EXHIBIT 10.36
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AMENDMENT TO EXCHANGE AGREEMENT, SECURITIES PURCHASE
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AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
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THIS AMENDMENT to the Exchange Agreement, Securities Purchase
Agreement and the Registration Rights Agreement is made as of the 28th day of
June, 2001 by and between ON Technology Corporation, a Delaware corporation (the
"Company"), and Castle Creek Technology Partners LLC ("CC").
WHEREAS, the Company and CC are parties to that certain Exchange
Agreement between the Company and CC dated December 18, 2000 (the "Exchange
Agreement"); and
WHEREAS, the Company and CC are parties to that certain Securities
Purchase Agreement between the Company and CC dated December 29, 1999 (the
"Securities Purchase Agreement"); and
WHEREAS, the Company and CC are parties to that certain Registration
Rights Agreement between the Company and CC dated December 29, 1999, as amended
by the Exchange Agreement (the "Registration Rights Agreement").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Exchange Agreement, the Securities Purchase Agreement and the Registration
Rights Agreement as follows:
1. Section 6(b) of the Exchange Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) The Company has caused the Registration Statement filed
pursuant to the preceding Section 6(a) (the "Registration
Statement") to become effective, and covenants and agrees to
use best efforts to take all actions reasonably required to
maintain the effectiveness of the Registration Statement for a
period of two years after its effective date."
2. Section 2.3 of the Registration Rights Agreement is hereby
deleted in its entirety and replaced with the following:
"The Company has caused the Registration Statement filed
pursuant to Section 2.1(a) to become effective, and covenants
and agrees to use best efforts to take all actions reasonably
required to maintain the effectiveness of such Registration
Statement for a period of two years after its effectiveness."
3. The first sentence of Section 3.1 of the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the following:
"The Company shall prepare and promptly file with the SEC each
Registration Statement required by Section 2.1, and cause each
such Registration Statement relating to the Registrable
Securities to become effective as soon as practicable after
such filing, and use best efforts to take all actions
reasonably necessary to keep the Registration Statement
effective pursuant to Rule 415 and available for use at all
times until such date as is the earlier of (i) the date on
which all of the Registrable Securities have been sold ( and no
further Registrable Securities may be issued in the future) and
(ii) the date on which all of the Registrable Securities (in
the reasonable opinion of counsel to the Initial Purchasers)
may be immediately sold to the public without registration and
without restriction as to the number of Registrable Securities
to be sold, whether pursuant to Rule 144 or otherwise (the
"Registration Period")."
4. The first sentence of Section 3.2 of the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the following:
"The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and
supplements to a Registration Statement and the prospectus used
in connection with each Registration Statement as is consistent
with the Company's obligation to use best efforts to take all
actions reasonably required to keep such Registration Statement
effective and available for use at all times during the
Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the
disposition of all Registrable Securities of the Company
covered by such Registration Statement until the termination of
the Registration Period or, if earlier, such time as all of
such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or
sellers thereof as set forth in such Registration Statement."
5. The last sentence of Section 3.2 of the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the following:
"The Company shall use best efforts to take all actions
reasonably required to cause such amendment and/or new
Registration Statement to become effective as soon as
practicable following the filing thereof."
6. The first sentence of Section 3.4 of the Registration Rights
Agreement is hereby deleted in its entirety and replaced with the following:
"The Company shall (a) use best efforts to take all actions
reasonably required to register and qualify the Registrable
Securities covered by each Registration Statement under
securities laws of such jurisdictions in the United States as
each Purchaser who holds (or has the right to hold) Registrable
Securities being offered reasonably requests, (b) prepare and
file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such
registrations and qualifications are consistent with the
Company's obligation to use best efforts to
take all actions reasonably required to maintain the
effectiveness and availability for use thereof during the
applicable Registration Period, (c) use best efforts to take
such other actions as may be reasonably required to maintain
such registrations and qualifications in effect at all times
during the applicable Registration Period, and (d) use best
efforts to take all other actions reasonably required to
qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to
(i) qualify to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3.4,
(ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of
process in any such jurisdiction, (iv) provide any undertakings
that cause the Company material expense or burden, or (v) make
any change in its charter or by-laws, which in each case the
board of directors of the Company determines to be contrary to
the best interests of the Company and its stockholders."
7. The Section 3.7 of the Registration Rights Agreement is hereby
deleted in its entirety and replaced with the following:
"The Company shall use its best efforts to take all actions
reasonably required to prevent the issuance of any stop order
or other suspension of effectiveness of a Registration
Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest practicable time and
the Company shall immediately notify by facsimile each
Purchaser (at the facsimile number for each Purchaser set forth
on the signature page hereto) who holds Registrable Securities
(or, in the event of any underwritten offering, the managing
underwriters) of the issuance of such order and the resolution
thereof."
8. The second sentence of Section 4.9 of the Securities Purchase
Agreement is hereby deleted in its entirety.
9. Except as expressly set forth in this Amendment, each of the
Exchange Agreement, the Securities Purchase Agreement and the Registration
Rights Agreement shall remain in full force and effect and shall not be altered,
amended or modified. In the event of a conflict between the terms of this
Amendment and any of the terms of the Exchange Agreement, Registration Rights
Agreement, the Exchange Warrant or the Securities Purchase Agreement, the terms
of this Amendment shall prevail.
10. Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to such terms in the Exchange Agreement.
11. This Amendment may be executed in counterparts, all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
on the date first above written.
ON TECHNOLOGY CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
CASTLE CREEK TECHNOLOGY
PARTNERS LLC
By:_________________________________
Name:_______________________________
Title:______________________________
