Exhibit 10.19
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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This Agreement dated as of May 3, 1999 is entered into by and between
Switchboard Incorporated, a Delaware corporation (the "Company"), and Banyan
Systems Incorporated, a Massachusetts corporation (the "Purchaser").
WHEREAS, the Company and the Purchaser have entered into a Convertible
Secured Note Purchase Agreement as of August 29, 1997, as amended on February
20, 1998 and as of the date hereof (the "Note Purchase Agreement"); and
WHEREAS, the Company, the Purchaser and certain other stockholders of the
Company entered into an Amended and Restated Registration Rights Agreement dated
as of February 20, 1998 (the "Original Registration Rights Agreement"); and
WHEREAS, the Company and the Purchaser wish to grant to the Purchaser
registration rights with respect to certain securities it may acquire under the
amendment as of the date hereof to the Note Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
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other Federal agency 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 similar 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.
"Registrable Shares" means (i) the shares of Common Stock issued or
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issuable upon conversion of the Shares, and (ii) any other shares of 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 which are Registrable Shares shall cease to
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be Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities
Act, (ii) upon any sale in any manner to a person or entity which, by virtue of
Section 12 of this Agreement, is not entitled to the rights provided by this
Agreement, or (iii) at such time as they are eligible for sale under Rule 144(k)
under the Securities Act. [Wherever reference is made in this Agreement to a
request or consent of holders of a certain percentage of Registrable Shares, the
determination of such percentage shall include shares of Common Stock issuable
upon conversion of the Shares even if such conversion has not yet been
effected.]
"Registration Expenses" means the expenses described in Section 5.
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"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of Common Stock or
other securities of the Company substantially similar to Common Stock (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, any registration statement
covering only securities proposed to be issued in exchange for securities or
assets of another corporation or any registration statement covering only
securities to be sold for the account of stockholders of the Company other than
the Stockholders).
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar 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.
"Shares" means any shares of Common Stock acquired by the Purchaser
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pursuant to the exercise of, or the conversion of shares of Series C and D
Convertible Preferred Stock, $.01 par value per share, of the Company acquired
upon exercise of, the note(s) issued pursuant to the Note Purchase Agreement.
"Stockholders" means the Purchaser and any persons or entities to whom
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the rights granted under this Agreement are transferred by the Purchaser, its
successors or assigns pursuant to Section 12 hereof.
2. [reserved]
3. Incidental Registration.
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(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 2) at any time and from time to time, it will,
not later than 30 days prior to such filing, give written notice to all
Stockholders of its intention to do so which notice shall describe the proposed
registration and distribution, and upon the written request of a Stockholder or
Stockholders given within 20 days after the Company provides such notice (which
request shall state the intended method of
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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 3
before it has become effective without obligation to any Stockholder. The
Stockholders shall have the right to exercise their registration rights pursuant
to this Section 3 on any number of occasions that the Company shall determine to
file a registration statement.
(b) In connection with any registration under this Section 3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such registration unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided that such terms must be consistent with
this Agreement). If in the opinion of the managing underwriter it is appropriate
because of marketing factors to limit the number of Registrable Shares to be
included in the offering, then the Company shall be required to include in the
registration only that number of Registrable Shares, if any, which the managing
underwriter believes should be included therein. If the number of Registrable
Shares to be included in the offering in accordance with the foregoing is less
than the total number of shares which the holders of Registrable Shares have
requested to be included, then the holders of Registrable Shares who have
requested registration and other holders of securities entitled to include them
in such registration shall participate in the registration as follows:
(i) first, there shall be included any shares proposed to be
sold by the Company and any shares permitted to be included in the registration
pursuant to Section 2 or 3 of the Original Registration Rights Agreement in
accordance with the terms thereof;
(ii) second, there shall be included in the registration any
Registrable Shares proposed to be sold in accordance with this Agreement, pro
rata based upon the total ownership of shares of Common Stock by the holders of
Registrable Shares requested to be included therein; and
(iii) third, there shall be included in the registration any
shares held by other holders of securities entitled to include them in such
registration.
If any holder would thus be entitled to include more securities than such holder
requested to be registered, the excess shall be allocated among other requesting
holders pro rata in the manner described in the preceding sentence.
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4. Registration Procedures. If and whenever the Company is required by
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the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as 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 keep the
Registration Statement effective, in the case of a firm commitment underwritten
public offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or 180 days after
the effective date thereof;
(c) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus and any amendments or supplements to the prospectus, in conformity
with the requirements of the Securities Act, and such other documents as the
selling Stockholder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Shares owned by the selling
Stockholder; and
(d) as expeditiously as possible use its 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, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; provided, however, that the Company shall not be
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required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
(e) as expeditiously as possible use its best efforts to cause the
Registrable Shares covered by the Registration Statement to be listed on any
exchange, or admitted to trading on The Nasdaq Stock Market, where the Common
Stock is then listed or traded.
If the Company has delivered preliminary or final prospectuses 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 promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making
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offers of Registrable Shares and return all prospectuses to the Company. The
Company shall 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.
5. Allocation of Expenses. The Company will pay all Registration
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Expenses of all registrations under this Agreement. For purposes of this
Section 5, 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, exchange listing fees, printing expenses, fees and
expenses of counsel for the Company and the fees and expenses (up to $15,000) 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).
6. 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, 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 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 final prospectus, or any such amendment or supplement,
in reliance upon and in conformity with information
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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 any such untrue statement or omission or alleged
untrue 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,
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however, that the obligations of such Stockholders hereunder shall be limited to
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an amount equal to the proceeds to each Stockholder of Registrable Shares sold
in connection with such registration.
(c) Each party entitled to indemnification under this Section 6 (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 the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
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Party, who 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
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give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 6. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
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shall pay such 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. No Indemnifying Party, in
the
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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.
(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 holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 6 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 6 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Stockholder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, in each such case, the Company and such Stockholder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares 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 any such case, (A) no such holder will be
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required to contribute any amount in excess of the proceeds to it of all
Registrable Shares sold by it pursuant to such Registration Statement, and (B)
no person or entity guilty of fraudulent misrepresentation, within the meaning
of Section 11(f) of the Securities Act, shall be entitled to contribution from
any person or entity who is not guilty of such fraudulent misrepresentation.
7. [reserved]
8. Information by Holder. Each Stockholder including Registrable Shares
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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.
9. "Lock-Up" Agreement. Each Stockholder, if requested by the Company
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and the managing underwriter of an offering by the Company of Common Stock or
other securities of the Company pursuant to a Registration Statement, shall
agree not to sell publicly or otherwise transfer or dispose of any Registrable
Shares or other
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securities of the Company held by such Stockholder for a specified period of
time (not to exceed 180 days) following the effective date of such Registration
Statement; provided, that all officers and directors of the Company enter into
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similar agreements; and provided, further, that a Stockholder shall not be
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required by the terms of this Agreement to enter into such a "lock-up" agreement
if both of the following conditions are met: (i) such Stockholder holds at the
time of such request and at all times prior to the effectiveness of such
Registration Statement less than 1% of the outstanding securities of the Company
(assuming the conversion of any shares that are held by such Stockholder
convertible into Common Stock into shares of Common Stock) and (ii) the offering
is not the Company's initial public offering.
10. Rule 144 Requirements. After the earliest of (i) the closing of the
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sale of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its best efforts to 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) furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c), and the reporting requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or regulation
of the Commission allowing it to sell any such securities without registration.
11. Termination. The Company's obligations to register Registrable Shares
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pursuant to Section 3 of this Agreement shall continue until all such
Registrable Shares are registered.
12. Transfers of Rights. This Agreement, and the rights and obligations
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of the Purchaser hereunder, may be assigned by the Purchaser to any person or
entity to which Shares are transferred by the Purchaser, and such transferee
shall be deemed a
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"Purchaser" for purposes of this Agreement; provided, that the transferee
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provides written notice of such assignment to the Company.
13. General.
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(a) Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by overnight courier using a nationally recognized courier
service or first class certified or registered mail, return receipt requested,
postage prepaid:
If to the Company, at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention:
President, or at such other address or addresses as may have been furnished in
writing by the Company to the Purchaser, with a copy to Xxxx an Xxxx LLP, 00
Xxxxx Xxxxxx, Xxxxxx, XX 00000 Attention: Xxxx X. Xxxxxx, Esq.; or
If to the Purchaser, at the address of the Purchaser set forth on the
signature page of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing by the Purchaser,
Notices provided in accordance with this Section 13(a) shall be deemed
delivered upon personal delivery, one business day after being sent by overnight
courier or two business days after deposit in the mail.
(b) Entire Agreement. This Agreement embodies the entire agreement
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and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
(c) Amendments and Waivers. Any term of this Agreement may be amended
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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
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holders of less than all Registrable Shares only in a manner which affects all
Registrable Shares in the same fashion. 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.
(d) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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(e) Severability. The invalidity or unenforceability of any provision
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of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware.
(g) Costs. The prevailing party in any dispute arising out of or
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relating to this Agreement shall be entitled to reasonable attorneys' fees and
costs incurred in defending or pursuing such dispute.
(h) Facsimile Signatures. This Agreement may be executed by facsimile
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signature.
Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ Xxxx Xxxxxxxx
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Title: President
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PURCHASER:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Vice President and CFO
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Address: 000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
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