE FOR ANY REASON; PROCEDURES FOR EXERCISING THE OPTION; TAX WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT. 7. Tax Status of Option. a. The Option is intended to be an incentive stock option as defined by Section 422 of the Code for United States tax purposes, but the Company does not represent or warrant that the Option so qualifies. Optionee should consult with his or her own tax advisors regarding the tax effects of the Option and the requirements for favorable tax treatment under Section 422 and other provisions of the Code and other tax consequences of the Option under applicable law, including but not limited to holding period requirements. In the event that the aggregate exercise price of the Option Shares under the Option and all other incentive stock options held by Optionee (whether granted by the Company or any parent or subsidiary corporation thereof) exceeds the dollar amount or other limitation then applicable under the Code when such options are first exercisable or in the event Optionee does not meet all requirements when applicable under the Code, all or part of the Option may not qualify as an incentive stock option under the Code. b. Optionee hereby acknowledges that the rules and requirements of Section 83 of the Code, including without limitation the election available under Section 83(b) thereof, may be applicable to the receipt of Option Shares by Optionee pursuant to this Agreement and the Plan. In the event that the Option or any part thereof is not classified as an incentive stock option under Section 422 of the Code, Optionee acknowledges that the exercise of the Option and the filing or failure to file an election under Code Section 83(b) in timely manner may result in adverse tax consequences to Optionee. 4 5 8. Acceleration of Exercise Right In Certain Events. a. Acceleration Events. Notwithstanding any other right to exercise the Option, the Option shall become fully exercisable during the fifteen (15) day period ("Accelerated Exercise Period") immediately prior to the scheduled consummation of: (i) The sale or other transfer of more than Fifty Percent (50%) of the capital stock of the Company in one or more related transactions for material consideration to any person or entity or group of persons or entities not previously shareholders of the Company and not owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; or (ii) The sale or other transfer of all or substantially all of the assets of the Company in one or more related transactions not in the ordinary course of the business of the Company to unrelated third parties, whether by sale, exchange, merger, consolidation, reorganization, dissolution or liquidation (collectively "Acceleration Events"); other than (1) any public offering of capital stock of the Company in a Public Market (as defined in the Plan); (2) any transaction in which the Company is a surviving parent of the transferee corporation or entity or is a surviving subsidiary of a transferee parent corporation or entity owned or controlled by a majority of the previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; (3) any sale or transfer of the capital stock owned or controlled by the majority shareholder or shareholders of the Company to trusts or comparable entities for the primary benefit of such shareholders or their family members or to the estate, heirs or devisees of any such shareholder in the event of his or her death; or (4) any transaction in which the Company reincorporates in another jurisdiction or engages in other internal reorganization or changes in corporate structure without the receipt of consideration; none of which shall be Acceleration Events hereunder. b. Substitution or Assumption of Option. Notwithstanding any other provision hereof, no accelerated exercise of the Option shall be permitted if the terms of the Acceleration Event provide, as a condition of the consummation of such transaction, that the Option (or class of outstanding options of which the Option is a part) shall either be assumed by a successor corporation (or parent thereof) or be replaced with a comparable substitute option to purchase shares of capital stock of a successor corporation (or parent thereof), which substitution or assumption shall comply with Sections 422 and 424 of the Code; and the Option may be assumed or replaced pursuant to such transaction. Determination of comparability in the case of any substitute option shall be made by the Board of Directors of the Company and shall be final, binding and conclusive on Optionee. 5 6 Optionee agrees to execute and deliver such documents as reasonably required to effect such assumption or substitution hereunder. c. Conditional Exercise; Termination. Any permitted exercise of the Option during the Accelerated Exercise Period hereunder shall be conditioned upon the consummation of the Acceleration Event and shall be effective only immediately prior to such consummation, provided that Optionee may indicate in writing that such exercise is unconditional with respect to all or part of the Option then exercisable without regard to the acceleration provisions of this Section. Upon consummation of the Acceleration Event, the Option shall terminate and cease to be exercisable, unless assumed by the successor corporation or parent thereof. In the event such Acceleration Event is not consummated, the Option shall revert to being exercisable in accordance with the vesting schedule. d. Exercise Period. In the event the expiration or earlier termination of the Term of the Option shall occur prior to the expiration of the Accelerated Exercise Period provided in this Section, then the Accelerated Exercise Period shall be shortened to said expiration or earlier termination of the Term. 9. Limitations on Share Transfer; Mandatory Notice of Disposition. Optionee shall transfer or dispose of the Option Shares only in accordance with the provisions of this Agreement and the Plan. Without limiting the foregoing, mandatory notice of disposition of any Option Shares must be made to the Company as provided in the Plan and such disposition may be subject to tax withholding or payments by Optionee. 10. Securities Laws; Restrictions on Grant or Issuance. THE RESTRICTIONS ON THE TRANSFER OF THE OPTION OR THE OPTION SHARES SHALL BE IN ADDITION TO ANY OTHER LIMITATIONS ON TRANSFER OR EXERCISE OF THE OPTION OR ISSUANCE OR TRANSFER OF THE OPTION SHARES IMPOSED BY APPLICABLE FEDERAL AND STATE SECURITIES LAWS. THE GRANT OF THE OPTION AND THE EXERCISE OF THE OPTION AND THE ISSUANCE OF THE OPTION SHARES UPON EXERCISE OF THE OPTION AND ANY RESALE OR OTHER TRANSFER OF SUCH OPTION SHARES BY OPTIONEE SHALL BE SUBJECT TO COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF FEDERAL OR STATE LAW WITH RESPECT TO SUCH SECURITIES. Notwithstanding any contrary provision of this Agreement: a. Optionee understands that since the Option is not transferable, and since the Option Shares have not been and may not be registered or exempt under applicable statutes, Optionee may bear the economic risk of the investment for an indefinite period of time. The Option Shares may not be sold or otherwise disposed of until such time as the Option Shares are registered under the Securities Act of 1933 ("Securities Act") or the Option Shares may be sold pursuant to an applicable exemption from the registration requirements of the Securities Act. Optionee understands that the 6 7 Company has no obligation to file a registration statement under the Securities Act for the Option or the Option Shares or to otherwise assist Optionee in complying with any exemption from registration. b. Optionee represents and warrants that the Option is being acquired and the Option Shares will be acquired upon exercise for his or her own account and not with a view to or for sale in connection with any distribution of such securities. Optionee further acknowledges that any investment in the Common Stock of the Company is inherently speculative and illiquid and subject to material risks. c. As a condition to the exercise of the Option, the Company may require Optionee to satisfy any qualifications that may be necessary or appropriate in the sole judgment of the Company or its counsel to evidence compliance with any applicable law or regulation and to make any written representation or warranty with respect thereto as may be requested by the Company. d. Notwithstanding any contrary provision hereof, the inability of the Company with reasonable efforts to obtain approval from any regulatory body having authority deemed by the Company to be necessary for the lawful issuance and sale of any Option Shares pursuant to the Option shall relieve the Company of any liability in respect of the non-issuance or sale of the Option Shares as to which such approval shall not have been obtained. 11.Assignment; Binding Effect. a. The Company may transfer or assign any of its rights or obligations under this Agreement or the Plan. Optionee shall have no right to transfer or assign any of the rights and obligations of Optionee under the Option or this Agreement, subject to Section 5 hereof in the case of a will or the laws of descent and distribution. b. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties hereto and the officers, directors, employees, shareholders, owners, agents, representatives, parents, subsidiaries, affiliates, successors and assigns of the Company, and the spouses, representatives, executors, administrators, heirs, devisees, agents, successors and assigns of Optionee. 12. Representations and Warranties. a. Optionee represents and warrants that he or she has read the Plan and this Agreement and has had the opportunity to consult with his or her legal advisors concerning the legal and tax effects of the Plan and this Agreement and the Option. b. Each party represents and warrants that such party has the full right, power, legal capacity and authority to enter into and execute this Agreement and to 7 8 discharge all of its obligations under the terms hereof, and that such party does not have any outstanding obligation and is not a party to any outstanding agreement which obligation or agreement is inconsistent with this Agreement. This Agreement has been duly executed and delivered by said party, and constitutes its valid and legally binding agreement and obligation and is enforceable in accordance with its terms. 13. Miscellaneous. a. This Agreement together with the Plan sets forth the entire agreement of the parties relating to the subject matter hereof, subject to the provisions of the Plan; and the Plan and this Agreement shall supersede any prior discussions, understandings and agreements concerning the grant of stock options or the issuance of option stock between the parties, provided however that this Agreement shall not supersede and shall be in addition to any separate fully executed written stock option agreement between the parties pursuant to any separate stock option grant by the Company. This Agreement may be amended by further written agreement signed by each of the parties. b. This Agreement shall be construed in accordance with and governed by the laws of the State of California without reference to the principles of conflicts of law. c. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held by the final judgment of a court of competent jurisdiction to be invalid or unlawful or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect and shall be construed to give the fullest effect to the purpose of the Plan and this Agreement and the intended qualification of the Plan and this Agreement pursuant to Section 422 of the Code and pursuant to Section 25102(o) of the California Corporations Code and the respective regulations and rules thereunder (as amended or superseded). d. No remedy conferred by this Agreement or the Plan shall be exclusive of any other remedy, and each and all such remedies shall be cumulative. The waiver of any breach or violation of this Agreement in whole or in part shall not operate as a waiver of any subsequent breaches or violations of the same or a different kind. Any exercise or failure to exercise by a party of any rights or remedies under this Agreement shall not operate as a waiver of the right of such party to exercise the same or different rights or remedies in a subsequent event. e. Both parties agree to execute any additional documents or instruments necessary or appropriate to fully effectuate out the purposes of this Agreement and which are consistent with the Plan. 8 9 f. Section headings in this Agreement are for the convenience of the parties and are not part of the agreement of the parties and shall not be used in the construction hereof. Whenever in this Agreement the context requires, references to the plural shall include the singular and the singular the plural, and each gender shall include all other genders. No provision in this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. g. THIS AGREEMENT AND THE TERMS AND CONDITIONS HEREOF ARE CONFIDENTIAL AND OPTIONEE SHALL NOT DISCLOSE ANY OF THE TERMS OR CONDITIONS HEREOF TO ANY OTHER EMPLOYEE OF THE COMPANY OR TO ANY OTHER PERSON FOR ANY PURPOSE, OTHER THAN TO THE SPOUSE, LEGAL COUNSEL OR ACCOUNTING AND FINANCIAL ADVISORS OF OPTIONEE, OR TO THE APPROPRIATE EMPLOYEES OR REPRESENTATIVES OF THE COMPANY AS NECESSARY IN CONNECTION WITH THE ENFORCEMENT, MODIFICATION OR EXERCISE OF THIS AGREEMENT, OR AS REQUIRED IN CONNECTION WITH LEGAL PROCEEDINGS IN WHICH OPTIONEE IS A PARTY OR WITNESS. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and delivered in duplicate on its behalf by its duly authorized officer, and Optionee has also executed and delivered this Agreement in duplicate, all on the date first above written. OMNIS TECHNOLOGY CORPORATION By: /s/ GWYNETH GIBBS --------------------------------- Name: Gwyneth Gibbs ----------------------------- Title: President --------------------------- OPTIONEE /s/ JAMES DORST ------------------------------------ Name: JAMES DORST 9 10 CONSENT OF SPOUSE I, Amy J. Christensen, the spouse of JAMES DORST ("Optionee"), have read and approved the foregoing Incentive Stock Option Agreement between Omnis Technology Corporation ("Company") and my spouse and the Omnis Technology Corporation 1999 Stock Option Plan. In consideration of granting of the Option to my spouse to purchase shares of the common stock of the Company under the terms and conditions in the Agreement and the Plan, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights under the Agreement and the Plan and any stock issued thereunder, and agree to be fully bound by the provisions of the Agreement and the Plan insofar as I may have any rights under such Agreement and the Plan or in any stock issued thereunder under any community property laws or similar laws relating to marital property then in effect. I further acknowledge that in the event of the exercise of such Option, such shares of the common stock of said Company shall be issued in the name of my spouse and that the Company shall have no other obligations with respect thereto. Dated: January 5, 2000 --------------------------------- /s/ AMY J. CHRISTENSEN - --------------------------------------- Name: Amy J. Christensen --------------------------------- 10 EX-10.3 4 CREDIT FACILITY AGREEMENT 1 EXHIBIT 10.3 CREDIT FACILITY AGREEMENT This CREDIT FACILITY AGREEMENT (the "Agreement") is entered into as of December 21, 1999 by and among OMNIS TECHNOLOGY CORPORATION, A DELAWARE CORPORATION (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P., A CALIFORNIA LIMITED PARTNERSHIP ("Lender"). In consideration of the premises and the mutual covenants and agreements herein set forth, the parties hereto agree as follows: 1. CREDIT FACILITY AMOUNT AND TERMS. 1.1. AMOUNT. During the Availability Period described below, Lender will provide a line of credit to the Company ("line of credit"). The amount of the line of credit is Three Million Dollars ($3,000,000) (the "Commitment"). This is a non-revolving line of credit. Any amount borrowed, even if repaid before the Maturity Date of the line of credit, permanently reduces the remaining available line of credit. 1.2. ADVANCES; DISBURSEMENTS. During the first ten (10) days of each month of the Availability Period (except for December 1999, during which advances may be requested until December 31), the Company may request one or more advances in an aggregate monthly amount of up to Five Hundred Thousand Dollars ($500,000). The Company agrees not to permit the outstanding principal balance of the line of credit to exceed the Commitment. Each advance must be for at least One Hundred Thousand Dollars ($100,000), or for the amount of the remaining available line of credit if less. Each disbursement request shall be made in writing and shall be delivered to the Lender in the manner described in Section 7.6 hereof. The Lender shall make all disbursements by wire transfer to an account or accounts designated by the Company within three (3) business days after delivery of a disbursement request. The first advance shall be made to the Company within one (1) business day after the Effective Date (as defined in Section 1.4 below) in the amount of Five Hundred Thousand Dollars ($500,000) (and this Agreement shall be deemed to be the Company's disbursement request for such amount). 1.3. AVAILABILITY PERIOD. The "Availability Period" of the line of credit commences on the Effective Date and expires on May 31, 2000 (the "Maturity Date") unless there is a Change of Control (as defined below). If there is a Change of Control, then in addition to the Lender's other remedies, the Lender may terminate the Availability Period and may require the Company to immediately repay any amounts of principal and interest accrued and unpaid under the Note (as defined below). The term "Change of Control" shall mean the consummation of: (a) The sale or other transfer of more than Fifty Percent (50%) of the voting capital stock of the Company in one or more related transactions for material consideration to any person or entity or group of persons or entities not previously shareholders of the Company and not owned or controlled by any previous shareholders of the Company, with such shareholder status determined immediately prior to the transaction; or 2 (b) The sale or other transfer of all or substantially all of the assets of the Company in one or more related transactions not in the ordinary course of the business of the Company to unrelated third parties, whether by sale, exchange, merger, consolidation, reorganization, dissolution or liquidation; other than (1) any transaction in which the Company (with the same identity of ownership after such transaction as before such transaction) is a surviving parent of the transferee corporation or entity or is a surviving subsidiary of a transferee parent corporation or entity owned or controlled by persons who, immediately prior to such transaction, owned a majority of the outstanding voting stock of the Company; (2) any sale or transfer of the capital stock owned or controlled by the majority shareholder or shareholders of the Company to trusts or comparable entities for the primary benefit of such shareholders or their family members or to the estate, heirs or devisees of any such shareholder in the event of his or her death; or (3) any transaction in which the Company reincorporates in another jurisdiction or engages in other internal reorganization or changes in corporate structure without the receipt of consideration and with the same identity of ownership as immediately before such transaction; none of which shall be a Change of Control hereunder. 1.4. LOAN DOCUMENTS; DELIVERY; EFFECTIVE DATE. The "Loan Documents" are the documents indicated below, each dated as of the date of this Agreement unless indicated otherwise. A capitalized term used in this Agreement but not defined herein has the meaning given in the other Loan Documents. (a) The Agreement. (b) The Note (c) The Warrant (as defined below) Each party shall execute and deliver to the other party counterpart copies of the Loan Documents by telefacsimile or hand delivery on or before the Effective Date (as defined in this Section 1.4). In addition, on or before the Effective Date (as defined in this Section 1.4), (a) the Company shall deliver to the Lender at its address set forth on the signature page hereof (or to Lender's counsel at its San Francisco office, att'n: Jeff L. Schaffer) an original executed counterpart of the Credit Facility Agreement bearing an authorized signature on behalf of the Company, and (b) the Lender shall deliver to the Company at its address set forth on the signature page hereof (or to the Company's counsel at its San Francisco office, att'n: Scott Kline) an original executed counterpart of the Credit Facility Agreement. Finally, on or before the Effective Date (as defined in this Section 1.4), the Company shall obtain the Lender's signature in the "ACCEPTANCE BY HOLDER" signature line on the last page of the Warrant, and the Company shall deliver by Federal Express or other overnight courier directly to ING Barings, LLC, 350 Park Ave., 3rd Floor, New York, New York, 10022, Att'n: Dave Johnson, both of the following documents: (i) the executed original Note bearing an authorized signature on behalf of the Company, and (ii) the executed original Warrant bearing authorized signatures on behalf of the Company and the Lender. For purposes of this Agreement, the "Effective Date" shall be the date that the last of all 3 of the executions and deliveries specified in this Section 1.4 (including, without limitation, Furham Selz's actual receipt of the executed original Note and Warrant) has occurred. 2. PROMISSORY NOTE. 2.1. ISSUANCE OF NOTE; INTEREST RATE. Subject to the terms and conditions of this Agreement, at the time of the execution and delivery of this Agreement by the parties, the Company will issue a promissory note of the Company payable to the Lender in the maximum principal amount of the Commitment and bearing interest at the rate of eight percent (8%) per annum (except that upon the occurrence of a Default and for so long as any Default remains outstanding, the outstanding principal amount of such Note shall bear interest at the Default rate of ten percent (10%) per annum), in substantially the form of Exhibit A hereto (the "Note"), and such Note shall be delivered for the benefit of the Lender as provided in Section 1.4. Notwithstanding any provision herein, the Company and Lender intend that the total liability for payments in the nature of interest shall not exceed the applicable limits imposed by any applicable state or federal interest rate laws. If any payments in the nature of interest, additional interest, and other charges made hereunder are held to be in excess of the applicable limits imposed by any applicable state or federal laws, it is agreed that any such amount held to be in excess shall be considered payment of principal and the indebtedness evidenced thereby shall be reduced by such amount in the inverse order of maturity so that the total liability for payments in the nature of interest, additional interest and other charges shall not exceed the applicable limits imposed by any applicable state or federal interest rate laws. 2.2. TERM AND PREPAYMENT OF NOTES. All unpaid principal and all accrued and unpaid interest on the Note shall be due and payable on the Maturity Date. The Company may prepay all or part of the Note at any time without penalty and, upon payment of the Debt (as defined herein) in full, may terminate the line of credit. Under all events and circumstances, the line of credit shall terminate no later than the Maturity Date. 2.3. FEES AND EXPENSES. In addition to principal and interest with respect to the Note, the Company agrees on the Closing Date, to reimburse the Lender for (or pay to the Lender's counsel directly) up to Twenty-Five Thousand Dollars ($25,000) of the reasonable fees and expenses of Lender's counsel in connection with the drafting and negotiation of this Agreement and the other Loan Documents (including a reasonable estimate of post-closing fees and expenses of such counsel). To the extent that they are not paid on the Closing Date, the fees and expenses described in this Section 2.3 (collectively, "Fees and Expenses") shall be payable within thirty (30) days after invoice by the Lender. 2.4. SECURITY FOR THE NOTES. (a) GRANT OF SECURITY INTEREST. The Company hereby grants to the Lender a security interest in the property described in Section 2.4(c) below (collectively, the "Collateral") to secure payment of all amounts due under this Agreement or the Note, including without limitation the principal amount of all advances and all accrued interest thereon (collectively, the "Debt") and performance by the Company of all of the Company's covenants, liabilities, undertakings and obligations to the Lender hereunder, whether absolute or contingent. 4 (b) UCC-1 FINANCING STATEMENTS. Concurrently with the execution of this Agreement, the Company shall (1) execute and deliver to Lender UCC-1 Financing Statements ("UCC-1 Financing Statements") in favor of the Lender covering the Collateral in form and substance reasonably satisfactory to Lender. In addition, at Lender's request from time to time after delivery of the Financing Statement, the Company will execute and deliver to Lender such other documents as Lender may reasonably request to perfect Lender's security interest in the Collateral. (c) COLLATERAL. The Collateral shall consist of all tangible and intangible property of the Company (and all of the Company's right, title and interest therein and thereto), whether now owned by the Company or acquired by the Company after the date hereof at any time, including, but not limited to, goods, inventories, machinery, equipment, fixtures, documents, patents, patent applications, customer lists, contract rights, instruments, books, records, files, licenses of patents and technology, computer programs in source or object code, general intangibles, goodwill, chattel paper, accounts receivable and accounts, including all cash and non-cash proceeds of all such property, the products and increase of all such property, and all additions to and replacements of all such property. For purposes hereof, the term "proceeds" includes whatever is receivable or received by the Company when Collateral is sold, leased, collected, exchanged or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes, without limitation, all rights to payment, including return premiums, with respect to any insurance relating thereto. The Company hereby represents and warrants to the Lender that the Company is the owner of the Collateral (or, in the case of after-acquired Collateral, at the time the Company acquires rights in such Collateral, will be the owner thereof) and such Collateral is free and clear of all liens and encumbrances, except for any liens and encumbrances that arise by operation of law (such as mechanic's or materialmen's liens) and that do not secure any past-due amount owing by the Company or as set forth on Schedule 2.4(c) attached hereto. (d) WAIVER BY THE COMPANY. To the maximum extent permitted by law, the Company hereby waives (i) any right to require the Lender to pursue any particular remedy against the Company or any other person; (ii) any right to the benefit of, or to direct the application of, any Collateral until the Debt shall have been paid and performed in full; and (iii) any right of subrogation to the Lender until the Debt shall have been paid and performed in full. (e) DEFAULT. The Company shall be deemed in default ("Default") under this Agreement if (1) the Company shall fail to make payment of the principal amount of all advances hereunder and all accrued interest thereon as and when due, (2) The Company shall fail to make payment of any Fees and Expenses hereunder within ten (10) days of when due, (3) the Company shall file a petition in bankruptcy or for reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same nature under any Federal or state law, or the Company is adjudicated a bankrupt or insolvent or makes an assignment for the benefit of creditors, or any petition or other proceeding is filed by the Company for appointment of a trustee, receiver, conservator or liquidator of all, or substantially all, of the Company's property, or if any involuntary petition in bankruptcy or other proceeding of a similar nature shall be filed against the Company and shall not be dismissed within forty-five (45) days after such 5 filing, (4) the Company shall fail to observe or perform any other term or condition of this Agreement in any material respect, and such failure or breach shall continue for a period of twenty-one (21) days, or (5) any representation or warranty of the Company contained in any Loan Document was false or misleading in any material respect when made or deemed made. (f) REMEDIES. Upon the occurrence of any such Default, the Lender may, in addition to all rights and remedies available to the Lender hereunder or under the California Commercial Code, do any one or more of the following: (1) foreclose or otherwise enforce the Lender's respective security interest in any manner permitted by law or provided for in this Agreement; (2) recover from the Company all costs and expenses, including without limitation reasonable attorneys' fees and costs, incurred or paid by the Lender in exercising any right, power or remedy provided by this Agreement or by law; (3) require the Company to assemble the Collateral and make it available to the Lender at the Company's facilities; (4) enter onto property where any Collateral is located and take and maintain possession thereof and remove the Collateral therefrom with or without judicial process; (5) prior to the disposition of the Collateral, store, process, repair or recondition it or otherwise prepare it for disposition in any commercially reasonable manner and to the extent the Lender deem appropriate; and (6) declare all or any of the Debt to be immediately due and payable (and upon which declaration the Debt shall be so due and payable); provided, however, that in the event of any Default under clause (1), (2) or (3) of Section 2.4(e), all Debt shall automatically and immediately become due and payable without declaration, notice or any other action whatsoever. If a sufficient sum is not realized from the disposition of Collateral to pay the Debt then outstanding, the Company shall be liable for and agrees to pay any deficiency. (g) CUMULATIVE RIGHTS. The rights, powers and remedies of the Lender hereunder shall be in addition to all rights, powers and remedies given to the Lender by virtue of any statute or rule of law, all of which rights, powers and remedies shall be cumulative and may be exercised successively or concurrently without impairing the Lender's security interest in the Collateral. 6 2.5. ADMINISTRATION. (a) LOAN ACCOUNT. The Lender shall maintain in its records a loan account for the line of credit hereunder (the "Loan Account") in which shall be recorded (i) the principal amount of the advances made under the line of credit, (ii) the amount of interest accrued on the line of credit; (iii) all other appropriate debits and credits as and when due in accordance with this Agreement; (iv) all Fees and Expenses; and (v) all payments made by the Company on the line of credit. All entries in the Loan Account shall be made in accordance with the customary accounting practices of the Lender as in effect from time to time. All payments hereunder shall be applied first, to Fees and Expenses, second, to accrued and unpaid interest, and third, to principal payments then due and owing. (b) STATEMENTS. The Lender shall deliver to the Company a written statement each calendar month setting forth the balance of the principal amount of the line of credit outstanding, all accrued and unpaid interest thereon, all Fees and Expenses and the remaining available amount of line of credit. Each such statement shall be subject to subsequent review by the Company and shall be binding upon the Lender. 3. THE WARRANT. Concurrently with the issuance of the Note, and subject to the terms and conditions of this Agreement, at the Closing the Company will issue to the Lender a non-transferable warrant to purchase shares of capital stock of the Company (the "Warrant Shares") in substantially the form of Exhibit B hereto (the "Warrant"). The Warrant Shares shall be subject to the registration rights set forth in the Warrant. The Warrant shall be delivered by the Company for the benefit of the Lender in accordance with Section 4.1 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to the Lender as follows: 4.1. ORGANIZATION AND STANDING; ARTICLES AND BYLAWS. 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 to own and operate its properties and assets, and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified or licensed as a foreign corporation in California. 4.2. CORPORATE POWER. The Company has all requisite legal and corporate power to enter into this Agreement, to issue the Note and Warrant, and to carry out and perform its obligations under the terms hereof and thereof, subject to applicable federal and state securities laws. 4.3. AUTHORIZATION. All corporate action on the part of the Company, its officers, directors, and stockholders necessary for the sale and issuance of the Note and Warrant pursuant hereto and the performance of the Company's obligations hereunder and thereunder has been taken. This Agreement is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general application affecting enforcement of 7 creditors' rights, and except as limited by application of legal principles affecting the availability of equitable remedies. 4.4. NO CONFLICT. To the actual knowledge of the Company, (i) the execution and delivery of the Loan Documents and the consummation of the transactions contemplated thereby will not materially conflict with any legally enforceable contract or agreement between the Company and any third person or entity; and (ii) the Company is not a party to any outstanding agreement which any material obligation or agreement is inconsistent with the Loan Documents. 4.5. USE OF PROCEEDS. The Company shall use the advances hereunder for general corporate purposes and working capital as deemed necessary or appropriate by the Board of Directors and Management of the Company. 4.6. DISCLOSURE. To the actual knowledge of the Company, (i) the Loan Documents, including the exhibits thereto, and the information delivered to the Lender pursuant to the Loan Documents do not contain any untrue statement of a material fact and do not omit to state a material fact necessary in order to make the statements contained therein or herein not misleading and (ii) there is no fact which materially adversely affects the business, prospects, condition, affairs or operations of the Company or any of its properties or assets which has not been set forth in the Loan Documents, or exhibits thereto. Each of the foregoing representations and warranties automatically shall be deemed brought down and remade anew by the Company each time, and as of the date, it requests an advance from the Lender pursuant to Section 1 above. 5. REPRESENTATIONS AND WARRANTIES OF THE LENDER. 5.1. DUE EXECUTION. The Loan Documents have been duly executed and delivered by the Lender, and, upon execution and delivery by the Company, will be valid and legally enforceable in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general application affecting enforcement of creditors' rights, and except as limited by application of legal principles affecting the availability of equitable remedies. 5.2. AUTHORITY. The Lender has all right, power and authority to enter into the Loan Documents and to consummate the transactions contemplated thereby, and the Loan Documents, once executed by the Company and the Lender, will constitute the legally binding valid obligations of the Lender enforceable in accordance with their terms, such enforceability being subject only to laws of general application relating to bankruptcy, insolvency and the relief of the Company and rules of law governing specific performance, injunctive relief or other equitable remedies. 5.3. BROKERS OR FINDERS. The Company has not incurred and will not incur, directly or indirectly, as a result of any action taken by the Lender, any liability for brokerage or 8 finders' fees or agents' commissions or any similar charges in connection with this Agreement or the transactions contemplated hereby. 5.4. COMPLIANCE WITH SECURITIES LAWS. The Lender hereby represents, warrants and covenants that (1) the Note, Warrant and Warrant Shares shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution (within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), and rules, regulations and interpretations thereunder and thereof) thereof; (2) the Lender has had such opportunity as the Lender has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Lender to evaluate the merits and risks of its loan to the Company and any investment in the Company; (3) the Lender is able to bear the economic risk of holding the Note, Warrant and Warrant Shares for an indefinite period; and (4) the Lender understands that (i) the Note and Warrant will not be registered under the Securities Act, (ii) the Warrant Shares will not be registered under the Securities Act unless and until the Lender's rights under the Warrant are exercised in accordance with the terms thereof, and until such registration is effected, (iii) the Note, Warrant and Warrant Shares will be "restricted securities" within the meaning of Rule 144 under the 1933 Act and (iv) the exemption from registration under Rule 144 will not be available for at least one year from the date of purchase of the Note and Warrant or exercise of the Warrant, as the case may be, and even then will not be available unless a public market then exists for the stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with. The Company acknowledges that a transfer of the Note or a fractional portion of the Note to one or more of the partners who comprise the Lender as a distribution without consideration (whether upon liquidation of Lender or a withdrawal of capital by such a partner in accordance with Lender's agreement of limited partnership) will not require any registration of the Note or any consent of the Company. 5.5. LEGENDS. The Lender understands that the Warrant Shares will bear restrictive legends as deemed necessary by the Company or its counsel with regard to the matters set forth in this Agreement or otherwise as necessary or appropriate. 6. NO ADDITIONAL DEBT. So long as there is any Debt outstanding or the line of credit remains in effect, except for any Debt owing to the Lender or debt issued contemporaneously with payment of the Debt in full and termination of the line of credit, the Company shall not incur or issue or permit to exist any indebtedness for borrowed money (whether or not evidenced by any note, indenture, mortgage or other instrument), including without limitation any deferred portion of the purchase price for property or services (other than trade payables incurred in the ordinary course of business that are not past due) without the written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Company may, without the consent or approval of the Lender, incur junior debt in the aggregate principal amount of up to Five Hundred Thousand Dollars ($500,000) in connection with the purchase or lease of property (whether or not in the ordinary course of business). 9 7. MISCELLANEOUS. 7.1. WAIVERS AND AMENDMENTS. (a) DELAYS. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. (b) AMENDMENTS. This Agreement may not be amended, modified or supplemented other than by a written instrument signed by all parties, which are, at the time of such amendment or modification, subject to this Agreement. (c) WAIVERS. Any provision of this Agreement may be waived if, but only if, such waiver is in writing and is signed by the party against whom the enforcement of such waiver is sought. 7.2. GOVERNING LAW; ATTORNEYS' FEES. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within California. he Company shall reimburse Lender for all costs and expenses, including attorneys' fees, reasonably incurred by Lender in connection with the administration or enforcement of any Loan Document (but subject to the $25,000 limitation specified in Section 2.3 above respecting the drafting and negotiation of the Loan Documents) if Lender is the prevailing party, whether or not suit if filed. In addition, in the event any action or proceeding is commenced concerning the interpretation or enforcement of any Loan Document, the prevailing party in such action or proceeding shall be entitled to recover reasonable attorneys' fees and costs of suit from the non-prevailing party. 7.3. SURVIVAL. The representations, warranties, covenants, and agreements made herein shall survive the closing of the transactions contemplated hereby. 7.4. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the respective directors, officers, parents, subsidiaries, affiliates, representatives, agents, successors, and assigns of each of the parties. 7.5. ENTIRE AGREEMENT. This Agreement and the other documents delivered. pursuant hereto constitute the full and entire understanding and agreement between the parties hereto with regard to the subjects hereof and thereof. 7.6. NOTICES. All notices and other communications required or permitted hereunder shall be in writing and shall be transmitted by personal delivery, telefacsimile, or overnight courier addressed to the applicable party at its address or fax number set forth below its signature on the signature page hereof, or at such other address or fax number furnished to the 10 other party in writing in accordance with this Section 7.6. Any such notice shall be effective on receipt during business hours on a business day. 7.7. SEPARABILITY. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any manner be affected or impaired thereby. 7.8. OTHER DOCUMENTS. The parties to this Agreement shall in good faith execute such other and further instruments, assignments or documents as may be necessary or appropriate to carry out the transactions contemplated by this Agreement. 7.9. INDEMNITY. The Company agrees to indemnify and save harmless Lender, the Lender's officers, directors, partners, employees and agents, and each person who controls such other party within the meaning of the Securities Act or the Exchange Act, from and against any and all costs, expenses, damages, claims, actions or other liabilities, including costs of investigation and defense (collectively, "Damages") suffered or incurred by any such indemnified party as a result of any breach by the Company of any of its agreements, representations, warranties or covenants contained in this Agreement, other than Damages resulting, directly or indirectly from the gross negligence or willful misconduct of the indemnified party; provided, however, that if and to the extent that such indemnification is unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such indemnified liability which shall be permissible under applicable laws. 7.10. TITLES; INTERPRETATION. The titles of the Sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. References herein to exhibits to this Agreement shall be deemed to incorporate all exhibits by reference. Where the context requires, the singular shall include the plural and the plural the singular. 11 7.11. COUNTERPARTS. This Agreement may be executed in any number of counterparts which may be delivered by facsimile and each of which shall be an original, but all of which together shall constitute one instrument, and which shall become effective when there exist copies signed by the Company and the Lender. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized representatives effective as of the date set forth on the first page hereof COMPANY: OMNIS TECHNOLOGY CORPORATION, A DELAWARE CORPORATION BY: /s/ JAMES DORST --------------------------------- NAME: JAMES DORST ------------------------------- TITLE: CFO/COO ------------------------------ 981 INDUSTRIAL WAY SAN CARLOS, CALIFORNIA 94070-4117 FAX NUMBER: 650-632-7130 LENDER: ASTORIA CAPITAL PARTNERS, L.P., A CALIFORNIA LIMITED PARTNERSHIP BY: ASTORIA CAPITAL MANAGEMENT, INC. ITS GENERAL PARTNER BY: /s/ RICK KOE ------------------------------ RICK KOE, PRESIDENT 6600 92ND AVENUE S.W. SUITE 370 PORTLAND OREGON 97223 FAX NUMBER: (503) 244-3801 EX-10.4 5 FORM OF PROMISSORY NOTE DATED DECEMBER 21, 1999 1 EXHIBIT 10.4 NEITHER THIS PROMISSORY NOTE NOR THE SHARES OF CAPITAL STOCK ISSUABLE HEREUNDER HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION. PROMISSORY NOTE $3,000,000 8% p.a. December 21, 1999 For value received, OMNIS TECHNOLOGY CORPORATION, a Delaware corporation, whose principal place of business is 981 Industrial Way, San Carlos, California 94070-4117 ("Maker"), hereby promises to pay to the order of ASTORIA CAPITAL PARTNERS, L.P., a California limited partnership, ("Payee"), at its principal place of business, 6600 92nd Avenue S.W., Suite ____, Portland, Oregon 97223, or at such other place as Payee may from time specify, the principal sum of THREE MILLION DOLLARS ($3,000,000) or so much thereof as may be advanced and be outstanding hereunder plus interest thereon, in legal and lawful money of the United States of America. This Note is made pursuant to that certain Credit Facility Agreement by and between Maker and Payee dated as of the date hereof (the "Credit Facility Agreement"), as amended from time to time, the terms of which are incorporated herein by reference. Additional terms of this Note, including, without limitation, the rate of interest, default rate of interest, terms of repayment, security, terms of default, governing law and venue and costs and attorneys' fees are set forth in the Credit Facility Agreement. Maker hereby waives diligence, demand, presentment for payment, notice of non-payment, protest and notice of protest, and specifically consents to and waives notice of any renewals or extensions of this Note, whether made to or in favor of Maker or any other person or persons. The pleading of any statute of limitations as a defense to any demand against Maker is expressly waived by each and all of said parties to the fullest extent permitted by law. The rights, powers and remedies of Payee under this Note shall be in addition to all rights, powers and remedies given to Payee by virtue of any statute or rule of law, including but not limited to the California Commercial Code. All such rights, powers and remedies shall be cumulative and may be exercised successively or concurrently in Payee's sole discretion. Any forbearance, failure or delay by Payee in exercising any right, power or remedy shall not preclude further exercise thereof, and every right, power or remedy of Payee shall continue in full force and effect until such right, power or remedy is specifically waived in a writing executed by Payee. 2 Notwithstanding the legend at the top of this Note, the Maker acknowledges that a transfer of this Note or a fractional portion of this Note to one or more of the partners who comprise Payee as a distribution without consideration (whether upon liquidation of Payee or a withdrawal of capital by such a partner in accordance with Payee's agreement of limited partnership) will not require registration of this Note, any opinion of counsel for the Payee, or any consent of the Maker. IN WITNESS WHEREOF, this Note has been executed and delivered as of the date first above written by the duly authorized representative of Maker. OMNIS TECHNOLOGY CORPORATION, A DELAWARE CORPORATION By: /s/ JAMES DORST --------------------------------- Name: JAMES DORST ------------------------------- Title: CFO/COO ------------------------------ 2 EX-10.5 6 FORM OF WARRANT DATED AS OF DECEMBER 21, 1999 1 EXHIBIT 10.5 NEITHER THIS WARRANT NOR THE CAPITAL STOCK ISSUABLE HEREUNDER HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR WITH ANY STATE SECURITIES COMMISSIONER. NEITHER THIS WARRANT NOR THE CAPITAL STOCK MAY BE SOLD OR TRANSFERRED UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND QUALIFIED UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR UNLESS EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION ARE AVAILABLE. OMNIS TECHNOLOGY CORPORATION. NON-TRANSFERABLE WARRANT December 21, 1999 Reference is hereby made to that certain Credit Facility Agreement (the "Credit Facility Agreement") by and between Omnis Technology Corporation., a Delaware corporation (the "Company") and Astoria Capital Partners, L.P., a California limited partnership (the "Holder") and the $3,000,000 Promissory Note (the "Note") dated December 21, 1999 of the Company in favor of the Holder, the terms of which are incorporated by this reference. The Company hereby certifies that, for value received, Holder is entitled to purchase from the Company, on or before the Expiration Date (as defined below), the number of shares or other units of securities of the Company (the "Warrant Securities") set forth herein under the terms and conditions set forth herein. 1. EXPIRATION DATE. This Warrant shall be exercisable in whole or in part until 5:00 p.m. (San Francisco time) on May 31, 2001 (the "Expiration Date"). 2. TERMS AND CONDITIONS OF EXERCISE OF THIS WARRANT. 2.1. QUALIFYING OFFERINGS. (i) This Warrant may only be exercised in connection with one or more Qualifying Offerings (as such term is defined below) as set forth herein and (ii) the Warrant Securities issuable upon exercise hereof shall only be issued at the closing of a Qualifying Offering. The term "Qualifying Offering" shall mean the offer and sale by the Company of any equity securities of the Company, or securities convertible into equity securities ("Reference Securities"), in one transaction or a series of transactions with aggregate net proceeds of at least $1,000,000 consummated on or before the Expiration Date, excluding any securities issued pursuant to any of the Company's stock incentive plans for the benefit of employees, officers, directors or agents or securities issued upon exercise or conversion of any such securities. Notwithstanding anything to the contrary herein, the Company shall have no obligation to issue any securities, consummate any offering of its securities or accept any offer to issue or sell any of its securities on or before the Expiration Date. 1 2 2.2. OFFERING NOTICE. In the event that the Company (i) issues a written offering memorandum, offer letter or other binding written offer to sell or issue securities in a Qualifying Offering to one or more persons or (ii) receives a binding offer to purchase securities in a Qualifying Offering from one or more persons, the Company shall provide prompt written notice of such offer to Holder. Holder shall notify the Company in writing within thirty (30) days after receipt of such notice of its election to exercise all or part of this Warrant. Notwithstanding the foregoing, the Company shall have no obligation to provide notice to Holder of (i) any written or oral communications relating to a potential offer, sale or issuance of its securities in advance of an offer to purchase or sell such securities that the offeree could accept, or (ii) offers to buy, sell or issue its securities that will not be (either alone or together with any preceding offers), if consummated, Qualifying Offerings. 2.3. EXERCISE OF THIS WARRANT. Subject to the following sentence, in each Qualifying Offering, the Holder may, through exercise of all or part of this Warrant, purchase the number of Warrant Securities offered in connection therewith in an amount up to the amount of the Commitment specified in the Credit Facility Agreement, whether or not the Company has actually borrowed the full amount and regardless of whether any amounts actually borrowed have been paid in full or remain outstanding (the "Commitment Amount"), divided by the price per share of the Warrant Securities issued in such offering. The maximum aggregate number of Warrant Securities that may be purchased upon exercise of the Warrant shall be limited to the number of shares issuable upon payment of an aggregate Exercise Price (as defined below) in an amount equal to the Commitment Amount. The issuance of Warrant Securities hereunder shall be subject to the terms of the applicable Qualifying Offerings. In connection therewith, Holder shall execute and deliver, in addition to the Subscription Form described below, any joinder agreement, subscription agreement or other documents or instruments with respect to the Qualifying Offering reasonably requested by the Company. If any Qualifying Offering is not consummated pursuant to the terms thereof and shares or not issued to the Holder hereunder, the applicable exercise hereof shall be deemed void and the Company shall promptly return any exercise price paid in connection with such exercise without deduction. 2.4. EXERCISE PRICE. Upon exercise of this Warrant, in whole or in part, and subject to the limitations on the number of Warrant Securities issuable hereunder set forth above, the Holder shall pay to the Company an exercise price equal to the price per Warrant Security in the applicable Qualifying Offering times the number of shares to be issued upon exercise hereof (the "Exercise Price"). The Exercise Price shall be paid in cash, provided, that the Holder may elect to cancel any outstanding debt and/or accrued interest, including the Note, as payment of the Exercise Price. The Holder may also exchange other securities of the Company held at the market price thereof in payment of the Exercise Price. 2.5. EXERCISE PROCEDURES. This Warrant shall be exercised by surrendering it to the Company at its principal office, with a duly executed Subscription Form (in substantially the form appearing at the end of this document), together with payment of the Exercise Price. Promptly after exercise and in accordance with the terms of the applicable Qualifying Offering, the Company shall issue and deliver to or upon the order of the Holder a certificate or certificates for the number of Warrant Securities issuable upon such exercise, and the Company will pay all issue taxes in connection therewith. All Warrant Securities that may be issued upon exercise of 2 3 this Warrant will, upon issuance by the Company in accordance with the terms of this Warrant, be validly issued, fully paid and non-assessable, and free from all taxes and liens with respect to the issuance thereof. The Company shall not be required to pay any tax or other charge imposed in connection with any transfer involved in the issuance of any certificate for Warrant Securities in any name other than that of the Holder, and in such case the Company shall not be required to issue or deliver any stock certificate or security until such tax or other charge has been paid, or it has been established to the Company's reasonable satisfaction that no tax or other charge is due. 3. WARRANT SECURITIES ISSUABLE ON EXERCISE OF WARRANT. The parties acknowledge that the number of authorized but unissued shares of Preferred Stock of the Company as of the date hereof would not be sufficient as of the date of this Warrant to effect the exercise of this Warrant if the Warrant Securities were preferred stock. The Company agrees, however, to use its best efforts to take such corporate action as may be necessary, in the opinion of its counsel, to increase its authorized but unissued shares of Preferred Stock to such number of shares as would be sufficient to allow a Qualifying Offering to be made of preferred stock and for the issuance of preferred stock as Warrant Securities immediately prior to or concurrently with the consummation of a Qualifying Offering of preferred stock and at any time thereafter as shall be necessary to effect the exercise of this Warrant. 4. FRACTIONAL SHARES. If the Warrant Securities are issued at a price of less than $100 per share or other unit, no fractional Warrant Securities will be issued in connection with any exercise of this Warrant, but in lieu of such fractional shares the Company shall make a cash payment therefor upon the basis of the Exercise Price then in effect. 5. TRANSFER. 5.1. TRANSFER. This Warrant may not be transferred, in whole or in part, except in accordance with the procedures and limitations as set forth below. In addition, the Warrant Securities issuable upon exercise hereof will be subject to any transfer restrictions contained in the Company's Bylaws that apply to the Warrant Securities. 5.2. REGISTRATION OR EXEMPTION. This Warrant and Warrant Securities issuable upon exercise hereof shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act of 1933, as amended (the "Act"), or (ii) the Company first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Company, to the effect that such sale or transfer is exempt from the registration requirements of the Act. The Company acknowledges that a transfer of a portion of the Warrant or of Warrant Securities to one or more of the partners who comprise Holder as a distribution without consideration (whether upon liquidation of Holder or a withdrawal of capital by such a partner in accordance with Holder's agreement of limited partnership) will not require such registration and will not require an opinion of counsel in connection with such a distribution. 5.3. LEGEND. Each certificate representing Warrant Securities issuable upon exercise hereof shall bear a legend substantially in the following form: 3 4 "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, and may not be offered, sold or otherwise transferred, pledged or hypothecated unless and until such securities are registered under such Act or an opinion of counsel satisfactory to the Company is obtained to the effect that such registration is not required." The foregoing legend shall be removed from the certificates representing any such shares, at the request of the holder thereof, at such time as they become eligible for resale by the Holder pursuant to Rule 144(k) under the Act or otherwise. 6. REGISTRATION RIGHTS. 6.1. PIGGYBACK REGISTRATION. If the Company proposes to register any of its securities at any time on or before May 31, 2002, the Company shall notify the Holder in writing at least thirty (30) days prior to filing any such registration statement under the Securities Act for purposes of effecting a public offering of securities of the Company (excluding registration statements relating to any employee benefit plan or a corporate reorganization, including securities issued by the Company in an acquisition transaction). The Holder shall have the right to include in such registration statement all or any part of the Holder's Warrant Securities or other securities into which the Warrant Securities have been or may be converted ("Registrable Securities"). If the Holder elects to include in any such registration statement all or any part of the Holder's Registrable Securities, then the Holder shall, within twenty (20) days after receipt of the above-described notice from the Company, so notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Securities the Holder wishes to include in such registration statement. If the Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, the Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company on or before the date set forth above with respect to offerings of its securities, all upon the terms and conditions set forth herein. (a) UNDERWRITING. If a registration statement under which the Company gives notice under this Section is for an underwritten offering, then the Company shall so advise the Holder. In such event, the right of the Holder to include its Registrable Securities in a registration pursuant to this Section shall be conditioned upon the Holder's participation in such underwriting and the inclusion of the Holder's Registrable Securities in the underwriting to the extent provided herein. The Holder shall enter into an underwriting agreement in customary form with the managing underwriter or underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriter determine(s) in good faith that marketing factors require a limitation of the number of shares to be underwritten, then the managing underwriter(s) may exclude shares (including Registrable Securities) from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated, first, to the Company, and second, to the Holder. The Holder may elect to withdraw from any offering by written notice to the Company and the underwriter, delivered at least twenty (20) days prior to the effective date 4 5 of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. The Company covenants that it will not grant to any other person any piggyback registration rights without including a provision that, if a managing underwriter excludes any securities from a registration and underwriting, the securities sought to be included by such other person shall be included only to the extent all of the Warrant Securities the Holder sought to include in the registration have been included. (b) EXPENSES. All expenses incurred in connection with a registration pursuant to this Section (excluding underwriters' and brokers' discounts and commissions; and the fees and disbursements of special counsel for the Holder), including, without limitation all federal registration and qualification fees, "blue sky" registration and qualification fees for up to five (5) states, printers' and accounting fees, fees and disbursements of counsel for the Company shall be borne by the Company. 6.2. DEMAND REGISTRATION. (a) REQUEST BY HOLDER. If the Company shall receive a written request from the Holder (a "Demand Request") that the Company file a registration statement under the Securities Act covering the registration of at least twenty percent (20%) of the outstanding Eligible Registrable Securities (as defined below) pursuant to this Section, and if such Shares have not been heretofore registered pursuant to Section 6.1 hereof, then the Company shall within thirty (30) days after the receipt of such Demand Request, file a registration statement under the Securities Act with respect to the Eligible Registrable Securities that the Holder has requested to be registered and included in such registration and use its reasonable best efforts to effect the registration as soon as practicable thereafter and to maintain the effectiveness of such registration until the earlier of (i) the date all the Holder's Registrable Securities have been sold , (ii) the date the Holder's Registrable Securities are eligible for resale by Holder pursuant to Rule 144(k) or (iii) the third anniversary of the effectiveness of the registration statement, subject only to the limitations of this Section. The term "Eligible Registrable Securities" means any Registrable Securities held by Holder that were issued pursuant to the exercise of this Warrant at least twelve (12) months, but not more than twenty-four (24) months, before the date of the Demand Request. (b) UNDERWRITING. If the Holder intends to distribute its Eligible Registrable Securities by means of an underwriting, then it shall so advise the Company as a part of its Demand Request. The Holder shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Company and the Holder. Notwithstanding any other provision of this Section, if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise the Holder and the number of Eligible Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s); provided, however, that the number of shares of Eligible Registrable Securities to be included in such underwriting and registration shall not be reduced unless all securities proposed to be registered for the account of the Company are first entirely excluded from the underwriting. Any Eligible Registrable Securities excluded and 5 6 withdrawn from such underwriting shall be withdrawn from the registration. (c) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. The Company is obligated to effect only one (1) such registration pursuant to this Section. (d) DEFERRAL. Notwithstanding the foregoing, if the Company shall furnish to the Holder, a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration statement to be filed and it is therefore essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing for a period of not more than 120 days after receipt of the request notice; provided however, that the Company may not utilize this right more than once. (e) EXPENSES. All expenses incurred in connection with a registration pursuant to this Section, including without limitation all registration and qualification fees, printers' and accounting fees, fees and disbursements of counsel for the Company, (but excluding underwriters' discounts and commissions), shall be borne by the Company. The Holder shall bear all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering and the fees and disbursements of any counsel for the Holder. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to this Section if the registration request is subsequently withdrawn at the request of the Holder; provided however, that (i) if at the time of such withdrawal, the Holder has learned of a material adverse change in the condition, business, or prospects of the Company not known to the Holder at the time of their request for such registration and have withdrawn their request for registration with reasonable promptness after learning of such material adverse change or (ii) the Company exercised its right to defer the filing of a registration statement pursuant to subsection (d) above and, after the deferral but before the filing of the registration statement, the Holder withdraws its request, then the Holder shall not be required to pay any of such expenses and shall retain its rights pursuant to this Section. 6.3. INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement pursuant hereto: (a) BY THE COMPANY. To the extent permitted by law, the Company will indemnify and hold harmless the Holder, the partners, officers and directors of the Holder, any underwriter (as defined in the Securities Act) for Holder and each person, if any, who controls the Holder or underwriter within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended, (the "1934 Act"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the l934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, "Violations" and, individually, a "Violation"): (1) any untrue statement or alleged untrue statement of a material fact 6 7 contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (2) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (3) any violation or alleged violation by the Company of the Securities Act, the 1934 Act, any federal or state securities law or any rule or regulation promulgated under the Securities Act, the 1934 Act or any federal or state securities law in connection with the offering covered by such registration statement; and the Company will reimburse the Holder, each partner, officer or director, underwriter or controlling person for any legal or other expenses reasonably incurred by them, as incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this subsection shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, officer, director, underwriter or controlling person of the Holder. (b) BY THE HOLDER. To the extent permitted by law, the Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, or underwriter may become subject under the Securities Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by the Holder expressly for use in connection with such registration; and the Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, or underwriter in connection with investigating or defending any such loss, claim, damage, liability or action; provided however, that the indemnity agreement contained in this subsection shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further, that the total amounts payable in indemnity by the Holder under this Section in respect of any Violation shall not exceed the net proceeds received by the Holder in the registered offering out of which such Violation arises. (c) NOTICE. Promptly after receipt by an indemnified party under this 7 8 Section of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section. (d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The foregoing indemnity agreements of the Company and the Holder are subject to the condition that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the benefit of any person if a copy of the Final Prospectus was furnished to the indemnified party and was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act. (e) "MARKET STAND-OFF" AGREEMENT. The Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, sell or otherwise transfer or dispose of any Warrant Securities or securities into which they have been or may be converted (other than to donees or partners of the Holder who agree to be similarly bound) for up to ninety (90) days following the effective date of a registration statement of the Company filed under the Securities Act for a firm commitment underwritten offering of newly-issued common stock of the Company with expected net proceeds of at least $20 million; provided, however, that all executive officers, directors and 1% shareholders of the Company then holding Common Stock of the Company enter into similar agreements. In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the shares subject to this Section and to impose stop transfer instructions with respect to the Warrant Securities (and the Warrant Securities of every other person subject to the foregoing restriction) until the end of such period. 7. MISCELLANEOUS. 7.1. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) upon delivery of an indemnity agreement or bond in such 8 9 reasonable amount as the Company may determine or (in the case of mutilations) upon surrender and cancellation hereof, the Company, at its expense, will issue a replacement. 7.2. NOTICES. All notices and other communications required or permitted hereunder shall be in writing and shall be transmitted by personal delivery, telefacsimile, or overnight courier addressed to the applicable party at its address set forth below its signature on the signature page hereof, or at such other address furnished to the other party in writing in accordance with this section. Any such notice shall be effective on receipt during business hours on a business day. 7.3. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES, ETC. All covenants, representations and warranties made in, pursuant to, or in connection with this Warrant shall survive the execution and delivery hereof. 7.4. SEVERABILITY. Should any one or more of the provisions of this Warrant be determined to be illegal or unenforceable, all other provisions of this Warrant shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby. 7.5. PARTIES IN INTEREST. Except as otherwise expressly provided herein, all the terms and provisions of this Warrant shall be binding upon and inure to the benefit of and be binding upon, the respective directors, officers, parents, subsidiaries, affiliates, representatives, agents, successors, and assigns of each of the parties. 7.6. CHANGES; WAIVER. Neither this Warrant nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. 7.7. GOVERNING LAW. Because the issuer of this Warrant is a California corporation, this Warrant shall be construed in accordance with and governed by the laws of that State. Any litigation or arbitration between the parties which arises out of this Warrant shall be instituted and prosecuted only in the appropriate California or Federal court or other tribunal, situated in San Francisco, California. The Company hereby specifically submits itself and its properties to the exclusive jurisdiction of such courts for purposes of any such action and the enforcement of any judgment or order arising therefrom. The parties hereto each waive any right to a change of venue and any and all objections to the jurisdiction of the California courts. Notwithstanding the foregoing, the Purchasers may take such actions in a foreign jurisdiction with they deem necessary and appropriate to enforce or collect any court judgment in any dispute arising out of the Warrant or to seek and obtain other relief as is necessary to enforce the terms of this Warrant. Each party agrees that service upon such party in any such action or proceeding maybe made as provided above for the giving of notices. 7.8. EXPIRATION. If the last day on which this Warrant may be exercised, or on which it may be exercised at a particular Exercise Price, is a Sunday or a legal holiday or a day on which banking institutions doing business in the City of San Francisco are authorized by law to close, this Warrant may be exercised prior to 5:00 p.m. (San Francisco time) on the next 9 10 succeeding full business day with the same force and effect and at the same Exercise Price as if exercised on such last day specified herein. 7.9. TITLES; INTERPRETATION. The titles of the Sections and subsections of this Warrant are for convenience of reference only and are not to be considered in construing this Warrant. Where the context requires, the singular shall include the plural and the plural the singular. 10 11 IN WITNESS WHEREOF, the Company has caused this Stock Purchase Warrant to be duly executed and delivered on the date first set forth above. OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company") By: /s/ JAMES DORST --------------------------------- Name: JAMES DORST ------------------------------- Title: CFO/COO ------------------------------ 981 Industrial Way San Carlos, California 94070-4117 Fax Number: 650-632-7130 ACCEPTANCE BY HOLDER: ASTORIA CAPITAL PARTNERS, L.P., a California limited partnership By: Astoria Capital Management, Inc. Its General Partner By: /s/ RICK KOE --------------------------------- Rick Koe, President Dated: DEC. 22, 1999 ------------------ 6600 92nd Avenue S.W. Suite 370 Portland Oregon 97223 Fax Number: (503) 244-3801 11 12 SUBSCRIPTION FORM The undersigned hereby irrevocably elects to exercise the Stock Purchase Warrant issued by Omnis Technology Corporation on December ___, 1999 (the "Warrant") to the extent of purchasing _______ shares of the _________________________ Stock of Omnis Technology Corporation and [CHECK ONE] [ ] hereby delivers $______________ in payment of the Exercise Price thereof, in accordance with the Warrant. [ ] hereby irrevocably forgives and cancels $______________ of principal and $_______________ of accrued interest of the Promissory Note issued by the Company of December ___, 1999 in payment of the Exercise Price thereof, in accordance with the Warrant. Dated: ________________, 1999 Astoria Capital Partners, L.P., a California Limited Partnership By: --------------------------------- Name: ---------------------------- Title: --------------------------- 12 -----END PRIVACY-ENHANCED MESSAGE-----