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EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") by and
between OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"),
and ASTORIA CAPITAL PARTNERS, L.P. (the "Purchaser").
WHEREAS, Purchaser is a secured creditor of the Company and the Company
is indebted to Purchaser in the total amount of One Million One Hundred
Thirty-Five Thousand Eight Hundred and Thirty-Six Dollars ($1,135,836) in
principal and accrued interest (collectively "Astoria Indebtedness") as of March
31, 1999; and
WHEREAS, the parties desire to satisfy and discharge the Astoria
Indebtedness by the transfer to Purchaser of shares of the Preferred and Common
Stock of the Company in full payment thereof.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and representations and warranties of the parties hereto and other good and
valuable consideration, receipt of which is acknowledged, the parties hereto
agree as follows:
1. AUTHORIZATION AND SALE OF PREFERRED AND COMMON STOCK.
(a) Preferred Authorization. The Company will authorize the sale
and issuance of Three Hundred Thousand (300,000) shares of its Series A
Convertible Preferred Stock, par value $1.00 ("Preferred Shares") having the
rights, privileges and preferences as set forth in the Certificate of
Designations (the "Certificate of Designations") in the form attached to this
Agreement as Exhibit A. The shares of Common Stock into which the Preferred
Shares will be convertible are referred to herein as the "Conversion Stock."
(b) The Company will also authorize the sale and issuance of
7,600,000 shares of its Common Stock, $0.10 par value ("Common Shares"), having
the rights, privileges and preferences as set forth in the Restated Certificate
of Incorporation of the Company in the form attached to this Agreement as
Exhibit B ("Restated Certificate of Incorporation"). The foregoing Preferred
Shares and Common Shares shall be collectively referred to herein as the
"Shares".
(c) Sale of Shares; Purchase Prices. Subject to the terms and conditions hereof,
the Company will issue and sell to Purchaser, and the Purchaser will buy from
the Company, (i) Three Hundred Thousand (300,000) Preferred Shares at a purchase
price of One Dollar and Sixty-Six and Sixty-Seven Hundredths Cents ($1.6667) per
share, for an aggregate purchase price of Five Hundred Thousand Dollars
($500,000); and (ii) 2,543,344 Common Shares at a purchase price of Twenty-Five
Cents ($0.25) per
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share, for an aggregate purchase price of Six Hundred Thirty-Five Thousand Eight
Hundred and Thirty-Six Dollars ($635,836), as further provided herein.
(d) The parties hereby acknowledge and agree 300,000 Preferred
Shares and 2,543,344 Common Shares are being issued by the Company to the
Purchaser in consideration for the cancellation of the indebtedness of the
Company currently held by Purchaser as evidenced by the promissory note dated
___________ issued by the Company in favor of Purchaser with a current balance
equal to the Astoria Indebtedness (the "Astoria Note"). Concurrently with the
issuance of the Shares, as contemplated by this Agreement, the Astoria Note
shall be returned to the Company stamped "Cancelled" and the Astoria Note shall
thereafter be treated for all purposes as if the Astoria Note had been paid in
full. The Purchaser shall no longer hold any indebtedness of the Company upon
issuance of the Shares in accordance with this paragraph 1.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of the
Common hereunder shall be held at the offices of Landels Xxxxxx & Diamond, LLP,
000 Xxx Xxxxxxxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or at
such other time and place upon which the Company and the Purchaser shall agree
(the date of the Closing is hereinafter referred to as the "Closing Date").
(b) Delivery. At the Closing, the Company shall deliver to the
Purchaser executed certificates registered in the name of the Purchaser
representing the number of the Preferred Shares and the number of the Common
Shares being purchased by Purchaser, against payment of the purchase price
therefor.
(c) Payment of Purchase Price. At the Closing, Purchaser shall
execute and deliver to the Company the instruments of discharge and satisfaction
of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C;
and the full release of the security interest held by Purchaser to secure the
Astoria Indebtedness attached hereto and made a part hereof as Exhibit D.
(d) Delivery of Evidence of Payment of Other Indebtedness. At the
Closing and as a condition thereof, the Company shall deliver to Purchaser
written evidence of the full payment and discharge of all Option 2 Creditors of
Omnis Software, Inc. and related administrative fees, which indebtedness as of
the Effective Date equaled _________________________ ($____________________) in
the aggregate.
(e) Other Documents. At the Closing, the parties also shall
deliver such additional documents or instruments reasonably necessary to
effectuate the
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foregoing transactions and shall reasonably cooperate with each other with
respect thereto.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing in the state or jurisdiction of
its incorporation. The Company and each of its subsidiaries has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing Date
all requisite legal and corporate power and authority to execute and deliver
this Agreement, to sell and issue the Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement, including without
limitation, the sale and issuance of the Shares.
(c) Capitalization. The authorized capital stock of the Company
consists of Twenty Million (20,000,000) shares of Common Stock, of which
2,080,495 shares are issued and outstanding prior to Closing, and Three Hundred
Thousand (300,000) shares of Series A Convertible Preferred Stock, none of which
is issued and outstanding prior to the Closing; all of which shall be issued to
Purchaser pursuant to terms of this Agreement. The outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and were issued in compliance with all applicable federal and
state securities laws. The Preferred Stock has the rights, preferences,
privileges and restrictions set forth in the Certificate Of Designations of
Series A Convertible Preferred Stock of Omnis Technology Corporation
substantially in the form attached hereto and made a part hereof of Exhibit C
("Certificate of Designations"), which shall be filled with the Delaware
Secretary of State prior to Closing Date and shall be subject to the further
action of the Board of Directors and Preferred shareholders of the Company in
accordance with Section 151 of the Delaware general corporation. The Company
will reserve Five Hundred Thousand (500,000) shares of Common Stock for issuance
upon conversion of the Preferred Shares pursuant to the terms of the current
Certificate of Designations, and the Company has also reserved approximately
1,128,199 shares of Common Stock for issuance to employees, consultants or
directors under stock plans or arrangements approved by the Board of Directors
of the Company prior to the Effective Date, of which approximately 325,000
shares of Common Stock are subject to stock options or warrants or other rights
granted under such plans as of the Effective Date. There are no other options,
warrants, conversions, privileges or other contractual rights presently
outstanding to purchase or otherwise acquire any shares of the Company's stock
or other securities, except for a de minimus amount which may be unaccountable
due to past record keeping practices.
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(d) Authorization. This Agreement, when executed and delivered by
the Company, will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, such enforceability being subject only
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies. The Shares, when issued in compliance with the
provisions of this Agreement, and the Conversion Stock when issued upon
conversion of the Preferred Shares, will be validly issued (including, without
limitation, issued in compliance with applicable state and federal securities
laws), fully paid and nonassessable and will have the rights, preferences and
privileges respectively described in the Restated Certificate of Incorporation
of the Company including the Certificate of Designations as then constituted;
and the Shares and the Conversion Stock shall be free of any liens or
encumbrances, other than any liens or encumbrances created by or imposed upon
the holders thereof through no action of the Company; provided however that the
Shares and the Conversion Stock will be subject to restrictions on transfer
under state and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital stock
of Omnis Software, Inc., a California corporation, Omnis Holdings Limited, a
corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to Purchaser
its audited balance sheet and statement of operations for the period ended March
31, 1998 and its combined unaudited balance sheet and statement of operations
for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports. The Company has delivered to Purchaser its Annual
Report on Form 10-K for the year ended March 31, 1998 and its Quarterly Reports
on Form 10-Q for the quarters ended June 30, 1998, September 30, 1998 and
December 31, 1998 as filed with the Securities and Exchange Commission ("SEC").
Such reports have been duly filed, were in substantial compliance with the
requirements of their respective report forms, were complete and correct in all
material respects as of the dates for which the information was furnished, and
contained (as of such dates) no untrue statement of a material fact nor omitted
to state a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since December 31,
1998, there has not been any material change in the assets, liabilities
condition (financial or otherwise) or results of operations of the Company,
except changes in the ordinary course of business, none of which has had or is
expected to have a material adverse effect on such assets, liabilities
conditions or results of operations.
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(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not materially
conflict with or result in any violation of, or default, or give rise to a right
of termination, cancellation or acceleration of any obligation or to a loss of a
material benefit under any provision of the Restated Certificate of
Incorporation or Bylaws of the Company or any legally enforceable contract or
agreement between the Company and any third person or entity or any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or its properties or assets; and the Company is not a party to any
outstanding agreement which material obligation or agreement is inconsistent
with this Agreement.
(i) Governmental Consents. No consent, approval, order or
authorization of, or registration, designation, declaration or filing with, any
local, state or federal governmental authority on the part of the Company is
required in connection with the Company's valid execution and delivery of this
Agreement, or the offer, sale or issuance of the Shares (and Conversion Stock),
or the consummation of any other transaction contemplated hereby, except for the
filing of the Certificate of Designations, which shall be filed by the Company
prior to the Closing, and the filing of a Form D notice under Regulation D under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
post-sale filings required by applicable state securities laws. The offer, sale
and issuance of the Shares (and of the Conversion Stock) in conformity with the
terms of this Agreement are exempt from the registration requirements of Section
5 of the Securities Act and from the qualification requirements of applicable
state securities laws, assuming the accuracy of the representations and
warranties of the Purchaser as set forth in Section 4 of this Agreement.
(j) Litigation. There is no action, proceeding or investigation
pending or, to the knowledge of the Company, threatened, or any basis therefor
known to the Company, that questions the validity of this Agreement, or the
right of the Company to enter into, or to consummate the transactions
contemplated hereby, or which might result, either individually or in the
aggregate, in any material adverse change in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in the current
equity ownership of the Company. The foregoing includes, without limitation,
actions pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company's employees, their use in
connection with the Company's business of any trade secrets of any of their
former employers, or their obligations under any agreements with prior
employers. The Company (a) is not a party to any lawsuit or similar action or
proceeding, (b) is not a party to or subject to any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality, and (c)
does not intend to initiate any such action, suit, proceeding or investigation.
(k) Full Disclosure. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of a
material
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fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(l) Brokers or Funders. The Purchaser has not incurred and will
not incur directly or indirectly as a result of any action taken by the Company
or its representatives or agents, any liability for brokerage or funders' fees
or agents' commissions or similar charges in connection with this Agreement or
the transactions contemplated hereby. Company agrees to fully indemnify and
defend and hold harmless the Purchaser from and against all liabilities incurred
by Company or any related party with respect to claims related to investment
banking or funders' fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and expenses (including reasonable
fees or counsel) of investigating and defending such claims.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Purchaser hereby represents and warrants to the Company with respect to
its purchase of the Shares and the Conversion Stock as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares and the
Conversion Stock for investment for its own account, not as a nominee or agent,
and not with the view to or for resale in connection with any distribution
thereof. Purchaser understands that the Shares and the Conversion Stock have not
been, and may not be, registered under the Securities Act of 1933 by reason of a
specific exemption from the registration provisions of the Securities Act, the
availability of which depends in part upon the bona fide nature of the
investment intent and the accuracy of such Purchaser's representations as
expressed herein. No other person will have any direct or indirect beneficial
interest in or right to any of the Shares or Conversion Stock. Purchaser further
acknowledges and understands that any investment in the Company is inherently
speculative and subject to material financial risks and that its entire
investment in the Company could be lost.
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(d) Rule 144. Purchaser acknowledges that the Shares and the
Conversion Stock must be held indefinitely unless subsequently registered under
the Securities Act of 1933 or unless an exemption from such registration is
available. Purchaser is aware of the provisions of Rule 144 promulgated under
the Securities Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including the
requirement that the Shares be held for a minimum of one (1) year and in certain
cases two (2) years, after they have been purchased and paid for within the
meaning of Rule 144.
(e) Authority. Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to discuss
the business, management and financial affairs and prospects of the Company and
its subsidiaries with the Company's management and has had the opportunity to
review the United States facilities of the Company and its subsidiaries.
Purchaser acknowledges and understands that such discussions, as well as any
written information issued by the Company, were intended to describe certain
material aspects of its business and prospects but were not a thorough or
exhaustive description.
(g) Reports. Purchaser has received and reviewed the Company's
Annual Report on Form 10-K for the year ended March 31, 1998 and the Company's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998, September
30, 1998 and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby will not materially
conflict with any legally enforceable contract or agreement between Purchaser
and any third person or entity; and Purchaser is not a party to any outstanding
agreement which any material obligation or agreement is inconsistent with this
Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and will not
incur, directly or indirectly, as a result of any action taken by Purchaser or
its representative or agent, any liability for brokerage or finders' fees or
agents'
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commissions or any similar charges in connection with this Agreement or the
transactions contemplated hereby. Purchaser agrees to fully indemnify and defend
and hold harmless the Company from and against all liabilities incurred by
Purchaser or any related party with respect to claims related to investment
banking or finders fees or similar claims in connection with the transactions
contemplated by this Agreement, and all costs and expenses (including reasonable
fees of counsel) of investigating and defending such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchaser's obligations to
purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser unless consented to in writing:
(a) Representations and Warranties Correct. The representations
and warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions contained
in this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
(c) Certificate of Amendment. The Certificate of Designations
shall have been filed with the Secretary of State of the State of Delaware
authorizing the issuance of the Preferred Shares.
(d) Compliance Certificate. The Company will have delivered to
Purchaser a Certificate dated as of Closing, signed by the Company's President,
certifying that the conditions set forth in Sections 5(a), (b) and (c) have been
fulfilled.
(e) Minimum Investment. The Company at the Closing shall sell
300,000 Preferred Shares having an aggregate purchase price of not less than
$500,000 and 2,543,344 Common Shares having an aggregate purchase price of not
less than $635,836.
(f) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding Astoria's new investment in
the Company.
(g) Delivery of Evidence of Payment of Other Indebtedness. At the
Closing and as a condition thereof, the Company shall deliver to Purchaser
written evidence of the full payment and discharge of all Option 2 Creditors of
Omnis Software, Inc. and related administrative fees, which indebtedness as of
the Effective Date equaled _________________________ ($____________________) in
the aggregate.
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6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to sell and
issue the Shares of the Closing Date is, at the option of the Company, subject
to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the Purchasers
in Section 4 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature which
pertain to this Agreement, and the transactions contemplated hereby, shall have
been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchaser at the Closing shall
purchase 300,000 Preferred Shares having an aggregate purchase price of not less
than $500,000 and 2,543,344 Common Shares having an aggregate purchase price of
not less than $635,836.
(d) Payment of Purchase Price. At the Closing, Purchaser shall
execute and deliver to the Company the instruments of discharge and satisfaction
of the Astoria Indebtedness attached hereto and made a part hereof as Exhibit C;
and the full release of the security interest held by Purchaser to secure the
Astoria Indebtedness attached hereto and made a part hereof as Exhibit D.
7. Use of Proceeds. The Company shall use the proceeds from the sale of
the Shares as determined, in their sole discretion, by the management of the
Company for corporate purposes.
8. Restrictive Legend. Each certificate representing (i) the Shares,
(ii) the Conversion Stock, and (iii) any other securities issued in respect of
the Shares or Conversion Stock upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall include a legend
in substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
BE REQUIRED TO BEAR THE
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FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
9. Rights of First Refusal. The Company hereby grants to Purchaser (so
long as Purchaser holds at least 300,000 shares of Preferred Stock (or 500,100
shares of Common Stock issued on conversion thereof) (subject to appropriate
proportionate adjustments for stock splits, reverse stock splits, stock
dividend, reorganization or recapitalization without consideration affecting the
number of Shares of Common Stock outstanding) the right of first refusal to
purchase its pro rata share of "New Securities" (as defined in this Section 9)
that the Company may, from time to time propose to sell and issue. Such pro rata
share, for purposes of this right of first refusal, is the ratio of (X) the
number of shares of Common Stock immediately prior to the issuances of New
Securities then owned by Purchaser or issuable upon the conversion of the
Preferred Shares then owned by Purchaser (including shares issuable upon
exercise of options or warrants held by Purchaser), to (Y) the total number of
shares of Common Stock immediately prior to the issuances of New Securities then
outstanding, after giving effect to the conversion of all outstanding
convertible securities (including the Preferred Shares) and the exercise of all
outstanding options. This right of first refusal shall be subject to the
following provisions:
(a) "New Securities" shall mean any Common Stock and Preferred
Stock of the Company whether or not authorized on the date hereof, and rights,
options, or warrants to purchase Common Stock or Preferred Stock and securities
of any type whatsoever that are, or may become, convertible into Common Stock or
Preferred Stock; provided; however, that "New Securities" does not include the
following:
(i) upon conversion of Preferred Shares into Common
Shares;
(ii) to officers, directors, and employees of, and
consultants to, the Corporation pursuant to plans, arrangements or agreements
approved by the Board of Directors;
(iii) in connection with bona fide equipment lease
transactions, loan guarantees, commercial loans, bank financing transactions or
technology licenses approved by the Board of Directors;
(iv) pursuant to the acquisition of a company or other
entity or division thereof by the Corporation by merger, purchase of assets, or
other acquisition or reorganization approved by the Board of Directors whereby
the Corporation owns not less than fifty-one percent (51%) of the voting power
of such other company or entity or of the fair market value of the division
thereof;
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(v) pursuant to a joint venture arrangement or other
strategic financing arrangement, so long as such issuance is not primarily for
equity financing purposes;
(vi) shares of Common Stock or Preferred Stock issued
pursuant to Section 5 of the Company's Certificate of Designation authorizing
the Shares; and
(vii) shares of Common Stock issued to certain officers
and directors of the Company contemporaneously with the issuance of Shares to
Astoria.
(b) In the event that Company proposes to undertake an issuance
of New Securities, it shall give Purchaser written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Purchaser shall have ten (10)
business days after receipt of such notice to agree to purchase its pro rata
share of such New Securities at the price and upon the terms specified in the
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased.
(c) In the event that Purchaser fails to exercise in full the
right of first refusal within the ten (10) business day period specified above,
the Company shall have one hundred twenty (120) days thereafter to sell (or
enter into an agreement pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within sixty (60) days from the date of said
agreement) the New Securities respecting which the right of Purchaser was not
exercised at a price and upon terms no more favorable to the purchaser thereof
than specified in the Company's notice. In the event the Company has not sold
the New Securities within such one hundred twenty (120) day period (or sold and
issued New Securities in accordance with the foregoing within sixty (60) days
from the date of such agreement) the Company shall not thereafter issue or sell
any New Securities, without first offering such New Securities to Purchaser in
the manner provided above.
(d) The right of first refusal granted under this Section 9 shall
expire upon the date which is two years from the date hereof.
(e) This right of first refusal is nonassignable.
10. Registration Rights.
(a) the Company will register all the Common Shares to be
purchased by Astoria, as well as the Common Stock issuable upon conversion of
the Preferred Shares (collectively, the "Registrable Securities") for resale
under the Securities Act of 1933, as amended, and the securities laws of such
states as the parties may reasonably
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agree upon, on a continuous basis, beginning on a date not more than six months
after the date of the Closing; and
(b) if the registration statement covering the Registrable
Securities (the "Registration Statement") does not become effective within six
months after the date of the Closing, the Company shall reduce the consideration
paid by Astoria for the Registrable Securities by refunding to Astoria 3% of the
"Purchase Price" of the Registrable Securities for each 30-day period (pro-rated
for periods of less than 30 days) by which such effectiveness is delayed. The
Company shall also pay Astoria 3% of the Purchase Price (the "Penalty") for any
period in excess of 30 days that the effectiveness of the Registration Statement
is suspended or the Registration Statement is otherwise unavailable for use by
Astoria, excluding periods during which Astoria may sell the Registrable
Securities without restriction under Rule 144. Further, the parties argue that
the foregoing Penalty may be waived in writing by mutual agreement of the
parties. For these purposes, the Purchase Price shall be an amount equal to the
number of Registrable Securities included in the Registration Statement for
resale by Astoria times the average price per Common Share paid by Astoria
pursuant to the agreements contemplated in the Letter of Understanding (with the
shares issuable upon conversion of the Preferred Stock deemed to have been sold
at $1.00 per share).
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any right to
assign or transfer this Agreement or any of its rights or obligations hereunder
to any third person or entity without the prior written consent of the Company.
Except as limited by the foregoing, the provisions hereof shall inure to the
benefit of and be binding upon the respective officers, directors, shareholders,
affiliates, partners, members, agents, representatives, successors and assigns
of each of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject
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matter not expressly set forth herein, whether written or oral or express or
implied, shall be superseded and of no force or effect. Any modification or
amendment or waiver of this Agreement must be in writing and signed by both
parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set forth in
this Agreement are for convenience only. When the context requires, the plural
shall include the singular and the singular the plural, and any gender shall
include all other genders. No provision of this Agreement shall be interpreted
or construed against any party because such party or its counsel was the drafter
thereof.
(h) Attorney's Fees. In the event suit is brought to enforce or
interpret any part of this Agreement or any of the rights or obligations of any
party hereunder, the prevailing party shall be entitled to recover as an element
of such party's costs of suit, and not as damages, reasonable attorneys' fees
and expenses, court costs and expert witness fees and costs.
(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however,
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that such representations and warranties need only be accurate as of the date of
such execution and delivery and as of the Closing.
(j) Expenses. The Company will reimburse Purchaser promptly upon
Purchaser's request for its out-of-pocket legal expenses incurred in connection
with the negotiation of the terms of the transaction contemplated herein and in
the letter of understanding entered into between the parties dated as of
February 22, 1999.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ XXXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxxx
Chairman of the Board
000 Xxxxxxxxxx Xxxx, Xxxxxxxx X
Xxx Xxxxxx, Xxxxxxxxxx 00000
PURCHASER
ASTORIA CAPITAL PARTNERS, L.P.
By: /s/ XXXX XXX
--------------------------------
Its:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Address and Fax Number:
------------------------------------
------------------------------------
( )
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EXHIBIT A
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
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EXHIBIT B
RESTATED CERTIFICATE OF INCORPORATION
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EXHIBIT C - D
[TO BE INSERTED]
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