1
EXHIBIT 4.5
SECOND AMENDMENT TO
CREDIT FACILITY AGREEMENT,
PROMISSORY NOTE
AND
NON-TRANSFERABLE WARRANT
Reference is made to (1) that certain Credit Facility Agreement, dated
as of December 21, 1999, as amended April 30, 2000, by and between OMNIS
TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and ASTORIA
CAPITAL PARTNERS, L.P., a California limited partnership (the "Lender"), a copy
of which is attached hereto as Exhibit A (the "Facility Agreement"), (2) that
certain Promissory Note dated December 21, 1999 issued by the Company in
connection with the Facility Agreement, a copy of which is attached hereto as
Exhibit B (the "Promissory Note") and (3) that certain Non-Transferable Warrant
dated December 21, 1999 as amended April 30, 2000 issued by the Company to
Lender in connection with the Facility Agreement, a copy of which is attached
hereto as Exhibit C (the "Warrant").
RECITALS
WHEREAS, the Company and Lender desire to further amend the terms of the
Facility Agreement, the Warrant and the Promissory Note by this second amendment
(the "Amendment") to provide for the exercise of the Warrant and the
cancellation of the Promissory Note immediately prior to and to facilitate the
closing of the merger of Raining Merger Subsidiary, Inc. with and into PickAx,
Inc. in exchange for common stock of the Company pursuant to that certain
Agreement and Plan of Merger, dated August 23, 2000 by and among the Company,
Raining Merger Subsidiary, Inc., PickAx, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the named
stockholder of PickAx, Inc. ("Merger Transaction").
AGREEMENT
NOW THEREFORE, in consideration of the reliance of Omnis hereon in
connection with the Merger Transaction and for good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. The first sentence of Section 1.3 of the Facility Agreement, entitled
"Availability Period", shall be and is amended in its entirety to read as
follows:
"The 'Availability Period' of the line of credit commences on the
Effective Date and expires on May 31, 2000, unless there is a Change of
Control (as defined below), and the 'Maturity Date' of the line of
credit and the Note shall be November 30, 2000."
2. The second sentence of Section 2.1 of the Warrant, entitled
"Qualifying Offerings", shall be and is amended in its entirety to read as
follows:
1
2
"The term, 'Qualifying Offering' shall mean (i) 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, or (ii) the merger of Raining Merger Subsidiary, Inc. with
and into PickAx, Inc. in exchange for common stock of the Company
pursuant to that certain Agreement and Plan of Merger, dated August 23,
2000 by and among the Company, Raining Merger Subsidiary, Inc., PickAx,
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the named stockholder of PickAx, Inc.
('Merger Transaction'), with the right to exercise this Warrant
immediately prior to the Closing of the Merger Transaction."
3. The first sentence of Section 2.3 of the Warrant, entitled "Exercise
of this Warrant", shall be and is amended in its entirety to read as follows:
"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, plus all accrued and unpaid interest thereon,
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;
provided, that in the event this Warrant is exercised in connection with
the Merger Transaction, the exercise price per share for this Warrant
shall be the 'Omnis Per Share Price' as provided in Section 2.4 hereof."
4. Section 2.4 of the Warrant, entitled "Exercise Price", shall be and
is amended in its entirety to read as follows:
"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'). Notwithstanding any of the
foregoing to the contrary, in the event this Warrant is exercised in
connection with the Merger Transaction, the Exercise Price per share for
this Warrant shall be $5.00 (the 'Omnis Per Share Price'). The Exercise
Price shall be paid in cash, provided however that the Holder may elect
to cancel any outstanding debt and/or accrued interest, including the
Note, as payment of the Exercise Price; and provided further that Holder
shall
2
3
elect to cancel and terminate the Note and all principal and accrued
interest thereon in exercise of this Warrant if this Warrant is
exercised in connection with the Merger Transaction. In the case of any
non-Merger Transaction, the Holder may also exchange other securities of
the Company held at the market price thereof in payment of the Exercise
Price."
5. This Amendment is hereby attached to and made a part of the Facility
Agreement, Promissory Note and Warrant. All references to the "Credit Facility
Agreement" in the Promissory Note or the Warrant and all references to the
"Warrant" in the Facility Agreement or the Promissory Note shall be deemed to
refer to the Facility Agreement or Warrant, as the case may be, as amended by
this Amendment.
6. The terms of this Amendment shall prevail over any conflicting
provisions of the Facility Agreement, Promissory Note or Warrant, but each of
such instruments shall otherwise be constituted and interpreted together with
this Amendment as a single integrated agreement. As amended hereby the Facility
Agreement, Promissory Note and Warrant each remains in full force and effect.
(remainder of page intentionally blank)
3
4
IN WITNESS THEREOF, the parties have executed this Amendment as of
August 31, 2000.
COMPANY: RAINING DATA CORPORATION F/K/A
OMNIS TECHNOLOGY CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
LENDER: ASTORIA CAPITAL PARTNERS, L.P.,
a California limited partnership
By: Astoria Capital Management, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇
President, Astoria Capital
Management, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
4
