EXHIBIT 10.35
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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 Xxxxxxxx Capital Management, Inc. ("Xxxxxxxx").
WHEREAS, the Company and Xxxxxxxx are parties to that certain
Exchange Agreement between the Company and Xxxxxxxx dated December 18, 2000 (the
"Exchange Agreement"); and
WHEREAS, the Company and Xxxxxxxx are parties to that certain
Securities Purchase Agreement between the Company and Xxxxxxxx dated December
29, 1999 (the "Securities Purchase Agreement"); and
WHEREAS, the Company and Xxxxxxxx are parties to that certain
Registration Rights Agreement between the Company and Xxxxxxxx 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:_____________________________
XXXXXXXX CAPITAL MANAGEMENT, INC.
By:________________________________
Name:______________________________
Title:_____________________________
