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Title: |
Purchase Agreement |
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Date: |
2001 |
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Preview shows 7KB of 71KB total |
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Price: |
$40 |
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ID: |
#1273944 |
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PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT ("Agreement") is made as of the 24th day of
October, 2001 by and among ON Technology Corporation, a Delaware corporation
(the "Company"), and the Investors set forth on the signature pages affixed
hereto (each an "Investor" and collectively the "Investors").
RECITALS
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended; and
B. The Investors wish to purchase from the Company, and the Company
wishes to sell and issue to the Investors, upon the terms and conditions stated
in this Agreement, an aggregate of 6,024,096 shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock"); and
C. Contemporaneous with the sale of the Common Stock, the parties
hereto will execute and deliver a Registration Rights Agreement, in the form
attached hereto as Exhibit A (the "Registration Rights Agreement"), pursuant to
which the Company will agree to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder, and applicable state securities laws.
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in
this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings here set forth:
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly Controls, is controlled by, or is under common control
with, such Person.
"Agreement" has the meaning ascribed thereto in the preamble hereof.
"Agreements" means this Agreement and the Registration Rights
Agreement.
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in New York City are open for the general transaction of business.
"Closing" has the meaning ascribed thereto in Section 3 hereof.
"Closing Date" has the meaning ascribed thereto in Section 3 hereof.
<PAGE>
"Common Stock" has the meaning ascribed thereto in the recitals hereof.
"Company" has the meaning ascribed thereto in the preamble hereof.
"Company's Knowledge" means the actual knowledge of the officers of the
Company, after due inquiry.
"Control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Disclosure Schedules" has the meaning ascribed thereto in Section 4
hereof.
"Environmental Laws" has the meaning ascribed thereto in Section 4.16
hereof.
"Indemnified Person" has the meaning ascribed thereto in Section 8.3
hereof.
"Infringe" has the meaning ascribed thereto in Section 4.15(e) hereof.
"Intellectual Property" means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii)
copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; (v) trade secrets, confidential information
and know-how (including but not limited to ideas, formulae, compositions,
manufacturing and production processes and techniques, research and development
information, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information); and (vi) proprietary
computer software (including but not limited to data, data bases and
documentation).
"Investment Representations" has the meaning ascribed thereto in
Section 6.2(a) hereof.
"Investor(s)" has the meaning ascribed thereto in the preamble hereof.
"Investor Director" has the meaning ascribed thereto in Section 7.2
hereof.
"License Agreement" has the meaning ascribed thereto in Section 4.15(b)
hereof.
"Losses" has the meaning ascribed thereto in Section 8.2 hereof.
"Material Adverse Effect" means a material adverse effect on the
assets, liabilities, results of operations, condition (financial or otherwise),
business, or prospects of the Company and its subsidiaries taken as a whole.
-2-
<PAGE>
"Nasdaq" means the NASDAQ Stock Market, Inc. National Market System.
"Person" means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
"Purchase Price" means Five Million Dollars ($5,000,000.00).
"Registration Rights Agreement" has the meaning ascribed thereto in the
recitals hereof.
"Regulation D" has the meaning ascribed thereto in the recitals hereof.
"Required Investors" has the meaning ascribed thereto in Section 6.1
hereof.
"SEC" has the meaning ascribed thereto in the recitals hereof.
"SEC Filings" has the meaning set forth in Section 4.6 hereof.
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