Exhibit 10.5
OMNIS TECHNOLOGY CORPORATION
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "Agreement") is effective as of
August 23, 2000, by and between OMNIS TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and _________________________________ (the
"Lender).
1. The Loan and Note.
1.1. The Loan. Subject to the terms and conditions of this
Agreement, Lender agrees to make a loan (the "Loan") to the Company at the
Closing in the aggregate principal amount of ____________________ Dollars
($________) ("Principal Amount") to be governed by the terms and conditions of,
and repaid in accordance with, this Agreement and that certain Nonsecured
Convertible Promissory Note of the Company in the form attached hereto and made
a part hereof as Exhibit A (the "Note").
1.2. The Note and Other Notes. The Loan made by the Lender
pursuant hereto shall be evidenced by the Note. The Note is one of several
similar notes to be issued concurrently by the Company in the aggregate
principal amount of approximately Seven Hundred Fifty Thousand Dollars
($750,000) (the "Other Notes").
1.3. Closings. The purchase and sale of the Note (the
"Closing") will take place at the principal offices of the Company at 000
Xxxxxxxxxx Xxx, Xxx Xxxxxx, Xxxxxxxxxx 00000 at such date and time as the
parties shall mutually agree, or in lieu of such agreement, on August 23, 2000
at 1:00 pm Pacific time. At the Closing, the Company will deliver the duly
executed Note to the Lender, and the Lender shall deliver the Principal Amount
to the Company in the form of a bank cashier's check or by wire transfer as the
Company may direct.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Lender as follows:
2.1. Organization, Standing and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as contemplated to be conducted (the "Business"). The Company is duly qualified
and in good standing to conduct business in each jurisdiction in which the
business it is conducting, or the operation, ownership or leasing of its
properties, makes such qualification necessary, except where the failure to be
so qualified would not result in a Material Adverse Effect (as defined below).
For purposes of this Agreement, the term "Material Adverse Effect" means any
material adverse change in, or material adverse effect on, the business, assets,
results of operations, value or condition (financial or otherwise) of the
Company and/or the Business (individually or taken as a whole), or any event or
circumstance which would likely prevent, hinder or materially delay the
consummation of any of the transactions contemplated by this Agreement or the
Note.
2.2. Authority and Enforceability. The Company has all
requisite corporate power and authority to execute and deliver this Agreement
and the Note and to perform fully its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Note and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement and
the Note have been duly executed and delivered by the Company and, assuming this
Agreement and
28
the Note constitute valid and binding agreements of the other parties hereto and
thereto, this Agreement and the Note constitute the legal, valid and binding
agreement and obligation of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity regardless of whether
enforceability is considered in a proceeding at law or in equity.
3. Representations and Warranties of the Lender. The Lender hereby
represents and warrants to the Company that:
3.1. Authorization. The Lender has full power and authority to
enter into this Agreement and the Note (collectively, the "Loan Agreements") and
the Loan Agreements constitute valid and legally binding agreement and
obligations of the Lender, enforceable in accordance with their respective
terms.
3.2. Purchase Entirely for Own Account. The Note and the
Common Stock of the Company issuable upon conversion of the Note (collectively,
the "Securities") are being acquired by the Lender for investment for its own
account, and not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Lender has no present intention of
selling, granting any participation in, or otherwise distributing the same. The
Lender does not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation in any of the Securities to
such person or to any third person. The Lender has not been organized for the
purpose of acquiring the Securities.
3.3. Disclosure of Information. The Lender understands that
any loan to the Company or investment in the Securities involves substantial
risks. The Lender has been given the opportunity to make a thorough
investigation of the business and activities of the Company. The Lender further
has been afforded the opportunity to obtain any additional information deemed
necessary by the Lender to verify the accuracy of any representations made or
information conveyed to the Lender. The Lender has had an opportunity to ask
questions of and receive answers from the Company or its officers concerning the
Company and the terms and conditions of the offering and sale of this Agreement
and the Note.
3.4. Investment Experience. The Lender, by reason of its
business and financial experience has such knowledge, sophistication and
experience in financial and business matters and in making investment and
lending decisions of this type that it is capable of (i) evaluating the merits
and risks of an investment in the Securities and making an informed investment
decision, (ii) protecting its own interests and (iii) bearing the economic risk
of such investment, including the complete loss thereof.
3.5. Accredited Investor. The Lender is an "accredited
investor" within the meaning of the Securities and Exchange Rule 501(a) of
Regulation D of the Securities Act of 1933 ("Securities Act"), as presently in
effect.
3.6. Restricted Securities. The Lender understands that the
Securities have not been registered under the Securities Act of 1933
("Securities Act") or state securities laws subject to the prior approval of
Omnis following the execution of the Agreement and Plan of Merger. by reason of
a specific exemption from the registration provisions of the Securities Act and
applicable state securities laws that depends upon, among other matters, the
bona fide nature of the investment intent and the accuracy of the Lender's
representations as expressed in this Agreement. The Lender further understands
that the Company shall have no obligation to register the Securities under the
Securities Act or any state securities laws or to take any action that would
make available any exemption from the registration requirements of such laws.
The Lender hereby acknowledges that because of the restrictions on transfer or
assignment of the Securities the Lender may have to bear the economic risk of
the investment commitment in the Securities for an indefinite period of time.
29
3.7. Further Limitations on Disposition. The Lender will
observe and comply with the Securities Act and the rules and regulations
promulgated thereunder, as now in effect and as from time to time amended, in
connection with any offer, sale, pledge, transfer or other disposition of the
Securities. In furtherance of the foregoing and without limiting any other
representations and warranties in this Agreement, the Lender will not offer to
sell, exchange, transfer, pledge, or otherwise dispose of any of the Securities
unless at such time at least one of the following is satisfied:
(a) There is then in effect a Registration Statement
under the Securities Act as filed with the United States Securities and
Exchange Commission covering such proposed disposition; and such
disposition is made in accordance with such Registration Statement;
(b) Such transaction shall be permitted pursuant to
the provisions of SEC Rule 144;
(c) (i) the Lender shall have notified the Company of
the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed
disposition, and (ii) if requested by the Company, the Lender shall
have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company and its counsel, that such disposition will
not require registration of such shares under the Securities Act or
registration or qualification under any applicable state securities
laws; or
(d) An authorized representative of the SEC shall
have rendered written advice to the Lender (sought by the Lender or
counsel to the Lender, with a copy thereof and of all other related
communications delivered to the Company) to the effect that the SEC
would take no action with respect to the proposed sale, transfer or
other disposition if consummated; and such proposed sale, transfer or
other disposition did not violate any applicable state securities laws.
3.8 Legends. It is understood that the certificates evidencing
the Securities or any substitute therefor may bear one or all of the following
legends or their substantial equivalent:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED;" and
(b) Any legend required by the laws of the State of
California or any other applicable state. The Company may issue stop
transfer instructions to its transfer agent in connection with such
restrictions.
4. Pari Passu with All Other Notes. The Note shall have no preference
or priority of any kind with respect to each of the Other Notes issued by the
Company concurrently herewith.
5. Conditions to Closing.
5.1. Conditions of the Lender's Obligations at Closing. The
obligations of the Lender at the Closing are subject to the fulfillment, on or
prior to the date of Closing, of each of the following conditions, any of which
may be waived in whole or in part by the Lender in writing:
30
(a) The representations and warranties made by the
Company in Section 2 shall be true and correct when made, and shall be
true and correct on the date of Closing with the same force and effect
as if they had been made on and as of the same date.
(b) The Company shall have performed and complied
with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on
or prior to the date of Closing.
(c) Except for the notices required or permitted to
be filed after the date of Closing pursuant to applicable federal and
state securities laws, the Company shall have obtained all governmental
approvals required in connection with the lawful sale and issuance of
the Note.
(d) At the Closing, the sale and issuance by the
Company, and the purchase by the Lender, of the Note shall be legally
permitted by all laws and regulations to which the Lender or the
Company are subject.
5.2. Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Note at the Closing or otherwise engage in the
contemplated transactions is subject to the fulfillment to the Company's
satisfaction on or prior to the date of Closing of the following conditions, any
of which may be waived in whole or in part by the Company:
(a) The representations and warranties made by the
Lender in Section 3 shall be true and correct when made, and shall be
true and correct on the date of Closing with the same force and effect
as if they had been made on and as of the same date.
(b) Except for any notices required or permitted to
be filed after the date of Closing pursuant to applicable federal or
state securities laws, the Company shall have obtained all governmental
approvals required in connection with the lawful sale and issuance of
the Securities.
(c) At the Closing, the sale and issuance by the
Company, and the purchase by the Lender, of the Note shall be legally
permitted by all laws and regulations to which the Lender or the
Company are subject.
5.3. Reservation of Stock. The Company covenants that during
the period the Note is convertible in accordance with its terms, the Company
will (i) reserve from its authorized and unissued Common Stock, a sufficient
number of shares to provide for the issuance of Common Stock upon conversion of
the Note or (ii) and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of the entire
outstanding principal and accrued and unpaid interest on the Note, in addition
to such other remedies as shall be available to the Lender, the Company will use
its best efforts to take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purposes.
6. Miscellaneous.
6.1. Governing Law. This Agreement and the Note shall be
governed by and construed in accordance with the laws of the State of
California, without regard to conflict of laws principles.
6.2. Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Lender and
the Closing of the transactions contemplated hereby.
31
6.3. Successors and Assigns. Except as otherwise expressly
provided herein and subject to any restrictions on transfer under applicable
securities laws, the provisions hereof shall inure to the benefit of and be
binding upon each of the parties; the successors and assigns of the Company; and
the heirs, devisees, executors, administrators, representatives, successors and
assigns of the Lender.
6.4. Entire Agreement. This Agreement and the Note constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof. Any prior or contemporaneous
agreements, representations or warranties not expressly set forth in this
Agreement or the Note are superseded and of no force or effect. This Agreement
or the Note may be modified or amended or waived only by an instrument in
writing executed by both of the parties.
6.5. Notices, etc. ALL NOTICES OR OTHER COMMUNICATIONS
HEREUNDER OR UNDER THE NOTE SHALL BE IN WRITING AND SHALL BE DELIVERED PREPAID
(A) BY PERSONAL DELIVERY, (B) BY A NATIONALLY RECOGNIZED OVERNIGHT COURIER
SERVICE, OR (C) BY UNITED STATES FIRST CLASS REGISTERED OR CERTIFIED MAIL RETURN
RECEIPT REQUESTED; AND THE DATE OF DELIVERY SHALL BE DEEMED TO BE THE EARLIER OF
(I) ACTUAL RECEIPT OF NOTICE BY ANY PERMITTED MEANS, OR (II) THREE BUSINESS DAYS
FOLLOWING DISPATCH BY OVERNIGHT DELIVERY SERVICE OR THE UNITED STATES MAIL. SUCH
NOTICES SHALL BE ADDRESSED TO EACH PARTY AT THEIR RESPECTIVE ADDRESSES AS SET
FORTH ON THE SIGNATURE PAGE OF THIS AGREEMENT; OR SUCH OTHER ADDRESS OR PROVIDED
BY NOTICE TO THE OTHER PARTY AS HEREIN PROVIDED.
6.6. Severability of this Agreement. If any provision of this
Agreement or the Note shall be judicially determined to be invalid, illegal or
unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any manner be affected
or impaired and shall remain in full force and effect.
6.7 Interpretation. Sections and section headings contained in
this Agreement or the Note are for reference purposes only, and shall not affect
in any manner the meaning of interpretation of this Agreement or the Note.
Whenever the context requires, references to the singular shall include the
plural and the plural the singular and any gender shall include any other
gender. The parties acknowledge that each party has reviewed this Agreement and
the Note, and no provision of this Agreement or the Note shall be interpreted
for or against any party because such party or its representative drafted such
provision.
6.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall be deemed to constitute one instrument.
6.9. Expenses. Regardless of whether the Closing is effected,
each party shall bear all of its own costs and expenses with respect to the
negotiation, execution, delivery and performance of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
OMNIS TECHNOLOGY CORPORATION
By: __________________________________
Name: ________________________________
Title: _______________________________
Address: 000 Xxxxxxxxxx Xxx
00
Xxx Xxxxxx, Xxxxxxxxxx 00000
LENDER:
______________________________________
(Print Name)
By: __________________________________
Title (If Any): ______________________
Address: _____________________________
______________________________________
______________________________________
33
SCHEDULE A
NONSECURED CONVERTIBLE PROMISSORY NOTE
A-1
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED
OMNIS TECHNOLOGY CORPORATION
NONSECURED CONVERTIBLE PROMISSORY NOTE
$_____________________________ August 23, 2000
San Carlos, California
1. Principal and Interest.
1.1. Omnis Technology Corporation, a Delaware Corporation (the
"Company"), for value received, hereby promises to pay to the order of
_________________________ (the "Lender" or the "Holder") the amount of
___________________________________ ("Principal") plus accrued interest in
lawful money of the United States or as otherwise hereinafter set forth. This
Loan is being made to the Company pursuant to that certain Note Purchase
Agreement between the parties of even date herewith of which this Note is a part
("Agreement").
1.2 This Nonsecured Convertible Promissory Note (the "Note")
shall bear interest at the rate of Four Percent (4%) per annum on the Principal
from the date of issuance of this Note until paid in full or converted into
shares of Common Stock of the Company pursuant to Section 4 hereof. No payment
of Principal or interest under this Note shall be due until August 23, 2002 (the
"Maturity Date") unless there is an Event of Default (as defined in Section 2
hereof) in which case such payment shall be accelerated. Interest on this Note
shall compound semi-annually. This Note is not secured by any assets or
securities of the Company.
1.3 Upon payment in full of the Principal hereof and accrued
interest hereunder or upon conversion thereof, this Note shall be cancelled and
shall be surrendered to the Company.
1.4 The Principal and interest on this Note shall be payable
to the Holder hereof at such address as the Holder shall from time to time
designate by written notice to the Company pursuant to the Agreement.
2. Events of Default. The occurrence of any one or more of the
following events, shall constitute an "Event of Default" hereunder:
2.1 Any representation or warranty of the Company herein or in the
Agreement shall be untrue or incorrect as of the date when made in any material
respect, when considered together with the other such representations and
warranties made by the Company and in light of the circumstances under which
they were made; or
2.2 (a) The commencement of a voluntary petition in bankruptcy or the
filing of a petition to have the Company declared bankrupt or insolvent or the
filing of any other petition of reorganization, arrangement or similar relief by
or for the Company under any applicable law regarding insolvency or relief for
debtors, unless such proceeding is vacated, discharged, or stayed or bonded
pending appeal within 60 days from the commencement thereof ; (b) the making by
the Company of a general assignment for the
A-2
benefit of creditors or any similar undertaking; (c) the appointment of a
receiver, trustee or similar officer for the business or property of the
Company, which appointment is not vacated, discharged, or stayed or bonded
pending appeal within 60 days from such appointment; or (d) the admission by the
Company in writing of its inability to pay its debts generally as such debts
become due.
3. Remedies. The Holder shall have such remedies upon occurrence of an
Event of Default under this Note as provided herein or by applicable law,
provided however and in such Event the Company and Holder shall immediately
consult in good faith with one another in an attempt to agree upon a mutually
agreeable resolution.
4. Conversion.
4.1 Automatic Conversion. Subject to Section 5 hereof, all
then outstanding Principal and accrued and unpaid interest hereunder shall be
automatically converted on the Maturity Date into a number of fully paid and
non-assessable whole shares of Common Stock of the Company, $0.10 par value (the
"Common Stock") at a conversion price of Six Dollars and Seventeen Cents ($6.17)
per share (the "Conversion Price"). Upon conversion hereunder this Note shall be
canceled and no further amounts shall be due hereunder. Absent an election to
convert by the Holder, this Note shall not be convertible upon acceleration
hereof following an Event of Default.
4.2 Voluntary Conversion. Subject to Section 5 hereof, at any
time before the Maturity Date, the Holder of this Note may elect by written
notice to the Company duly executed by the Holder to convert all or any portion
of the then outstanding Principal and accrued and unpaid interest hereunder into
fully paid and non-assessable whole shares of Common Stock of the Company at the
Conversion Price.
4.3 Shares Issuable; No Fractional Shares. The number of whole
shares of Common Stock into which this Note may be converted shall be determined
by dividing the amount of Principal and interest being converted as of the date
of conversion by the Conversion Price. No fractional shares of Common Stock
shall be issued upon conversion of this Note and in lieu of fractional shares,
the Holder upon such conversion shall be paid an amount in cash by the Company,
without interest and rounded down to the nearest cent, determined by multiplying
the fractional interest to which the Holder would otherwise be entitled by the
Conversion Price.
4.4 Delivery of Note and Stock Certificates. Upon the
conversion of this Note and return of the original Note to the Company, the
Company will issue and deliver to the Holder of this Note a certificate or
certificates (bearing such legends as are required by applicable state and
federal securities laws in the opinion of counsel to the Company and as further
provided by the Agreement) for the number of full shares of Common Stock
issuable upon such conversion. In the event this Note is only partially
converted, the original of the duly executed written notice of conversion by the
Holder shall be delivered to the Company and shall constitute a legally binding
amendment of this Note; and the total amount of the Principal and interest owed
hereunder shall be reduced and offset by the amount of such Conversion.
A-3
5. Payment or Prepayment; Conversion within Notice Period.
Notwithstanding any contrary provision hereof, the Company shall have the right
at any time and from time to time, including on the Maturity Date, upon ten (10)
business days written notice to the Holder ("Notice Period"), to pay or prepay
the Principal in whole or in part plus accrued interest thereon to date of
payment without penalty; provided however that the Holder may at any time during
any Notice Period elect to convert outstanding Principal and accrued interest
for shares of Common Stock hereunder by written notice to the Company in an
amount equal to or greater than the proposed payment or prepayment amount and
provided further that if Holder elects to convert in an amount equal to or
greater than any proposed payment or prepayment amount, then the Company shall
not make such noticed payment or prepayment and such conversion shall be
pursuant and subject to the other provisions hereof. The Company may further
exercise its right to pay or prepay all or any part of this Note at any time
notwithstanding any one or more partial prepayments or conversions hereunder.
6. Binding Effect. Except as otherwise expressly provided herein and
subject to any restrictions on transfer under applicable securities laws, the
provisions hereof shall inure to the benefit of and be binding upon each of the
parties; the successors and assigns of the Company; and the heirs, devisees,
executors, administrators, representatives, successors and assigns of the
Holder.
7. Transfer of This Note or Common Stock Issuable on Conversion
Hereof. With respect to any proposed offer, sale or other disposition of this
Note or Common Stock of the Company into which this Note may be converted, the
Holder will give written notice to the Company prior thereto and shall otherwise
comply with the terms and conditions of the Agreement.
8. Notices. Any notice or other communication or payment required or
permitted hereunder shall made pursuant to the notice provisions set forth in
the Agreement.
9. Governing Law. This Note is being delivered in and shall be
construed in accordance with the laws of the State of California, without regard
to conflicts of laws principles.
10. Entire Agreement. THIS NOTE AND THE AGREEMENT CONSTITUTE THE FULL
AND ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE
SUBJECT MATTER HEREOF AND THEREOF. ANY PRIOR OR CONTEMPORANEOUS AGREEMENTS,
REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THIS NOTE OR THE
AGREEMENT ARE SUPERSEDED AND OF NO FORCE OR EFFECT. THIS NOTE MAY BE MODIFIED OR
AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY BOTH OF THE
PARTIES.
11. Severability. If any provision of this Note shall be judicially
determined to be invalid, illegal or unenforceable by a court of competent
jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any manner be affected or impaired and shall remain in
full force and effect.
A-4
12. Interpretation. SECTIONS AND SECTION HEADINGS CONTAINED IN THIS
NOTE ARE FOR REFERENCE PURPOSES ONLY, AND SHALL NOT AFFECT IN ANY MANNER THE
MEANING OF INTERPRETATION OF THIS NOTE. WHENEVER THE CONTEXT REQUIRES,
REFERENCES TO THE SINGULAR SHALL INCLUDE THE PLURAL AND THE PLURAL THE SINGULAR
AND ANY GENDER SHALL INCLUDE ANY OTHER GENDER. THE PARTIES ACKNOWLEDGE THAT EACH
PARTY HAS REVIEWED THIS NOTE, AND NO PROVISION OF THIS NOTE SHALL BE INTERPRETED
FOR OR AGAINST ANY PARTY BECAUSE SUCH PARTY OR ITS REPRESENTATIVE DRAFTED SUCH
PROVISION.
13. Collection Costs. The Company promises to pay any and all costs of
collection, including reasonable attorneys' fees, incurred in the collection of
this Note following an Event of Default.
14. Waiver by the Company. The Company hereby waives demand, notice,
presentment, protest and notice of dishonor with respect to the enforcement of
this Note in accordance with its express terms.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in
its corporate name and this Note to be dated, issued and delivered, all on the
date first above written.
OMNIS TECHNOLOGY CORPORATION
By: ___________________________________
Name
Title _________________________________
A-5
