EXHIBIT 4.1
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ON TECHNOLOGY CORPORATION
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of the 30th day of January, 1997 by and among ON TECHNOLOGY CORPORATION,
a Delaware corporation (the "Company"), and each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(individually, a "Stockholder" and together, the "Stockholders"), who are
holders of Common Stock of the Company, $.01 par value (the "Common Stock").
W I T N E S S E T H :
WHEREAS, the Company, Purview Technologies, Inc. ("Purview") and the
Stockholders have entered into a Stock Purchase Agreement dated January 24, 1997
pursuant to which the Company has agreed to purchase, and the Stockholders have
agreed to sell to the Company, all of the outstanding stock of Purview in
exchange (inter alia) for 155,251 shares of Common Stock of the Company (the
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"Purchase"); and
WHEREAS, in order to induce the Stockholders to sell their shares in
Purview, the Company has agreed to grant to the Stockholders the registration
rights set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall be used in this Agreement with
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the following respective meanings:
"Affiliate" shall mean (i) any Person directly or indirectly
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controlling controlled by or under common control with another Person;
(ii) any Person owning or controlling ten (10%) percent or more of the
outstanding voting securities of such other Person; (iii) any officer,
director or partner of such Person; (iv) if such Person is an officer,
director or partner, any such company for which such Person acts in such
capacity; and (v) any Person's spouse, parents, siblings and descendants
(whether natural or
adopted) and any trust solely for the benefit of such Person and/or such
Person's spouse, parents, siblings and/or descendants.
"Commission" shall mean the Securities and Exchange Commission.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
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successor Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Offering Shares" shall mean shares of Common Stock to be sold by any
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party pursuant to demand registration rights granted to such party by the
Company, including without limitation such demand registration rights
granted pursuant to that certain Second Restated Registration Rights
Agreement by and among the Company and certain of the Company's Stockholders
dated June 1, 1994, as amended.
"Person" shall mean any natural person, partnership, corporation or other
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legal entity.
"Registrable Stock" shall mean (a) all Common Stock issued and distributed
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to the Stockholders in connection with the Purchase, and (b) any other shares of
Common Stock issued in respect of such shares by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger or consolidation or reorganization; provided, however, that shares of
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Common Stock shall only be treated as Registrable Stock if and so long as they
have not been (i) sold to or through a broker or dealer or underwriter in a U.S.
public distribution or a U.S. public securities transaction, or (ii) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions
and restrictive legends with respect to such Common Stock are removed upon the
consummation of such sale and the seller and purchaser of such Common Stock
receive an opinion of counsel for the Company, which shall be in form and
content reasonably satisfactory to the seller and buyer and their respective
counsel, to the effect that such Common Stock in the hands of the purchaser is
freely transferable without restriction
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or registration under the Securities Act in any public or private transaction.
"Registration Statement" shall mean a registration statement filed by the
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Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form ▇-▇, ▇▇▇▇ ▇-▇, or successor
forms, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation).
"Securities Act" shall mean the Securities Act of 1933, or any successor
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Federal statute, and the rules and regulations of the Commission (or of any
other Federal agency then administering the Securities Act) thereunder, all as
the same shall be in effect at the time.
2. Registration on Form S-3.
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(a) At any time after the last day of the sixth month after the date
hereof and through the second annual anniversary of the date hereof, the
Stockholders holding 70% or more of the Registrable Stock may jointly request
the Company to register under the Securities Act on Form S-3 or any successor
form thereto all, but not less than all, of the shares of Registrable Stock held
by them for sale in the manner specified in such notice; provided that the
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Company is a registrant then entitled to use Form S-3 or any successor form
thereto to register such shares. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 2: (i) in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction; (ii) during the period starting with the date 60 days prior
to the Company's estimated date of filing of, and ending on the date six months
immediately following the effective date of, any registration statement
pertaining to the securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan); provided that the Company is actively employing in good faith all
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reasonable efforts to cause such registration statement to become effective; and
(iii) if the Company shall furnish to the Stockholder a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company or its
shareholders for a
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registration statement to be filed in the near future, in which event the
Company's obligation to use all reasonable efforts to register, qualify or
comply under this Section 2 shall be deferred for a period not to exceed 90 days
from the date of receipt of written request from the Stockholders; provided that
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the Company may not utilize this right more than once in any 12-month period.
The Stockholders holding Registrable Stock may only make one such request
pursuant to this Section 2.
(b) If the Stockholders request that the Registrable Stock be sold in an
underwritten offering, then the Company, in consultation with the Stockholders,
shall designate the managing underwriter of such offering. The Company shall be
obligated to register Registrable Stock pursuant to this Section 2 on a single
occasion only; provided, however, that such obligation shall be deemed satisfied
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only when a Registration Statement covering all shares of Registrable Stock
specified in the notice received pursuant to Section 2(a) for sale in accordance
with the method of disposition specified by the Stockholders shall have become
effective.
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 2, for sale in accordance with the method of
disposition specified by the Stockholders, shares of Common Stock to be sold by
the Company for its own account, except as and to the extent that, in the
opinion of the managing underwriter, such inclusion would adversely affect the
marketing of the Registrable Stock to be sold.
3. Incidental Registration. Each time the Company shall determine to file
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a Registration Statement in connection with the proposed offer and sale for cash
of any of its securities by it or any of its security holders, the Company will
give written notice of its determination to the Stockholders at least 15 days
prior to the filing of such Registration Statement. Upon the written request of
any of the Stockholders given within 30 days after the giving of any such notice
by the Company, the Company will use its best efforts to cause all shares of
Registrable Stock which such Stockholder(s) have requested to register to be
included in such Registration Statement, all to the extent required to permit
the sale or other disposition by the prospective seller of the Registrable Stock
to be so registered. If the Registration Statement is to cover an underwritten
distribution, the Company shall use its best efforts to cause the Registrable
Stock requested for inclusion pursuant to this Section 3 to be included in the
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underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. If, in the good faith judgment of the managing
underwriter of such public offering, the inclusion of all of the Registrable
Stock requested for inclusion pursuant to this Section 3 and other securities
would interfere with the successful marketing of a smaller number of shares to
be offered, then the number of shares of Registrable Stock and other securities
to be included in the offering, except for shares to be issued by the Company in
an offering initiated by the Company or Offering Shares to be sold by any other
party, shall be reduced to the required level with the participation in such
offering to be pro rata among the holders thereof requesting such registration,
based upon the number of shares of Registrable Stock and other securities owned
by such holders.
4. Limitations on Registration Rights. Notwithstanding anything to the
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contrary in Sections 2 and 3 hereto, in the event that holders of "Registrable
Stock," as such term is defined in that certain Second Restated Registration
Rights Agreement among the Company and certain of the Company's shareholders
dated June 1, 1994, as amended ("Other Registrable Stock"), elect to participate
in any registration contemplated by Sections 2 or 3 hereto of this Agreement,
then the number of shares of Registrable Stock shall be reduced if and to the
extent necessary to permit such shareholders to include in such registration
that number of shares of Other Registrable Stock equal to one-third of the total
number of Offering Shares.
5. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 2 or 3 hereof to effect the registration of shares of
Registrable Stock under the Securities Act, the Company will, at its expense, as
expeditiously as possible:
(a) In accordance with the Securities Act and the rules and regulations
of the Commission, prepare and file with the Commission a Registration Statement
with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective until the earlier of (i)
180 days, in the event of a registration on Form S-3, or (ii) the date on which
all of the securities covered by such Registration Statement have been sold, and
prepare and file with the Commission such amendments to such Registration
Statement and supplements to the prospectus contained therein as may be
necessary to keep such Registration
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Statement effective and such Registration Statement and prospectus accurate and
complete;
(b) If the offering is to be underwritten in whole or in part, enter into a
written underwriting agreement in form and substance reasonably satisfactory to
the managing underwriter of the public offering and the Stockholders;
(c) Furnish to the Stockholders and to the underwriters such reasonable
number of copies of the Registration Statement, preliminary prospectus, final
prospectus and such other documents as such underwriters and the Stockholders
may reasonably request in order to facilitate the public offering of such
securities;
(d) Use its best efforts to register or qualify the securities covered by
such Registration Statement under such state securities or blue sky laws of such
jurisdictions as the Stockholders and the underwriters may reasonably request,
except that the Company shall not for any purpose be required to execute a
general consent to service of process, to qualify to do business as a foreign
corporation in any jurisdiction where it is not so qualified, or to subject
itself to taxation in such jurisdiction;
(e) Notify the Stockholders, promptly after it shall receive notice
thereof, of the date and time when such Registration Statement and each post-
effective amendment thereto has become effective, or a supplement to any
prospectus forming a part of such Registration Statement has been filed;
(f) Notify the Stockholders, promptly of any request by the Commission or
any state securities commission or agency for the amending or supplementing of
such Registration Statement or prospectus, or for additional information;
(g) Prepare and file with the Commission, promptly upon the request of the
Stockholders, any amendments or supplements to such Registration Statement or
prospectus which, in the opinion of counsel representing the Company in such
registration (and which counsel is reasonably acceptable to the Stockholders),
is required under the Securities Act or the rules and regulations thereunder in
connection with the distribution of the Registrable Stock by the Stockholders;
(h) notify each seller of Registrable Stock under such Registration
Statement (at any time when a prospectus relating
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thereto is required to be delivered under the Securities Act), of the happening
of any event by which the Company has knowledge as a result of which the
prospectus contained in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly prepare and
furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Registrable Stock, such prospectus shall not include an untrue statement or
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(i) During the time period during which the Company is required, pursuant
to Section 5(a), to cause a Registration Statement to be effective, in case the
Stockholders or any underwriter for the Stockholders is required to deliver a
prospectus at a time when the prospectus then in circulation is not in
compliance with the Securities Act or the rules and regulations of the
Commission, prepare promptly upon request such amendments or supplements to such
Registration Statement and such prospectus as may be necessary in order for such
prospectus to comply with the requirements of the Securities Act and such rules
and regulations;
(j) Advise the Stockholders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission or
any state securities commission or agency suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued;
(k) Not file any amendment or supplement to such Registration Statement or
prospectus to which counsel for the Stockholders has reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
three business days prior to the filing thereof (which advance furnishing of
copies the Company hereby agrees to);
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(l) At the request of the Stockholders (i) furnish to the Stockholders
on the effective date of the Registration Statement or, if such registration
includes an underwritten public offering, at the closing provided for in the
underwriting agreement, an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the Stockholders, covering such matters with
respect to the registration statement, the prospectus and each amendment or
supplement thereto, proceedings under state and Federal securities laws, other
matters relating to the Company, the securities being registered and the offer
and sale of such securities as are customarily the subject of opinions of
issuer's counsel provided to underwriters in underwritten public offerings, and
(ii) use its best effort to furnish to the Stockholders letters dated each such
effective date and such closing date, from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and to the
Stockholders, stating that they are independent certified public accountants
within the meaning of the Securities Act and dealing with such matters as the
underwriters may request, or, if the offering is not underwritten, that in the
opinion of such accountants the financial statements and other financial data of
the Company included in the Registration Statement or the prospectus or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act, and additionally
covering such other financial matters, including information as to the period
ending not more than five business days prior to the date of such letter with
respect to the Registration Statement and prospectus, as the Stockholder may
reasonably request; and
(m) Use its best efforts to ensure the obtaining of all necessary
approvals from the NASD.
6. Expenses.
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(a) With respect to each registration effected pursuant to Sections 2
or 3 hereof, all fees, costs and expenses of and incidental to such registration
and the public offering in connection therewith shall be borne by the Company;
provided, however, that the Stockholders shall bear their pro rata share of the
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underwriting discounts and selling commissions.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without
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limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and disbursements
of counsel for the underwriter or underwriters of such securities (if the
Company and/or selling security holders are otherwise required to bear such fees
and disbursements), all legal fees and disbursements and other expenses of
complying with state securities laws in those states in which the securities to
be offered are to be registered or qualified, the reasonable fees and
disbursements of counsel for the Stockholders, and the premiums and other costs
of policies of insurance insuring the Company against liability arising out of
such public offering.
7. Indemnification and Contribution.
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(a) To the fullest extent permitted by law, the Company will indemnify
and hold harmless each of the Stockholders, whether or not their shares have
been sold in the offering, and any underwriter (as defined in the Securities
Act) for the Stockholders, and any person who controls the Stockholders or such
underwriter within the meaning of the Securities Act, from and against, and will
reimburse the Stockholders and each such underwriter and controlling person with
respect to, any and all claims, actions, demands, losses, damages, liabilities,
costs and expenses to which the Stockholders or any such underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of any violation by the Company of any rule
or regulation under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with such registration;
provided, however, that the Company will not be liable in any such case to the
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extent that any such claim, action, demand, loss, damage, liability, cost or
expense is caused by an untrue statement or alleged untrue statement or omission
or alleged omission so made in reliance upon information furnished by any of the
Stockholders, such underwriter or such controlling person for use in the
preparation thereof.
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(b) Each of the Stockholders will severally indemnify and hold
harmless the Company from and against, and will reimburse the Company with
respect to, any and all losses, damages, liabilities, costs or expenses to which
the Company may become subject under the Securities Act or otherwise, insofar as
such losses, damages, liabilities, costs or expenses are caused by any untrue or
alleged untrue statement of any material fact contained therein or any amendment
or supplement thereto, or are caused by the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they are made,
not misleading, in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was so made in reliance
upon information furnished to the Company by such Stockholder specifically for
use in the preparation thereof.
(c) Promptly after receipt by a party to be indemnified pursuant to
the provisions of paragraph (a) or (b) of this Section 7 (an "indemnified
party") of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of paragraph (a) or (b), notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to an indemnified party otherwise than
under this Section 7 and shall not relieve the indemnifying party from liability
under this Section 7, unless such indemnifying party is prejudiced by such
omission. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of such paragraph
(a) and (b) for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall be liable to an indemnified
party for any settlement of any action or claim made without the consent of the
indemnifying party; provided that no indemnifying party may unreasonably
withhold or
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delay its consent to any such settlement. No indemnifying party will consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any of the
Stockholders or any controlling person of any of the Stockholders makes a claim
for indemnification pursuant to this Section 7, but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case, notwithstanding the
fact that this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any of the
Stockholders or any such controlling person in circumstances for which
indemnification is provided under this Section 7; then, in each such case, the
Company and the Stockholders will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that each Stockholder is responsible for the
portion represented by the percentage that the public offering price of his
Registrable Stock offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration Statement, and the
Company is responsible for the remaining portion; provided, however, that, in
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any such case, no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
8. Reporting Requirements Under Securities Exchange Act of 1934. The
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Company shall keep effective its registration under Section 12 of the Exchange
Act and shall timely file such information, documents and reports as the
Commission may require or prescribe under Section 13 of the Exchange Act. The
Company shall (whether or not it shall then be required to do so) timely file
such information, documents and reports as the Commission may require or
prescribe under Section 13 or 15(d) (whichever is applicable) of the Exchange
Act. The Company shall forthwith upon request furnish to the Stockholders: (i)
a written statement by the Company that it has complied with the reporting
requirements of Section 13 or 15(d) of the Exchange Act, (ii) a copy of the most
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recent annual or quarterly report of the Company, and (iii) such other reports
and documents filed by the Company with the Commission as the Stockholders may
reasonably request in availing themselves of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 8 are (a) to enable the Stockholders to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should any of the Stockholders ever wish to dispose of any of the
securities of the Company acquired by them without registration under the
Securities Act in reliance upon Rule 144 (or any other similar or successor
exemptive provision), and (b) to qualify the Company for the use of Registration
Statements on Form S-3. In addition, the Company shall take such other measures
and file such other information, documents and reports, as shall hereafter be
required by the Commission as a condition to the availability of Rule 144 under
the Securities Act (or any similar or successor exemptive provision hereafter in
effect) and the use of Form S-3. The Company also covenants to use its best
efforts, to the extent that it is reasonably within its power to do so, to
quality for the use of Form S-3. The Company agrees to use its best efforts to
facilitate and expedite transfers of Registrable Stock pursuant to Rule 144
under the Securities Act (or any similar or successor exemptive provision
hereafter in effect), which efforts shall include timely notice to its transfer
agent to expedite such transfers of Registrable Stock.
9. Stockholder Information. The Company may require each Stockholder to
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furnish the Company in a timely manner such information with respect to himself
and the distribution of such Registrable Stock as the Company may from time to
time reasonably request in writing and as shall be required by law or by the
Commission in connection therewith.
10. Specific Enforcement. All of the parties hereto acknowledge that the
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parties will be irreparably damaged in the event that this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants or conditions of this Agreement by any of the parties hereto, the
other parties shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, or a
decree for specific performance, in accordance with the provisions hereof.
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11. Notices. Any notices or other communications required or permitted
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hereunder shall be sufficiently given if delivered personally or sent by
facsimile, overnight courier, registered or certified mail, postage prepaid,
addressed as follows or to such other address of which the parties may have
given notice:
If to the Company: ON Technology Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Stockholders: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o Purview Technologies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (412)
Fax: (412)
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (305)
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date delivered, if delivered personally or by
facsimile; (b) one business day after being sent, if sent by overnight courier;
or (c) three business days after being sent, if sent by registered or certified
mail.
12. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware.
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13. Waivers; Amendments. No waiver of any right hereunder by any party
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operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and all of the Stockholders.
14. Miscellaneous. All covenants and agreements in this Agreement by or
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on behalf of any of the parties hereto will bind and inure to the benefit of the
respective transferees, heirs, executors, administrators, legal representatives,
successors and assigns of the parties hereto whether so expressed or not. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement represents the complete agreement of the parties
with respect to the transactions contemplated hereby and supersedes all prior
agreements and understandings. Headings in this Agreement are included for
reference only and shall have no effect upon the construction or interpretation
of any part of this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a duly authorized signatory and the Stockholders have duly executed this
Agreement, each as of the date first above recited.
ON TECHNOLOGY CORPORATION
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President
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