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EXHIBIT 10.1
OMNIS TECHNOLOGY CORPORATION
STOCK PURCHASE AGREEMENT
SERIES A CONVERTIBLE PREFERRED
DECEMBER 31, 1998
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a. Experience. It is experienced in purchasing and selling
investments in high technology companies such as the Company, and it has fully
evaluated the advisability of selling the Shares.
b. Tax Consequences. It understands and acknowledges that any
transaction structured in the manner provided for herein involves certain tax
risks, and neither the Company nor any of its officers, directors, agents or
employees has made any representations to Astoria as to the federal and state
tax consequences of the transactions contemplated by this Agreement.
c. Authority. It has all corporate rights, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby, and this Agreement, once executed by the Company and Astoria, will
constitute legally binding valid obligations of Astoria enforceable in
accordance with its terms, such enforceability being subject only to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
d. Ownership. It has, and at the Closing shall have, good and
marketable title to the Shares and full, complete and unrestricted legal right,
power and authority to transfer, assign and deliver title to the Shares free and
clear of all liens, mortgages, charges, liabilities, claims, security interests
or encumbrances of every type whatsoever. The sale, conveyance, transfer and
delivery of the Shares by Astoria to the Company pursuant to this Agreement will
transfer full legal and equitable right, title and interest in the Shares to the
Company, free and clear of all liens, mortgages, charges, claims, liabilities,
security interests and encumbrances of any nature whatsoever.
e. Access to Data. It has had an opportunity to discuss each
of the Company's and the Company's subsidiaries' (collectively "Omnis")
business, management, and financial affairs with the Company's management and
the opportunity to review Omnis' facilities. It understands that such
discussions, as well as any written information issued by Omnis, were intended
to describe the aspects of Omnis' business and prospects which it believes to be
material but were not necessarily a thorough or exhaustive description.
f. Condition of the Company. Astoria has received and reviewed
the Company's Annual Report on Form 10-K for the year ended March 31, 1998 and
on the Quarterly Reports on Form 10-Q for the quarters ended June 30, 1998 and
September 30, 1998 filed with the SEC, and all reports required to be filed by
the Company thereafter up to the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Astoria as follows:
a. Corporate Organization and Authority of the Company. The
Company and each of its subsidiaries:
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(1) is a corporation duly organized, validly existing, authorized to
exercise all its corporate powers, rights and privileges and in good standing in
the state or jurisdiction of its incorporation;
(2) has the corporate power and authority to own and operate its
properties and to carry on its business as presently conducted and as proposed
to be conducted; and
(3) is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its property or the nature of its
business requires such qualification, except where failure to so qualify would
not have a material adverse effect on the business, properties or financial
condition of the Company and its subsidiaries, taken as a whole. The Company has
made available to Astoria true and correct copies of its Certificate of
Incorporation and Bylaws as amended.
b. Corporate Power. The Company agrees to take such action as may be
reasonably required to enable it to purchase the Shares as contemplated by this
Agreement in compliance with applicable restrictions on purchases imposed by
Section 160 of the General Corporation Law of the State of Delaware. Subject to
completion of the foregoing, the Company will have at a Closing Date all
requisite legal and corporate power and authority to execute and deliver the
Agreement, to purchase the Shares hereunder and to carry out and perform its
obligations under the terms of the Agreement.
c. Capitalization.
(1) The authorized capital stock of the Company consists
of:
(a) Common Stock. 4,000,000 shares of Common Stock,
$0.10 par value, of which approximately 2,129,205 shares were issued and
outstanding as of October 1, 1998, taking into account the Reverse Stock Split.
(b) Preferred Stock. 300,000 shares of Preferred
Stock of which 124,564 shares are issued and outstanding, taking into account
the Reverse Stock Split.
(c) All outstanding shares of the Company's Common
Stock have been duly authorized and validly issued (including, without
limitation, issued in compliance with applicable federal and state securities
laws), and are fully-paid and nonassessable.
(d) As of April 1, 1998, the Company had reserved
178,310 shares of Common Stock (taking into account the Reverse Stock Split) for
future issuance to employees, officers, directors, and consultants of the
Company pursuant to employee stock benefit plans or agreements approved by the
Board of Directors, in addition to outstanding warrants for 73,562 shares of
Common Stock. There are no other options, warrants, conversion privileges or
other contractual rights presently outstanding to purchase
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or otherwise acquire any shares of the Company's capital stock or other
securities (whether or not authorized).
(2) The Company owns all outstanding capital stock of
Omnis Software, Inc., a California corporation (the "Company"), 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.
d. Authorization. All corporate action on the part of the
Company and its officers, directors and stockholders necessary for the
authorization, execution, delivery and, subject to completion of the actions to
be performed pursuant to the first sentence of Section 3.b., the performance by
the Company of all its obligations under this Agreement has been taken; and this
Agreement, once executed by the Company and Astoria, will constitute legally
binding valid obligations 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.
e. No Conflict. The execution and delivery of the Agreement do
not, and the consummation of the transactions contemplated hereby and, subject
to completion of the actions to be performed pursuant to the first sentence of
Section 3.b., the performance of the obligations hereunder will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
in time, or both), 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 Certificate of Incorporation or Bylaws of the Company.
f. Accuracy of Reports. The Company's Annual Report on Form
10-K for the year ended March 31, 1998 and on the Quarterly Reports on Form 10-Q
for the quarters ended June 30, 1998 and September 30, 1998 filed with the SEC,
and all reports required to be filed by the Company thereafter up to the date of
this Agreement under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), copies of which have been made available to Astoria, 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 at 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.
g. Governmental Consent, etc. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of the Company is required in connection with the valid
execution and delivery of this Agreement.
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h. Full Disclosure. The representations and warranties of the
Company contained in this Agreement and the certificates prepared or supplied to
Astoria by the Company 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.
i. Litigation. Except as disclosed in writing to Astoria,
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 such agreement, or to consummate the transactions contemplated hereby.
4. 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
by California residents.
b. Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
c. Entire Agreement. The Agreement and the other documents
delivered hereto and thereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
Neither the Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
d. Notices, etc. Any notice and other communications as
required or permitted under the Agreement shall be mailed, by registered or
certified mail, postage prepaid with return receipt requested, or otherwise
delivered by hand, addressed (a) if to Astoria, at such Astoria's address set
forth on the signature page hereof, or at such other address as Astoria shall
have furnished to the Company in writing, or (c) if to the Company, at its
address set forth on the signature page hereof, or at such other address as the
Company shall have furnished in writing to Astoria.
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. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
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g. Headings. Headings and the table of contents in this
Agreement are for reference purposes only and shall not be deemed to have any
substantive effect.
h. 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.
i. Amendment of Agreement. Any provision of this Agreement may
be modified or amended by a written instrument signed by the Company and by
Astoria.
j. Finder's Fees. Each of the Company and Astoria represents
and warrants to the other that no person is entitled, directly or indirectly, to
compensation by reason of any contract or understanding with such party, as a
finder or broker in connection with the sale and purchase of the Shares
hereunder. Each of the Company, on the one hand, and Astoria, on the other hand,
will indemnify the other against all liabilities incurred by the indemnifying
party with respect to claims related to investment banking or finders fees in
connection with the transactions contemplated by this Agreement, arising out of
arrangements between the party asserting such claims and the indemnifying party,
and all costs and expenses (including reasonable fees of counsel) of
investigating and defending such claims.
The foregoing Series A Convertible Preferred Stock Purchase Agreement is hereby
executed as of the date first above written.
ASTORIA CAPITAL PARTNERS, L.P.
OMNIS TECHNOLOGY CORPORATION, a Delaware by: ASTORIA CAPITAL MANAGEMENT,
corporation its General Partner
By: By:
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Xxxxxxx Xxxxxx Xxxxxxx Xxx
Chairman of the Board President
000 Xxxxxxxxxx Xxxx, Xxxxxxxx X 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
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