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EXHIBIT 4.2
RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT - PICKAX NOTE
This Agreement is made as of December 4, 2000 (the "Effective Date")
among RAINING DATA CORPORATION fka OMNIS TECHNOLOGY CORPORATION, a Delaware
corporation (the "Company"), and ASTORIA CAPITAL PARTNERS, L.P., a California
limited partnership (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 Two Million One Hundred Thousand (2,100,000) shares of its Common Stock,
$0.10 par value ("Common Stock"), 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 the Shares. Subject to the terms and conditions hereof, the
Company will issue and sell to the Purchaser, and the Purchaser will buy from
the Company, One Million Five Thousand Five Hundred Forty-Eight (1,005,548)
shares of its Common Stock (the "Shares") at a price of Four Dollars Twelve and
One-Half Cents ($4.125) per share for an aggregate purchase price of Four
Million One Hundred Forty Seven Thousand Eight Hundred Eighty-Six Dollars
($4,147,886)(the "Purchase Price"). Contemporaneously herewith and subject to
the same terms and conditions, the Company will cause the issuance of and sell
to each of the persons and entities (the "Additional Purchasers") listed on the
Schedule of Purchasers attached hereto as Exhibit B and the Additional
Purchasers will purchase from the Company, the total number of shares of Common
Stock specified opposite such Additional 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 Four Dollars Twelve and One-Half Cents ($4.125) per
share.
2. CLOSING DATES; DELIVERY.
(a) Closing Date. The closing of the purchase and sale of the Shares
hereunder shall be held at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 4 p.m. local time on
December 4, 2000 (the "Closing") or as soon thereafter as the conditions to the
Closing set forth in
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Sections 5 and 6 have been satisfied or waived or at such other time and place
upon which the Company and the Purchaser shall agree (the "Closing Date").
(b) Delivery. As of the Closing, the Company shall issue irrevocable
instructions to its transfer agent to cause the issuance to the Purchaser of a
duly executed stock certificate or certificates evidencing the Shares registered
in the Purchaser's name as set forth above, representing the number of Shares
designated in Section 1(b) to be purchased by the Purchaser.
(c) Payment of Purchase Price. As full payment of the Purchase Price
hereunder, Purchaser agrees effective as of the Closing that the certain PickAx,
Inc. Promissory Note, dated July 31, 2000, as amended, in the principal amount
of Four Million Dollars ($4,000,000)("PickAx Note"), plus all interest thereon
and all related obligations and liabilities are and shall be fully and
irrevocably cancelled and forgiven and deemed fully released and discharged as
to all persons or entities, automatically and without any further act. At the
Closing Purchaser shall deliver the original PickAx Note to the Company and will
further promptly execute and deliver such other instruments in form and
substance satisfactory to the Company, as the Company may reasonably request, to
further evidence and effect the full and irrevocable cancellation and
forgiveness and discharge and release of the PickAx Note.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as specifically set forth in any disclosure schedule provided by
the Company and attached hereto (the "Disclosure Schedule"), the parts of which
are numbered to correspond to the Section numbers of this Agreement, the Company
hereby represents and warrants to the Purchaser as follows:
(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 and is qualified to do business in the State of California.
The Company and each of its subsidiaries in the United States and the United
Kingdom 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) Authority. The execution, delivery and performance by the Company of
this Agreement and the Registration Rights Agreement (as defined below) and all
other agreements or instruments related thereto have been duly authorized by all
necessary action on the part of the Company and its board of directors. The
Company has all right, power and authority to enter into, execute and deliver
this Agreement and the Registration Rights Agreement and to consummate the
transactions contemplated hereby with the Purchaser, and this Agreement and said
Registration Rights Agreement, once executed by the Company and the Purchaser,
will constitute the legally binding
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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.
(c) Capitalization.
(i) On December 1, 2000 a Certificate of Merger was filed with
the Delaware Secretary of State effecting the merger transaction between the
Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick Merger") pursuant
to the terms and conditions of that certain Agreement and Plan of Merger between
said parties and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of August 23, 2000 as amended
(attached as an Exhibit to the Merger Proxy Statement (as hereinafter defined)
provided to the Purchaser hereunder). Pursuant to the Pick Merger, the Company
acquired all of the capital stock of PickAx, Inc., a Delaware corporation, and
the Company changed its name to Raining Data Corporation.
(ii) As of the Effective Date the authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock, of which 10,278,230
shares were issued and outstanding immediately prior to the Pick Merger and an
additional 3,493,369 shares are being issued and will be outstanding in
connection with the Pick Merger; and 300,000 shares of Series A Convertible
Preferred Stock ("Preferred Stock"), all of which are issued and outstanding.
Such shares do not include the issuance or assumption or exercise of any
outstanding options or warrants to purchase capital stock of the Company as of
the Effective Date or the Closing Date.
(iii) The outstanding shares of Common Stock and Preferred Stock
have been duly authorized and validly issued, and are fully paid and
nonassessable and were issued in compliance with applicable federal and state
securities laws, subject to the reliance of the Company on representations made
by the purchasers thereof. The Preferred Stock has the rights, preferences,
privileges and restrictions set forth in the Certificate Of Designations of
Series A Convertible Preferred Stock of Raining Data Corporation fka Omnis
Technology Corporation substantially in the form attached hereto and made a part
hereof as Exhibit C ("Certificate of Designations").
(iv) There are no options, warrants, conversions, privileges or
other contractual rights presently outstanding to purchase or otherwise acquire
any shares of the stock or other securities of the Company, except for (1) stock
options granted to employees, directors and contractors of the Company or its
subsidiaries; (2) warrants or stock options granted or assumed in connection
with the Pick Merger; (3) that certain warrant to purchase 500,000 shares of the
Common Stock of the Company at an exercise price of $7 per share granted to
Astoria Capital Partners, L.P.; and (4) a de minimis amount which may be
unaccountable due to past record keeping practices.
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(d) Shares. The Shares, when issued in compliance with the provisions of
this Agreement, 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 described in
the Certificate; 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 federal and securities laws and the
terms and conditions of this Agreement and the Registration Rights Agreement,
including but not limited to the representations and warranties of the Purchaser
being relied upon by the Company hereunder as the basis for federal and state
securities law exemptions.
(e) Subsidiaries. As of the Effective Date, 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. As of December
1, 2000 the Company also acquired all of the outstanding capital stock of
PickAx, Inc., a Delaware corporation.
(f) Financial Statements. The Company has delivered to the Purchaser (i)
the audited consolidated balance sheet of the Company as of March 31, 2000, and
the related audited statements of operations, changes in stockholder's equity
and cash flows of the Company for the fiscal year ended March 31, 2000, together
with the notes thereto and the report and certification of auditor relating
thereto; and (ii) the unaudited consolidated balance sheet of the Company as of
September 30, 2000 and the unaudited statements of operations, changes in
stockholder's equity and cash flows of the Company as of September 30, 2000 for
the six (6) months then ended, together with the notes thereto; all as part of
the SEC Filings provided to the Purchaser hereunder (collectively the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and accurately set out and describe in all material respects 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 the Purchaser copies of the
Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 2000 as filed
with the Securities and Exchange Commission (the "SEC") on July 31, 2000,
without exhibits; the Quarterly Reports on Form 10-Q for the quarters ended June
30, 2000 and September 30, 2000 as filed with the SEC on August 10, 2000 and
November 6, 2000 respectively; the definitive proxy statement for the 2000
annual meeting of the stockholders of the Company as filed with the SEC on
October 10, 2000; and the definitive proxy statement for the special meeting of
the stockholders of the Company
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with respect to the Pick Merger as filed with the SEC on November 16, 2000
("Merger Proxy Statement") (collectively "SEC Filings"). Such SEC Filings
complied at the time they were filed in all material respects with applicable
requirements of the Securities Act and the Exchange Act and the rules and
regulations thereunder. Since September 30, 2000 there has not been any material
change in the assets, liabilities, condition (financial or otherwise) or results
of operations of the Company except (i) 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 result of operations; (ii) the
consummation of the Pick Merger on December 1, 2000; and (iii) the exercise of a
warrant and related cancellation of a credit facility promissory note made by
the Company in the principal amount of $3 Million by Astoria Capital Partners,
L.P., in exchange for 645,400 shares of the Common Stock of the Company at an
exercise price of $5 per share, in connection with the Pick Merger.
(h) No Conflict. The execution and delivery of the Agreement and the
consummation of the transactions contemplated hereby with the Purchaser 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 Certificate 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 known to and applicable to the Company or its
properties or assets, subject to federal and state securities laws; 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 or the consummation of any other
transaction with the Purchaser contemplated hereby, except 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 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. To the knowledge of the Company, there is no action,
proceeding or investigation pending or 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 with Purchaser
contemplated hereby, or which might result, either individually or in the
aggregate, in any material adverse
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change in the assets, condition, affairs or prospects of the Company,
financially or otherwise, or any material change in the current equity ownership
of the Company. The Company (a) is not a party to any such 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 in such connection, and (c) does not intend to initiate any such
action, suit, proceeding or investigation.
(k) Adverse Effects. There is no fact within the knowledge of the
Company as of the Closing Date (other than publicly known facts relating to
political or economic matters of general applicability that may adversely affect
all comparable entities) that will have a material adverse effect on the
Company's business, condition, assets, liabilities, operations, financial
performance, net income or prospects or on the ability of the Company to comply
with or perform any covenant or obligation under this Agreement; subject however
to the risk factors and disclosures set forth in the SEC Filings, including but
not limited to the risk factors and disclosures relating to the Pick Merger as
set forth in the Merger Proxy Statement.
(l) 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.
(m) Brokers or Finders. The Company has not incurred and will not incur,
as a result of any action taken by the Company 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 with
Purchaser contemplated hereby. The Company agrees to fully indemnify and defend
and hold harmless Purchaser from and against all such liabilities incurred by
the Company in connection with the transactions with Purchaser contemplated by
this Agreement, and all costs and expenses (including reasonable fees of
counsel) of investigating and defending such claims.
(n) Effective Dates. The representations and warranties of the Company
set forth in this Agreement are true in all respects as of the date of this
Agreement and further shall be true in all material respects on and as of the
Closing as though made at that time.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants and covenants to the
Company with respect to its purchase of the Shares as follows:
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(a) Organization; Authority. The Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
California, is duly qualified to conduct business and is in good standing under
the laws of each jurisdiction in which the nature of its business or the
ownership or leasing of its properties requires such qualification. The
Purchaser has all requisite power and authority to own and operate its
properties and assets. The execution, delivery and performance by the Purchaser
of this Agreement and the Registration Rights Agreement and all other agreements
or instruments related thereto have been duly authorized by all necessary action
on the part of the Purchaser. The Purchaser has all right, power and authority
to enter into, execute and deliver this Agreement and the Registration Rights
Agreement and to consummate the transactions contemplated hereby, and this
Agreement and said Registration Rights Agreement, once executed by the Company
and the Purchaser, will constitute the legally binding valid obligations of the
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.
(b) Accredited Investor. The Purchaser is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D of the Securities Act of
1933 ("Securities Act") (excerpts of the definition of "accredited investor" are
attached hereto and made a part hereof as Exhibit D). The principal office of
Purchaser is located in the State indicated in the space provided in the
signature page hereof.
(c) Experience. The Purchaser, by reason of his or its business and
financial experience has such knowledge, sophistication and experience in
financial and business matters and in making investment decisions of this type
that the Purchaser is capable of (i) evaluating the merits and risks of an
investment in the Shares and making an informed investment decision, (ii)
protecting his or its own interest and (iii) bearing the economic risk of such
investment. If the Purchaser has retained a stockholder representative with
respect to the investment in the Shares, then the Purchaser shall, prior to or
at the Closing hereunder, (x) acknowledge in writing such representation and (y)
cause such representative to execute and deliver such statements or other
certificates to the Company containing such representations as are reasonably
requested by the Company.
(d) Investment Intent. The Purchaser is acquiring the Shares for
investment for his or its own account, not as a nominee or agent and not with
the view to, or any intention of, a resale or distribution thereof, in whole or
in part, or the grant of any participation therein. The Purchaser has not been
formed for the specific purpose of acquiring the Shares.
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(e) Certain Restrictions. The Purchaser understands that the Shares have
not been registered under the Securities Act or state securities laws and are
being issued by reason of a specific exemption from the registration provisions
of the Securities Act and applicable state securities laws that depend upon,
among other matters, the bona fide nature of the investment intent and the
accuracy of the Purchaser's representations as expressed herein. The Purchaser
further understands that the Company shall have no obligation to register the
Shares 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, except pursuant to the Registration Rights Agreement
to be entered into in connection with this Agreement. The Purchaser acknowledges
that the Shares must be held indefinitely unless subsequently registered under
the Securities Act or unless an exemption from such registration is available.
The Purchaser hereby acknowledges that because of the restrictions on transfer
or assignment of such Shares to be issued hereunder, the Purchaser may have to
bear the economic risk of the investment commitment in the Shares for an
indefinite period of time. The Purchaser further acknowledges and understands
that any investment in the Company is inherently speculative and subject to
material financial risks and that its or his entire investment in the Company
could be lost.
(f) Compliance with Securities Laws. The Purchaser 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 Shares. In
furtherance of the foregoing, and in addition to the restrictions contained
herein or in the Registration Rights Agreement, the Purchaser will not offer to
sell, exchange, transfer, pledge, or otherwise dispose of any of the Shares
unless at such time at least one of the following is satisfied: (i) a
registration statement under the Securities Act covering the Shares proposed to
be sold, transferred or otherwise disposed of, describing the manner and terms
of the proposed sale, transfer or other disposition, and containing a current
prospectus, shall have been filed with the SEC and shall then be effective under
the Securities Act; (ii) such transaction shall be permitted pursuant to the
provisions of Rule 144; (iii) counsel representing the Purchaser, satisfactory
to the Company, shall have advised the Company in a written opinion letter
reasonably satisfactory to the Company and its counsel, and upon which the
Company and its counsel may rely, that no registration under the Securities Act
would be required in connection with the proposed sale, transfer or other
disposition; or (iv) an authorized representative of the SEC shall have rendered
written advice to the Purchaser (sought by the Purchaser or counsel to the
Purchaser, with a copy thereof and of all other related communications delivered
to the Company) to the effect that the SEC would take no action, or that the
staff of the SEC would not recommend that the SEC take action, with respect to
the proposed sale, transfer or other disposition if consummated. The Purchaser
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares
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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.
(g) Restrictive Legend. All certificates representing the Shares
deliverable to the Purchaser hereunder and any certificates subsequently issued
with respect thereto or in substitution therefor, unless a sale, transfer or
other disposition is executed pursuant to one or more of the alternative
conditions set forth in Section 4(f) shall have occurred, or unless the
conditions of paragraph (k) of Rule 144 promulgated under the Securities Act
shall have been satisfied, shall bear a legend substantially as follows, in
addition to any legend the Company determines in its sole judgment is required
pursuant to any applicable legal requirement:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE
WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
OTHER CONDITIONS SPECIFIED IN THAT CERTAIN COMMON STOCK PURCHASE
AGREEMENT DATED AS OF DECEMBER 4, 2000 AND THAT CERTAIN REGISTRATION
RIGHTS AGREEMENT DATED AS OF DECEMBER 4, 2000, COPIES OF EACH OF WHICH
RAINING DATA CORPORATION WILL FURNISH, WITHOUT CHARGE, TO THE HOLDER OF
THIS CERTIFICATE UPON WRITTEN REQUEST THEREFOR"
The Company, at its discretion, may cause a stop transfer order to be placed
with its transfer agent(s) with respect to the certificates for the Shares but
not as to the certificates for any part of the Shares as to which said legend is
no longer appropriate when one or more of the alternatives set forth in Section
4(f) shall have been satisfied.
(h) Access to Information. The Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that the Purchaser reasonably
considers important in making the decision to purchase the Shares. The Purchaser
has received and has reviewed the SEC Filings of the Company. The 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. The 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 intended as and were not a thorough or exhaustive description or
disclosure of the subject matter thereof.
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(i) Absence of Claims. The Purchaser has no knowledge of any causes of
action or other claims that could have been or in the future might be asserted
by the Purchaser against the Company or any of its predecessors, successors,
affiliates, assigns, directors, employees, agents or representatives arising out
of facts or circumstances occurring at any time on or prior to the date hereof
and in any manner relating to any duty or obligation of the Company or such
other related person or entity to the Purchaser or any affiliate.
(j) 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 the
Purchaser and any third person or entity; and the Purchaser is not a party to
any outstanding agreement which any material obligation or agreement is
inconsistent with this Agreement.
(k) Full Disclosure. The representations and warranties of the 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.
(l) Brokers or Finders. The Purchaser has not incurred and will not
incur, as a result of any action taken by the 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 such liabilities incurred by Purchaser
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.
(m) Effective Dates. The representations and warranties of the Purchaser
in this Agreement are true in all respects as of the date of this Agreement and
further shall be true in all material respects on and as of the Closing as
though made at that time.
5. PURCHASER'S CONDITIONS TO CLOSING. The obligation of the Purchaser 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 the
Purchaser if not consented to in writing:
(a) Closing of Pick Merger. The closing of the merger transaction
between the Company, Raining Merger Sub, Inc. and PickAx, Inc. (the "Pick
Merger") pursuant to the terms and conditions of that certain Agreement and Plan
of Merger between said
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parties and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of August 23, 2000 as amended (attached as
an Exhibit to the Merger Proxy Statement provided to the Purchaser hereunder)
shall have occurred.
(b) Representations. 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.
(c) 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.
(d) Compliance Certificate. The Company will have delivered to the
Purchaser a Certificate dated as of the Closing signed by the President of the
Company certifying that the conditions set forth in Section 5(b) and (c) have
been fulfilled.
6. COMPANY'S CONDITIONS TO CLOSING.
The obligation of the Company 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 Purchaser in
Section 4 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 Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects.
(c) Compliance Certificate. If the Purchaser is not an individual, the
Purchaser will have delivered to the Company a Certificate dated as of the
Closing signed by the President or General Partner of the Purchaser certifying
that the conditions set forth in Section 6(a) and (b) have been fulfilled.
7. USE OF PROCEEDS.
The Company shall be entitled to use the proceeds from the sale of the
Shares for such corporate purposes as determined by the management of the
Company from time to time.
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8. REGISTRATION RIGHTS.
The Company will register all the Shares to be purchased by the
Purchaser resale under the Securities Act of 1933, as amended, and the
securities laws of such states as the parties may reasonably agree upon,
pursuant to the terms of that certain Registration Rights Agreement
substantially in the form attached hereto and made a part hereof as Exhibit E
(the "Registration Rights Agreement").
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 Francisco County 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 Francisco County, for all purposes of this Agreement or any
dispute or controversy hereunder.
(b) Successors and Assigns. The 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,
which may be withheld in its sole discretion. Except as limited by the
foregoing, the provisions hereof shall inure to the benefit of and be binding
upon the respective officers, directors, stockholders, affiliates, partners,
members, agents, representatives, successors and assigns of each of the parties
hereto.
(c) Entire Agreement. This Agreement and the Registration Rights
Agreement constitute 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) Waiver; Remedies. Any failure to enforce or delay in enforcing any
of rights or obligations for the benefit of a party shall not be treated as a
waiver thereof. Any waiver of any breach of this Agreement shall not operate as
a waiver of any subsequent breaches. All rights or remedies specified for a
party herein shall be
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cumulative and in addition to all other rights and remedies of the party
hereunder or under applicable law.
(e) Notices, Etc. All notices, requests, demands and other
communications required or permitted to be given hereunder ("Notices") shall be
in writing and shall be delivered prepaid (a) by personal delivery, (b) by a
nationally recognized overnight courier service, (c) by United States first
class registered or certified mail return receipt requested, or (d) by
telefacsimile, using equipment that provides written confirmation of receipt,
addressed to the other party at the address or facsimile number for such party
provided herein; and the date of notice shall be the earlier of (i) actual
receipt of notice by any permitted means, or (ii) three (3) business days
following dispatch by overnight delivery service or the United States Mail;
provided however any notice delivered by telefacsimile shall be effective only
if the facsimile is legible and if a confirming copy is sent by any other
permitted means hereunder within ten (10) days after transmission. All Notices
shall be addressed: (x) if to the Purchaser, at the Purchaser's address or
telefacsimile number set forth on the signature page hereof, or at such other
address or number as the 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 the Purchaser for such purpose, with a copy
to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
(f) Counterparts. This Agreement may be executed in one 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.
(g) 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.
(h) 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. As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation. Except as
otherwise indicated, all references in this Agreement to
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"Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this
Agreement and Exhibits and Schedules to this Agreement.
(i) Attorneys' 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.
(j) Survival of Representations and Warranties. The representations and
warranties and covenants 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 shall be
deemed made as of the Effective Date and as of the Closing Date.
(k) Taxes. The Purchaser shall be responsible for all sales, use and
transfer taxes, including but not limited to any value added, stock transfer,
gross receipts, stamp duty and real, personal or intangible property transfer
taxes, due by reason of the consummation of the issuance, sale or purchase of
the Shares, including but not limited to any interest or penalties in respect
thereof.
(l) Expenses. Each of the parties shall bear all of its own costs and
expenses incurred in connection with the negotiation of this Agreement and the
sale and purchase of the Shares, including legal and accounting fees incurred in
connection therewith.
IN WITNESS WHEREOF, the parties hereto have entered into and executed
this Common Stock Purchase Agreement as of the date first above written.
RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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PURCHASER:
ASTORIA CAPITAL PARTNERS, L.P.
By: Astoria Capital Management, Inc.,
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇, President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
State of Principal Office: Oregon
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RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
AS ON FILE WITH THE COMPANY
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RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT B
SCHEDULE OF PURCHASERS
NAME SHARES PURCHASE PRICE
---- ------ --------------
Astoria Capital Partners, L.P. 1,005,548 $ 4,147,886
Astoria Capital Partners, L.P. 969,697 $ 4,000,000
▇▇▇▇▇▇ van Roijen 12,121 $ 50,000
▇▇▇▇▇ ▇▇▇▇▇ 10,000 $ 41,250
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RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT C
CERTIFICATE OF DESIGNATIONS OF SERIES A
CONVERTIBLE PREFERRED STOCK
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RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT D
DEFINITION OF ACCREDITED INVESTOR
(as provided in Rule 501 under the Securities Act of 1933)
(a) Accredited Investor. "Accredited Investor" shall mean any person who
comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at the
time of the sale of the securities to that person:
. . .
(3) Any organization described in Section 501 (c) (3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the issuer of the
securities being offered or sold, or any director, executive officer, or
general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth with
that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
. . .
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RAINING DATA CORPORATION
fka OMNIS TECHNOLOGY CORPORATION
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
[OMITTED]
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