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EXHIBIT 10.5
OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Agreement is made as of March 31, 1999 ("Effective Date") among
OMNIS TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and
RCJ CAPITAL PARTNERS, L.P. (the "Purchaser").
In consideration of the mutual promises and representations and
warranties of the parties hereto and other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
(a) Authorization. The Company will authorize the sale and
issuance of up to Seven Million Six Hundred Thousand (7,600,000) shares (the
"Shares") of its Common Stock, $0.10 par value ("Common"), having the rights,
privileges and preferences as set forth in the Restated Certificate of
Incorporation of the Company (the "Certificate") in the form attached to this
Agreement as Exhibit A.
(b) Sale of Common. Subject to the terms and conditions
hereof, the Company will issue and sell to Purchaser and Purchaser will buy from
the Company 850,000 Shares at a price of $0.25 per share for an aggregate
purchase price of $212,500.
(c) Additional Sale of Common. Contemporaneously herewith
and subject to the same terms and conditions, the Company will issue and sell to
each of the persons and entities ("Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will buy from the Company, the total number of shares of Common
specified opposite such Purchaser's name in column 2 of Exhibit B, at the
aggregate purchase price set forth in column 3 of Exhibit B, representing a
price of Twenty-Five Cents ($0.25) per share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of
the Common hereunder shall be held at the offices of Landels Xxxxxx & Diamond,
LLP, 000 Xxx Xxxxxxxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 at 10 a.m.
local time on March 31, 1999 (the "Closing") or as soon thereafter as the
conditions to Closing set forth in paragraphs 5 and 6 have been satisfied or
waived or at such other time and place upon which the Company and the Purchasers
shall agree (the date of the Closing is hereinafter referred to as the "Closing
Date").
(b) Delivery. At the Closing, the Company shall deliver to
Purchaser a duly executed stock certificate or certificates evidencing the
Shares registered in such Purchaser's name as set forth above, representing the
number of Shares designated in
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paragraph 1(b) to be purchased by such Purchaser, against payment of the
purchase price therefor, by check payable to the Company or wire transfer
pursuant to the Company's instructions.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Organization and Standing. The Company is a corporation
duly organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets, and
to carry on its business as presently conducted.
(b) Corporate Power. The Company will have at the Closing
Date all requisite legal and corporate power and authority to execute and
deliver this Agreement, to sell and issue the Shares hereunder, and to carry out
and perform its obligations under the terms of this Agreement.
(c) Capitalization. The authorized capital stock of the
Company consists of Twenty Million (20,000,000) shares of Common Stock, of which
approximately 2,080,495 shares are issued and outstanding prior to closing, and
Three Hundred Thousand (300,000) shares of Series A Convertible Preferred Stock
("Preferred"), none of which is issued and outstanding prior to the Closing;
provided however that all of Preferred shall be issued to Astoria Capital
Partners, LP ("Astoria") and shall be outstanding following the Closing pursuant
to a separate stock purchase agreement with Astoria. The outstanding shares of
Common Stock have been duly authorized and validly issued, and are fully paid
and nonassessable. The Preferred shall have the rights, preferences, privileges
and restrictions set forth in the Certificate Of Designations of Series A
Convertible Preferred Stock of Omnis Technology Corporation substantially in the
form attached hereto and made a part hereof of Exhibit C ("Certificate of
Designations"), which shall be filed with the Delaware Secretary of State prior
to the Closing Date and shall be subject to the further action of the Board of
Directors and Preferred shareholders of the Company in accordance with Section
151 of the Delaware General Corporation Law. The Company will reserve Five
Hundred Thousand (500,000) shares of Common Stock for issuance upon conversion
of the Preferred pursuant to the terms of such Certificate of Designations, and
the Company has also reserved 1,281,199 shares of Common Stock for issuance to
employees, consultants or directors under stock plans or arrangements approved
by the Board of Directors of the Company prior to the Effective Date, of which
approximately 325,000 shares of Common Stock are subject to stock options or
warrants or other rights granted under such plans as of the Effective Date.
(d) Authorization. This Agreement, when executed and
delivered by the Company, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, such enforceability being
subject only to laws of general
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application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shares, when issued in compliance with the provisions of
this Agreement, will be validly issued, fully paid and nonassessable and will
have the rights, preferences and privileges described in the Restated
Certificate of Incorporation of the Company; and the Shares shall be free of any
liens or encumbrances, other than any liens or encumbrances created by or
imposed upon the holders thereof through no action of the Company; provided
however that the Shares will be subject to restrictions on transfer under state
and/or federal securities laws.
(e) Subsidiaries. The Company owns all outstanding capital
stock of Omnis Software, Inc., a California corporation, Omnis Holdings Limited,
a corporation organized under the laws of England, Omnis Software Limited, a
corporation organized under the laws of England, Omnis Holdings UK, a
corporation organized under the laws of England and Omnis Software GmbH, a
corporation organized under the laws of Germany.
(f) Financial Statements. The Company has delivered to each
Purchaser its audited balance sheet and statement of operations for the period
ended March 31, 1998 and its combined unaudited balance sheet and statement of
operations for the period ended December 31, 1998 (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe the financial condition and
operating results of the Company as of the dates, and during the periods,
indicated therein.
(g) Reports.
(i) The Company has delivered to each Purchaser its
Annual Report on Form 10-K for the year ended March 31, 1998 and its
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998 and December 31, 1998 as filed with the Securities
and Exchange Commission ("SEC"). Such reports have been duly filed, were
in substantial compliance with the requirements of their respective
report forms, were complete and correct in all material respects as of
the dates for which the information was furnished, and contained (as of
such dates) no untrue statement of a material fact nor omitted to state
a material fact necessary in order to make the statements made therein
in light of the circumstances in which made not misleading. Since the
date of the latest of such reports, there has not been any material
adverse change in the condition (financial or otherwise) or results of
operations of the Company.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any provision of the Restated Certificate of Incorporation or Bylaws of the
Company or any legally enforceable contract or agreement between the Company and
any third person or
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entity; and the Company is not a party to any outstanding agreement which
obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
the Company contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company with respect
to its purchase of the Shares as follows:
(a) Experience. Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.
(b) Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(c) Investment. Purchaser is acquiring the Shares for
investment for its own account, not as a nominee or agent, and not with the view
to or for resale in connection with any distribution thereof. Purchaser
understands that the Shares have not been, and may not be, registered under the
Securities Act of 1933 by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends in part upon
the bona fide nature of the investment intent and the accuracy of such
Purchaser's representations as expressed herein. No other person will have any
direct or indirect beneficial interest in or right to any of the Shares.
Purchaser further acknowledges and understands that any investment in the
Company is inherently speculative and subject to material financial risks and
that its entire investment in the Company could be lost.
(d) Rule 144. Purchaser acknowledges that the Shares must be
held indefinitely unless subsequently registered under the Securities Act of
1933 or unless an exemption from such registration is available. Purchaser is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including the requirement that the Shares be
held for a minimum of one year and in
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certain cases two years, after they have been purchased and paid for within the
meaning of Rule 44.
(e) Authority. Purchaser has all right, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Purchaser, will
constitute the legally binding valid obligations of Purchaser enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(f) Access to Data. Purchaser has had an opportunity to
discuss the business, management and financial affairs and prospects of the
Company and its subsidiaries with the Company's management and has had the
opportunity to review the United States facilities of the Company and its
subsidiaries. Purchaser acknowledges and understands that such discussions, as
well as any written information issued by the Company, were intended to describe
certain material aspects of its business and prospects but were not a thorough
or exhaustive description.
(g) Reports. Purchaser has received and reviewed the
Company's Annual Report on Form 10-K for the year ended March 31, 1998 and the
Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998,
September 30, 1998, and December 31, 1998 filed with the SEC.
(h) No Conflict. The execution and delivery of the Agreement
and the consummation of the transactions contemplated hereby will not conflict
with any legally enforceable contract or agreement between Purchaser and any
third person or entity; and Purchaser is not a party to any outstanding
agreement which obligation or agreement is inconsistent with this Agreement.
(i) Full Disclosure. The representations and warranties of
Purchaser contained in this Agreement do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein or therein in light of the circumstances under which
they were made not misleading.
(j) Brokers or Finders. The Company has not incurred and
will not incur, directly or indirectly, as a result of any action taken by
Purchaser or its representative or agent, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement or the transactions contemplated hereby. Purchaser agrees to
fully indemnify and defend and hold harmless the Company from and against all
liabilities incurred by Purchaser or any related party with respect to claims
related to investment banking or finders fees or similar claims in connection
with the transactions contemplated by this Agreement, and all costs and
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expenses (including reasonable fees of counsel) of investigating and defending
such claims.
5. PURCHASER'S CONDITIONS TO CLOSING. The Purchasers' obligations
to purchase the Shares at the Closing are subject to the fulfillment of the
following conditions, the waiver of which shall not be effective against
Purchaser who does not consent in writing thereto:
(a) Representations and Warranties Correct. The
representations and warranties made by the Company in Section 3 hereof shall be
true and correct when made, and shall be true and correct on the Closing Date.
(b) Covenants. All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or prior to the
Closing Date shall have been performed or complied with in all material
respects.
(c) Certificate of Amendment. The Certificate of
Designations shall have been filed with the Secretary of State of the State of
Delaware authorizing the issuance of the Preferred Shares.
(d) Minimum Investment. The Company at the Closing shall
sell 850,000 Shares having an aggregate purchase price of not less than
$212,500.
(e) Agreement with Astoria. The Company shall have reached a
definitive agreement with Astoria Capital regarding the restructuring of the
Astoria Indebtedness.
6. COMPANY'S CONDITIONS TO CLOSING. The Company's obligation to
sell and issue the Shares of the Closing Date is, at the option of the Company,
subject to the fulfillment as of the Closing Date of the following conditions:
(a) Representations. The representations made by the
Purchasers in Section 4 hereof shall be true and correct when made, and shall be
true and correct on the Closing Date.
(b) Legal Matters. All material matters of a legal nature
which pertain to this Agreement, and the transactions contemplated hereby, shall
have been reasonably approved by counsel to the Company.
(c) Minimum Investment. The Purchasers at the Closing shall
purchase 850,000 Shares having an aggregate purchase price of not less than
$212,500.
7. USE OF PROCEEDS. The Company shall use the proceeds from the
sale of the Shares primarily for working capital and for payment of amounts owed
by the
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Company, and as otherwise determined by the management of the Company for
corporate purposes.
8. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares
and (ii) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall include a legend in substantially the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION THEREFROM AS TO THE SECURITIES UNDER
SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
9. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of
California, and without reference to the principles of conflicts of law. All
disputes arising under this Agreement shall be brought in the Superior Court of
the State of California in San Mateo or San Francisco Counties or the Federal
Court for the Northern District of California, and such courts shall have
exclusive jurisdiction over disputes under this Agreement. Each of the parties
expressly consents to jurisdiction and venue in the state and federal courts
located in the State of California, San Mateo or San Francisco Counties, for all
purposes of this Agreement or any dispute or controversy hereunder.
(b) Successors and Assigns. Purchaser shall not have any
right to assign or transfer this Agreement or any of its rights or obligations
hereunder to any third person or entity without the prior written consent of the
Company. Except as limited by the foregoing, the provisions hereof shall inure
to the benefit of and be binding upon the respective officers, directors,
shareholders, affiliates, partners, members, agents, representatives,
successors, assigns, heirs, devisees, spouses, executors and administrators of
each of the parties hereto.
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(c) Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof ;and any prior or contemporaneous agreements, promises,
understandings, covenants, conditions, representations or warranties of any kind
or nature with regard to said subject matter not expressly set forth herein,
whether written or oral or express or implied, shall be superseded and of no
force or effect. Any modification or amendment or waiver of this Agreement must
be in writing and signed by both parties to be valid.
(d) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be delivered (i) by personal delivery, (ii) by a nationally recognized
overnight air courier service, (iii) by deposit in the United States Mail,
postage prepaid, registered or certified mail, return receipt requested, or (iv)
by telefacsimile, using facsimile equipment providing written confirmation of
receipt at the receiving facsimile number, addressed: (x) if to Purchaser, at
such Purchaser's address or telefacsimile number set forth on the signature page
hereof, or at such other address or number as Purchaser shall have furnished to
the Company in writing for such purpose, or (y) if to the Company, at its
address or telefacsimile number set forth on the signature page hereof, to the
attention of the President of the Company, or at such other address or number as
the Company shall have furnished in writing to Purchaser for such purpose.
(e) Counterparts. This Agreement may be executed in two or
more counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(g) Interpretation. The titles and section headings set
forth in this Agreement are for convenience only. When the context requires, the
plural shall include the singular and the singular the plural, and any gender
shall include all other genders. No provision of this Agreement shall be
interpreted or construed against any party because such party or its counsel was
the drafter thereof.
(h) Attorney's Fees. In the event suit is brought to enforce
or interpret any part of this Agreement or any of the rights or obligations of
any party hereunder, the prevailing party shall be entitled to recover as an
element of such party's costs of suit, and not as damages, reasonable attorneys'
fees and expenses, court costs and expert witness fees and costs.
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(i) Survival of Representations and Warranties. The
representations and warranties of the parties contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing; provided however, that such representations and warranties need
only be accurate as of the date of such execution and delivery and as of the
Closing.
(j) Expenses. The Company and each Purchaser shall bear its
own expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
OMNIS TECHNOLOGY CORPORATION,
a Delaware Corporation
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Chairman of the Board
000 Xxxxxxxxxx Xxxx, Xxxxxxxx X
Xxx Xxxxxx, Xxxxxxxxxx 00000
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PURCHASER
RCJ CAPITAL PARTNERS, L.P.
By: /s/ XXXXXXX XXXXXX
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Its:
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Address and Fax Number:
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(________) _____________________
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
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EXHIBIT B
LIST OF PURCHASERS
Number of
Purchaser Common Shares Aggregate Purchase Price
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Rockport Group 1,420,000 $ 355,000
Additional Purchasers
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Astoria Capital Partners, LP 1,000,000 $ 250,000
RCJ Capital Partners, LP 850,000 $ 212,500
Xxxxxx Xxxxxxx Charitable
Remainder Trust 1,650,000 $ 412,500
Xxxxxxx Xxxxx 80,000 $ 20,000
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TOTALS*: 5,000,000 $1,250,000
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* - In addition, 2,543, 344 Shares of Common Stock of the Company are being
issued to Astoria Capital Partners, L.P. in consideration for the
cancellation of the indebtedness of the Company currently held by the
Company in favor of Astoria Capital Partners, L.P.
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EXHIBIT C
CERTIFICATE OF DESIGNATIONS
SERIES A CONVERTIBLE PREFERRED STOCK
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