Exhibit 10.25
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") dated as of
_____________, 2000 is entered into by and between Switchboard Incorporated, a
Delaware corporation (the "Company"), and Banyan Systems Incorporated, a
Massachusetts corporation ("Banyan").
Recitals
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WHEREAS, Banyan holds 7,000,000 shares of the Company's Common Stock; and
WHEREAS, the Company and Banyan desire to provide for certain arrangements
with respect to the possible future registration of such shares under the
Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any
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other federal agency of the United States at the time administering the
Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of
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the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any successor federal statute, and the rules and regulations of the
Commission issued the Exchange Act, as they each may, from time to time, be in
effect.
"Initial Public Offering" means the initial underwritten public
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offering of shares of Common Stock pursuant to an effective Registration
Statement.
"Other Holders" shall have the meaning set forth in Section 2.1(c).
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"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"Registration Statement" means 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 S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 2.4.
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"Registrable Shares" means (i) the Shares and (ii) any other shares of
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Common Stock issued in respect of such Shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
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however, that shares of Common Stock that are Registrable Shares shall cease to
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be Registrable Shares upon (i) any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act, (ii) any eligibility for sale pursuant to
Rule 144(k) under the Securities Act or (iii) any sale in any manner to a person
or entity which, by virtue of Section 3 of this Agreement, is not entitled to
the rights provided by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any Stockholder owning Registrable Shares
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included in a Registration Statement.
"Shares" means the 7,000,000 shares of Common Stock issued to Banyan
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during 1996.
"Stockholders" means Banyan and any persons or entities to whom the
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rights granted under this Agreement are transferred by Banyan, its successors or
assigns pursuant to Section 3 hereof.
2. Registration Rights
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2.1 Required Registrations.
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(a) At any time after the first anniversary of the closing of the
Initial Public Offering, Banyan may request, in writing, that the Company effect
the registration on Form S-3 (or any successor form) of Registrable Shares owned
by Banyan having an aggregate value of at least $10,000,000 (based on the then
current market price or fair value). For avoidance of doubt, the parties agree
that the Company shall not be required to file a registration statement on Form
S-1 or Form S-2 (or any successor form which does not allow the incorporation by
reference of subsequently filed Exchange Act reports).
(b) Upon receipt of any request for registration pursuant to this
Section 2, the Company shall promptly give written notice of such proposed
registration to all other Stockholders. Such Stockholders shall have the right,
by giving written notice to the Company within 10 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Stockholders may request in such notice of
election, subject in the case of an underwritten offering to the approval of the
managing underwriter as provided in Section 2.1(c) below. Thereupon, the
Company shall, as expeditiously as possible, use its reasonable best efforts to
effect the registration on an appropriate registration form of all Registrable
Shares which the Company has been requested to so register.
(c) If Banyan intends to distribute the Registrable Shares covered
by its request by means of an underwriting, it shall so advise the Company as a
part of its request made pursuant to Section 2.1(a), and the Company shall
include such information in its written notice referred to in Section 2.1(b).
The right of any other Stockholder to include its Registrable Shares in such
registration pursuant to Section 2.1(a) shall be conditioned upon such other
Stockholder's participation in such underwriting on the terms set forth herein.
If other holders of securities of the Company who are entitled, by contract with
the Company, to have securities included in such a registration (the "Other
Holders") request such inclusion, the Company may include the securities of such
Other Holders in such registration and underwriting on the terms set forth
herein. The Company shall (together with all Stockholders and Other Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form (including, without limitation,
customary indemnification and contribution provisions on the part of the
Company) with the managing underwriter. Notwithstanding any other provision of
this Section 2.1(c), if the managing underwriter advises the Company that the
inclusion of all shares requested to be registered would adversely affect the
offering, and if a limitation of the number of shares is required, the number of
shares that may be included in such registration and underwriting shall, except
as otherwise provided in any contract to which the Company is a party, be
allocated among all holders of Registrable Shares and Other Holders requesting
registration in proportion, as nearly as practicable, to the
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respective number of shares held by them at the time of the request for
registration made pursuant to Section 2.1(a). For the avoidance of doubt, the
parties agree that no Stockholder shall be entitled to include any shares in a
registration requested pursuant to its rights under this Section 2.1 unless each
Other Holder under the following listed agreements (which term includes Banyan
to the extent so provided in one of the following listed agreements) is entitled
to include in such registration all of the shares of Common Stock which it
desires to include and which are registrable shares under one of the following
listed agreements: (1) Amended and Restated Registration Rights Agreement, dated
as of February 20, 1998, as amended, among the Company, America Online, Inc.,
Digital City Inc. and Banyan; (2) Registration Rights Agreement dated as of
December 31, 1997, between the Company and Continuum Software, Inc.; (3) Amended
and Restated Registration Rights Agreement dated as of May 3, 1999 between the
Company and Banyan; and (4) Registration Rights Agreement dated as of June 30,
1999 between the Company and CBS Corporation. If any holder of Registrable
Shares or Other Holder who has requested inclusion in such registration as
provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, and the securities
so withdrawn shall also be withdrawn from registration. If the managing
underwriter has not limited the number of Registrable Shares or other securities
to be underwritten, the Company may include securities for its own account in
such registration if the managing underwriter so agrees and if the number of
Registrable Shares and other securities which would otherwise have been included
in such registration and underwriting will not thereby be limited.
(d) The Company shall have the right to select the managing
underwriter(s) for any underwritten offering requested pursuant to Section
2.1(a), subject to the approval of Banyan, which approval will not be
unreasonably withheld.
(e) The Company shall not be required to effect more than one
registration pursuant to Section 2.1(a) per year. In addition, the Company
shall not be required to effect any registration within six months after the
effective date of any other Registration Statement of the Company. For purposes
of this Section 2.1(e), a Registration Statement shall not be counted until such
time as such Registration Statement has been declared effective by the
Commission (unless Banyan withdraws its request for such registration (other
than as a result of material information concerning the business or financial
condition of the Company which is first made known to Banyan after the date on
which such registration was requested) and elect not to pay the Registration
Expenses therefor pursuant to Section 2.4). In the event Banyan is, as a result
of the cut-back provisions in Section 2.1(c), prohibited from selling at least
50% of the Registrable Shares with respect to which it requested registration,
then such registration shall not count as a registration under this Section
2.1(e).
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(f) If at the time of any request to register Registrable Shares by
Banyan pursuant to this Section 2.1, the Company is engaged or has plans to
engage in a registered public offering or is engaged in any other activity
which, in the good faith determination of the Company's Board of Directors,
would be adversely affected by the requested registration, then the Company,
upon furnishing a certificate signed by an executive officer or the Chairman of
the Board of the Company stating that the Board has made the foregoing
determination, may at its option direct that such request be delayed for a
period not in excess of 75 days from the date of such request; provided,
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however, that the Company may not utilize this right more than twice in any
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twelve month period.
2.2 Incidental Registration.
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(a) Whenever the Company proposes to file a Registration Statement
(other than a Registration Statement filed pursuant to Section 2.1 and a
Registration Statement covering shares to be sold solely for the account of
Other Holders in which the Company is contractually prohibited from including
Registrable Shares), at any time and from time to time, it will, prior to such
filing, give written notice to all Stockholders of its intention to do so;
provided that no such notice need be given if no Registrable Shares are to be
included therein as a result of a determination of the managing underwriter
pursuant to Section 2.2(b). Upon the written request of a Stockholder or
Stockholders given within 10 days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Stockholder or Stockholders to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder or Stockholders;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 2.2 without obligation to any
Stockholder.
(b) If the registration for which the Company gives notice pursuant
to Section 2.2(a) is a registered public offering involving an underwriting, the
Company shall so advise the Stockholders as a part of the written notice given
pursuant to Section 2.2(a). In such event, the right of any Stockholder to
include its Registrable Shares in such registration pursuant to this Section 2.2
shall be conditioned upon such Stockholder's participation in such underwriting
on the terms set forth herein. All Stockholders proposing to distribute their
securities through such underwriting shall (together with the Company and Other
Holders distributing their securities through such underwriting), enter into an
underwriting agreement in
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customary form with the underwriter or underwriters selected for the
underwriting by the Company. Notwithstanding any other provision of this Section
2.2, if the managing underwriter determines that the inclusion of all shares
requested to be registered would adversely affect the offering, the Company may
limit the number of Registrable Shares to be included in the registration and
underwriting. The Company shall so advise all holders of Registrable Shares
requesting registration, and the number of shares that are entitled to be
included in the registration and underwriting shall be allocated as follows:
(i) first, there shall be included any shares proposed to
be sold by the Company;
(ii) second, there shall be included any shares permitted
to be included in the registration pursuant to Section 3(b) of the Amended and
Restated Registration Rights Agreement, dated as of February 20, 1998, as
amended, among the Company, America Online, Inc., Digital City Inc., and Banyan;
(iii) third, there shall be included in the registration
any shares permitted to be included pursuant to Section 2(b) of the Registration
Rights Agreement dated as of December 31, 1997 between the Company and Continuum
Software, Inc.;
(iv) fourth, there shall be included in the registration
any shares permitted to be included pursuant to Section 3(b) of the Amended and
Restated Registration Rights Agreement dated as of May 3, 1999 between the
Company and Banyan;
(v) fifth, there shall be included in the registration
any shares permitted to be included pursuant to Section 2(b) of the Registration
Rights Agreement dated as of June 30, 1999 between the Company and CBS
Corporation; and
(vi) sixth, except as otherwise required in any contract
to which the Company is a party, there shall be included in the registration any
shares requested to be included by the Stockholders and any Other Holders in
proportion, as nearly as practicable, to the respective number of shares of
Common Stock (on an as-converted basis) which they held at the time the Company
gives the notice specified in Section 2.2(a).
If any Stockholder or Other Holder would thus be entitled to include more
securities than such holder requested to be registered, the excess shall be
allocated among other requesting Stockholders and Other Holders pro rata in the
manner described in clause
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(vi) of the preceding sentence. If any holder of Registrable Shares or Other
Holder disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Company, and any Registrable
Shares or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3 Registration Procedures.
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(a) If and whenever the Company is required by the
provisions of this Agreement to use its reasonable best efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
shall:
(i) with respect to a registration under Section 2.1
above, (1) file with the Commission a Registration Statement with respect to
such Registrable Shares as soon as practicable (but in any event within 60 days
after receipt of the request under Section 2, unless the filing of such
registration statement will require the preparation of financial statements that
have not been prepared as of the date of the receipt of the request, in which
case the filing will be made within 90 days after receipt of the request) and
(2) use its reasonable best efforts to cause that Registration Statement to
become effective as soon as possible;
(ii) with respect to a registration under Section 2.1
above, as expeditiously as reasonably possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to comply
with the provisions of the Securities Act (including the anti-fraud provisions
thereof) and to keep the Registration Statement effective for 120 days from the
effective date or such lesser period until all such Registrable Shares are sold;
(iii) as expeditiously as reasonably possible furnish
to each Selling Stockholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as reasonably possible use its
reasonable best efforts to register or qualify the Registrable Shares covered by
the Registration Statement under the securities or Blue Sky laws of such states
as the Selling Stockholders shall reasonably request; provided, however, that
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the Company
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shall not be required in connection with this paragraph (iv) to qualify as a
foreign corporation or execute a general consent to service of process in any
jurisdiction;
(v) as expeditiously as reasonably possible, cause
all such Registrable Shares to be listed on each securities exchange or
automated quotation system on which similar securities issued by the Company are
then listed;
(vi) promptly provide a transfer agent and registrar
for all such Registrable Shares not later than the effective date of such
registration statement;
(vii) notify each Selling Stockholder, reasonably
promptly after it shall receive notice thereof, of the time when such
Registration Statement has become effective or a supplement to any Prospectus
forming a part of such Registration Statement has been filed; and
(viii) notify each seller of such Registrable Shares of
any request by the Commission for the amending or supplementing of such
Registration Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall reasonably promptly
notify the Selling Stockholders and, if requested, the Selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall reasonably promptly provide the
Selling Stockholders with revised Prospectuses and, following receipt of the
revised Prospectuses, the Selling Stockholders shall be free to resume making
offers of the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall notify all Selling Stockholders
in writing to such effect, and, upon receipt of such notice, each such Selling
Stockholder shall immediately discontinue any sales of Registrable Shares
pursuant to such Registration Statement until such Selling Stockholder has
received copies of a supplemented or amended Prospectus or until such Selling
Stockholder is advised in writing by the Company that the then current
Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus. The Company, as expeditiously as reasonably possible, shall advise
the Selling Stockholders that use of the then
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current Prospectus may be resumed or deliver copies of a supplemented or amended
Prospectus.
2.4 Allocation of Expenses. The Company will pay all Registration
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Expenses for all registrations under this Agreement; provided, however, that if
a registration under Section 2.1 is withdrawn at the request of Banyan (other
than as a result of information concerning the business or financial condition
of the Company which is first made known to Banyan after the date on which such
registration was requested or pursuant to the final sentence of Section 2.1(e))
and if Banyan elects not to have such registration counted as a registration
requested under Section 2.1, Banyan shall pay the Registration Expenses of such
registration. For purposes of this Section 2.4, the term "Registration
Expenses" shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
Nasdaq and exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, compensation of the employees of the Company and the
reasonable fees and expenses of one counsel selected by the Selling Stockholders
to represent the Selling Stockholders, state Blue Sky fees and expenses, and the
expense of any special audits incident to or required by any such registration,
but excluding underwriting discounts, selling commissions and the fees and
expenses of Selling Stockholders' own counsel (other than the counsel selected
to represent all Selling Stockholders).
2.5 Indemnification and Contribution.
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(a) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the seller of such Registrable Shares
and each of its officers, directors, employees and partners, each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, underwriter
and each such controlling person, on
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at least a quarterly basis for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
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extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof.
(b) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, each
seller of Registrable Shares, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors and officers and each underwriter
(if any) and each person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities or Blue
Sky laws or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to such seller
furnished in writing to the Company by or on behalf of such seller specifically
for use in connection with the preparation of such Registration Statement,
prospectus, amendment or supplement; provided, however, that the indemnity
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contained in this section shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if such action is effected without
the consent of the applicable Stockholder (which consent shall not be
unreasonably withheld); provided, further, that the obligations of a Stockholder
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hereunder shall be limited to an amount equal to the net proceeds to such
Stockholder of Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this
Section 2.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit
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the Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom; provided, that counsel for the Indemnifying Party, who
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shall conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably withheld); and,
provided, further, that the failure of any Indemnified Party to give notice as
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provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 2.5 except to the extent that the Indemnifying Party is
adversely affected by such failure. The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnifying
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Party shall pay such reasonable expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding; provided,
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further, that in no event shall the Indemnifying Party be required to pay the
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expenses of more than one law firm per jurisdiction as counsel for the
Indemnified Party. The Indemnifying Party also shall be responsible for the
reasonable expenses of such defense if the Indemnifying Party does not elect to
assume such defense. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, 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 of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this Section 2.5
is due in accordance with its terms but for any reason is held to be unavailable
to an Indemnified Party in respect any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Stockholders on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Stockholders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Stockholders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and equitable
if
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contribution pursuant to this Section 2.5 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this Section, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve such party from any other
obligation it or they may have thereunder or otherwise under this Section. No
party shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its prior written consent, which consent
shall not be unreasonably withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In the
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event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its reasonable best
efforts to cause its legal counsel to render customary opinions to the
underwriters with respect to the Registration Statement; and (c) use its
reasonable best efforts to cause its independent public accounting firm to issue
customary "cold comfort letters" to the underwriters with respect to the
Registration Statement.
2.7 Information by Holder. Each Stockholder including Registrable
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Shares in any registration shall furnish to the Company such information
regarding such Stockholder and the distribution proposed by such Stockholder as
the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
2.8 Rule 144 Requirements. After the earliest of (i) the closing
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of the sale of securities of the Company pursuant to a Registration Statement or
(ii) the registration by the Company of a class of securities under Section 12
of the Exchange Act, the Company agrees to:
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(a) make and keep current public information about the
Company available, as those terms are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) so long as a Stockholder owns any Registrable Shares, to
furnish to such Stockholder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144(c)
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as the Stockholder may reasonably request in complying with any
rule or regulation of the SEC allowing the Stockholder to sell any such
securities without registration.
2.9 Termination. All of the Company's obligations to register
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Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall terminate
five years after the closing of the Initial Public Offering.
3. Transfers of Rights. This Agreement, and the rights and obligations
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of Banyan hereunder, may not be assigned by Banyan except that (i) Banyan may
assign this Agreement, and its rights and obligations hereunder, to any person
to which at least 3,600,000 Shares are validly transferred by Banyan and (ii)
any other person to which Shares are validly transferred shall be deemed a
"Stockholder" hereunder; provided in each case that the transferee provides
written notice of such assignment to the Company and agrees in writing to be
bound hereby.
4. General.
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(a) Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
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remedies that may be available at law in the event of any breach of this
Agreement, Banyan shall be entitled to specific performance of the agreements
and obligations of the Company hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
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(c) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Delaware (without
reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
-------
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention:
Chief Financial Officer, or at such other address or addresses as may have been
furnished in writing by the Company to Banyan.
If to Banyan, at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Chief
Financial Officer, or at such other address or addresses as may have been
furnished to the Company in writing by Banyan.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but not such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
(f) Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company, and the holders of a
majority of the Registrable Shares; provided, that this Agreement may be amended
--------
with the consent of the holders of less than all Registrable Shares only in a
manner which applies to all such holders in the same fashion. Any such
amendment, termination or waiver effected in accordance with this Section 4(f)
shall be binding on all parties
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hereto, even if they do not execute such consent. Upon the effectuation of any
such amendment, the Company shall promptly give written notice to the
Stockholders, if any, who have not previously consented thereto in writing. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
(g) Pronouns. Whenever the context may require, any pronouns used
--------
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signature.
(i) Section Headings. The section headings are for the convenience
----------------
of the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
[signatures on following page]
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Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By:
---------------------------------------
Name:
Title:
PURCHASER:
BANYAN SYSTEMS INCORPORATED
By:
---------------------------------------
Name:
Title:
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