EXHIBIT 10.5
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WARRANT PURCHASE AGREEMENT
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This Warrant Purchase Agreement (this "Agreement") dated as of June 1, 1999
is entered into by and between Banyan Systems Incorporated, a Massachusetts
corporation (the "Company"), and CBS Corporation, a Pennsylvania corporation
(the "Purchaser").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Sale of Securities.
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1.1 Securities. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), Banyan will sell and issue to the
Purchaser, and the Purchaser will purchase from Banyan a warrant to purchase
250,000 shares of Common Stock, $.01 par value per share, of (the "Common
Stock") in the form attached hereto as Exhibit A (the "Warrant"), for the
consideration set forth in Section 1.2 of this Agreement (the "Purchase Price").
1.2 Purchase Price. The Purchase Price is two hundred fifty thousand
dollars ($250,000) and shall be paid as set forth on Schedule 1.2 attached
hereto.
2. The Closing.
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(a) The closing (the "Closing") of the sale and purchase of the
Warrant under this Agreement shall occur simultaneously with and at the same
place as the closing of the transactions contemplated by the Common Stock and
Warrant Purchase Agreement of even date herewith among Switchboard Incorporated,
Banyan and the Purchaser (the "Switchboard Purchase Agreement"). The date of
the Closing is hereinafter referred to as the "Closing Date."
(b) At the closing:
(i) Banyan shall deliver (or cause to be delivered) to the
Purchaser the various certificates, instruments and documents required to
be so delivered by Banyan pursuant to Section 7.2 of this Agreement.
(ii) The Purchaser shall deliver (or cause to be delivered) to
Banyan the various certificates, instruments and documents required to be
so delivered by the Purchaser pursuant to Section 7.3 of this Agreement.
(iii) Banyan shall deliver to the Purchaser the Warrant being
purchased at the Closing by the Purchaser, registered in the name of the
Purchaser.
3. Representations of Banyan. Except as disclosed by Banyan in Exhibit B
hereto, Banyan hereby represents and warrants to the Purchaser that the
statements contained in this Section 3 are true, complete and correct as of the
date of this Agreement. Exhibit B shall be organized into sections
corresponding with the sections of this Section 3 and the disclosure in any
section of Exhibit B shall be deemed to qualify (i) the corresponding section of
this Section 3 and (ii) other sections of this Section 3 to the extent it is
clearly apparent (notwithstanding the absence of a specific cross reference)
from a reading of such disclosure that such disclosure is applicable to such
other sections.
3.1 Organization and Standing. Banyan is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has the corporate power and authority to
conduct its business as presently conducted and as presently proposed to be
conducted by it and to enter into and perform this Agreement and to carry out
the transactions contemplated by this Agreement.
3.2 Issuance of Warrant. The issuance, sale and delivery of the
Warrant in accordance with this Agreement, and the issuance and delivery of the
shares of Common Stock issuable upon exercise of the Warrant (the "Warrant
Shares"), have been duly authorized by all necessary corporate action on the
part of Banyan, and all such Warrant Shares have been duly reserved for
issuance. The Warrant Shares, when issued upon exercise of the Warrant
following payment of the exercise price therefor, will be duly and validly
issued, fully paid and nonassessable.
3.3 Authority for Agreement; No Conflict. The execution, delivery
and performance by Banyan of this Agreement, and the consummation by Banyan of
the transactions contemplated hereby has been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by Banyan
and constitutes a valid and binding obligation of Banyan enforceable in
accordance with its terms, subject as to enforcement of remedies to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws affecting generally the enforcement of creditors' rights and
subject to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies. The execution
of and performance of the transactions contemplated by this Agreement and
compliance with its provisions by Banyan will not (a) conflict with or
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violate any provision of the Articles of Organization or By-laws of Banyan, (b)
other than as may be required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act ("HSR Act"), require on the part of Banyan any filing with, or any permit,
authorization, consent or approval of, any court, arbitrational tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency (each of the foregoing is hereafter referred to as a
"Governmental Entity"), (c) conflict with, result in a breach of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice, consent or waiver under, any contract,
lease, sublease, license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest (as
defined below) or other arrangement to which Banyan is a party or by which
Banyan is bound or to which its assets are subject, (d) result in the imposition
of any Security Interest upon any assets of Banyan or (e) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to Banyan or
any of its properties or assets, other than any of the foregoing events listed
in clauses (c), (d) or (e) of this Section 3.3 that would not have a material
adverse effect on the business, assets or financial condition of Banyan (a
"Banyan Material Adverse Effect"). For purposes of this Agreement, "Security
Interest" means any mortgage, pledge, security interest, encumbrance, charge, or
other lien (whether arising by contract or by operation of law) other than (i)
mechanic's, materialmen's, and similar liens, (ii) liens arising under worker's
compensation, unemployment insurance, social security, retirement, and similar
legislation, (iii) liens on goods in transit incurred pursuant to documentary
letters of credit, and (iv) statutory liens with respect to current taxes not
yet due and payable.
3.4 Governmental Consents. Except as may be required by the HSR Act,
no consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Governmental Entity is required on
the part of Banyan in connection with the execution and delivery by Banyan of
this Agreement, the offer, issuance, sale and delivery of the Warrant, the
issuance and delivery of the Warrant Shares or the other transactions to be
consummated at the Closing, as contemplated by this Agreement, except such
filings as shall have been made prior to and shall be effective on and as of the
Closing and such filings required to be made after the Closing under applicable
federal and state securities laws, and except any filings that, if not made as
required, would not have a Banyan Material Adverse Effect. Based on the
representations made by the Purchaser in Section 4 of this Agreement, the offer
and sale of the Warrant to the Purchaser will be in compliance with applicable
federal and state securities laws.
3.5 Reports and Financial Statements. Banyan has previously
furnished to the Purchaser complete and accurate copies, as amended or
supplemented, of its (a) Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999, as filed with the Securities and Exchange Commission, (the
"Commission"), and
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(b) Annual Report on Form 10-K for the fiscal year ended December 31, 1998, as
filed with the Commission (such reports are collectively referred to herein as
the "Banyan Reports"). As of their respective dates, the Banyan Reports did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
audited financial statements and unaudited interim financial statements of
Banyan included in the Banyan Reports (i) comply in all material respects with
applicable accounting requirements and the published rules and regulations of
the Commission with respect thereto, (ii) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby (except as may be indicated therein or in
the notes thereto, and in the case of quarterly financial statements, as
permitted by Form 10-Q under the Securities Exchange Act of 1934, as amended),
and (iii) fairly present the consolidated financial condition, results of
operations and cash flows of Banyan as of the respective dates thereof and for
the periods referred to therein.
3.6 Litigation. There is no action, suit or legal proceeding, or
governmental inquiry or investigation, pending against Banyan, or, to Banyan's
knowledge, threatened against, Banyan which questions the validity of this
Agreement or the right of Banyan to enter into this Agreement.
3.7 Absence of Certain Changes. Except as disclosed in the Banyan
Reports, since December 31, 1998, there has been no material adverse change in
the business, assets or financial condition of Banyan, other than changes
occurring in the ordinary course of business.
3.8 Undisclosed Liabilities. Banyan has no liability (whether
absolute, accrued, contingent or otherwise) of a nature required by GAAP to be
shown on a balance sheet which is material to Banyan, except for (i) liabilities
reflected in the Banyan Reports, (ii) liabilities which have arisen since March
31, 1999 in the ordinary course of business and (iii) contractual liabilities
incurred in the ordinary course of business.
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4. Representations of the Purchaser. Except as disclosed by the
Purchaser in Exhibit B-3 hereto, the Purchaser hereby represents and warrants to
Banyan that the statements contained in this Section 4 are true, complete and
correct as of the date of this Agreement. Exhibit B-3 shall be organized into
sections corresponding with the sections of this Section 4 and the disclosure in
any section of Exhibit B-3 shall be deemed to qualify (i) the corresponding
section of this Section 4 and (ii) other sections of this Section 4 to the
extent it is clearly apparent (notwithstanding the absence of a specific cross-
reference) from a reading of such disclosure that such disclosure is applicable
to such other sections.
4.1 Investment. The Purchaser is acquiring the Warrant and the
Warrant Shares for its own account for investment and not with a view to, or for
sale in connection with, any distribution thereof, nor with any present
intention of distributing or selling the same; and, except as contemplated by
this Agreement, the Purchaser has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for
the disposition thereof. The Purchaser is an "accredited investor" as defined
in Rule 501(a) under the Securities Act of 1933, as amended (the "Securities
Act").
4.2 Experience. The Purchaser is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Warrant and the Warrant Shares. The
Purchaser has been furnished with and has had access to such information as the
Purchaser considered necessary to make a determination as to the purchase of the
Warrant and the Warrant Shares.
4.3 Organization and Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and has the corporate power and authority to
conduct its business as presently conducted by it and to enter into and perform
this Agreement and to carry out the transactions contemplated by this Agreement.
4.4 Authority for Agreement; No Conflict. The execution, delivery
and performance by the Purchaser of this Agreement, and the consummation by the
Purchaser of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a valid and binding
obligation of the Purchaser enforceable in accordance with its terms, subject as
to enforcement of remedies to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws affecting generally the
enforcement of creditors' rights and subject to a court's discretionary
authority with respect to the granting of a decree ordering specific performance
or other equitable remedies. The execution of and
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performance of the transactions contemplated by this Agreement and compliance
with its provisions by the Purchaser will not (a) conflict with or violate any
provision of the Articles of Incorporation or By-laws of the Purchaser, (b)
other than as may be required by the HSR Act, require on the part of the
Purchaser any filing with, or any permit, authorization, consent or approval of,
any Governmental Entity, (c) conflict with, result in a breach of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice, consent or waiver under, any contract,
lease, sublease, license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest or
other arrangement to which the Purchaser is a party or by which the Purchaser is
bound or to which its assets are subject, (d) result in the imposition of any
Security Interest upon any assets of the Purchaser or (e) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the
Purchaser or any of its properties or assets, other than any of the foregoing
events listed in clause (c), (d) or (e) of this Section 4.4 that would not have
a material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement (a "Purchaser Material Adverse Effect").
4.5 Governmental Consents. Except as may be required by the HSR
Act, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any Governmental Entity
is required on the part of the Purchaser in connection with the execution and
delivery by the Purchaser of this Agreement, except such filings as shall have
been made prior to and shall be effective on and as of the Closing, and except
any filings that, if not made as required, would not have a Purchaser Material
Adverse Effect.
4.6 Litigation. There is no action, suit or legal proceeding, or
governmental inquiry or investigation, pending against the Purchaser or, to the
Purchaser's knowledge, threatened against the Purchaser which questions the
validity of this Agreement or the right of the Purchaser to enter into this
Agreement, or which would have a Purchaser Material Adverse Effect.
5. Reservation of Common Stock. Banyan will at all times reserve and
keep available, solely for issuance and delivery upon the exercise of the
Warrant, such number of Warrant Shares and other stock, securities and property,
as from time to time shall be issuable upon the exercise of the Warrant.
6. Transfer of Warrant. Neither the Warrant nor any interest therein
is transferable in any respect.
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7. Conditions to Closing.
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7.1 Conditions to Each Party's Obligation. The obligation of
Purchaser to purchase the Warrant and the obligation of Banyan to sell and issue
the Warrant shall be subject to the satisfaction prior to (or, in the case of
the condition set forth in Section 7.1(d) of this Agreement, simultaneously
with) the Closing of the following conditions:
(a) HSR Act Waiting Period. Any waiting period (and any extension
thereof) under the HSR Act applicable to any of the transactions contemplated
hereby shall have expired or been earlier terminated.
(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other legal restraint or prohibition
preventing or materially restricting or altering the consummation of the
transactions contemplated by this Agreement shall be in effect; provided,
however, that the provisions of this Section 7.1(b) shall not be available to
any party that has directly or indirectly solicited or encouraged any such
order, injunction or other restraint or prohibition.
(c) Government Action. There shall not be any pending action by or
before any governmental authority challenging or seeking to restrain or prohibit
or materially alter the consummation of the transactions contemplated by this
Agreement in any material respect or seeking to obtain any damages from the
Purchaser or Banyan in connection with the transactions contemplated by this
Agreement; provided, however, that the provisions of this Section 7.1(c) shall
not be available to any party that has directly or indirectly solicited or
encouraged any such action.
(d) Switchboard Purchase Agreement. The closing of the transactions
contemplated by the Switchboard Purchase Agreement shall occur simultaneously
with the Closing.
7.2 Additional Conditions to Purchaser's Obligations.niN The
obligations of the Purchaser to purchase the Warrant at the Closing are subject
to the fulfillment to its satisfaction, on or prior to the Closing Date, of the
following conditions, any of which may be waived by the Purchaser in its sole
discretion:
(a) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties of Banyan set forth in Section 3
shall be true and correct in all respects as of the Closing Date as though made
as of the Closing Date (other than those made as of a particular date, which
shall be true and correct in all respects as of such date), except in each case
for such failures of representations and warranties to be true and correct (i)
as the result of changes expressly contemplated by this Agreement, and (ii) that
would not have a Banyan Material Adverse Effect (it being agreed that the clause
(ii) shall be inapplicable to any portion of a representation and warranty which
already contains a Banyan Material
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Adverse Effect or other materiality qualification or, if an entire
representation and warranty is so qualified, to all of such representation and
warranty), and the Purchaser shall have received a certificate signed by an
authorized officer of Banyan attesting to the foregoing. Banyan shall have
performed or complied in all material respects with all obligations and
conditions herein required to be performed or observed by it.
(b) Consents and Waivers. Banyan shall have obtained in a timely
fashion any and all consents, permits and waivers necessary for consummation of
the transactions contemplated by this Agreement, other than any which if not
obtained or effected would not reasonably be expected to have a Banyan Material
Adverse Effect.
(c) Certificates and Documents. Banyan shall have delivered to the
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Purchaser:
(i) the Articles of Organization of Banyan, as amended and in
effect as of the Closing Date, certified as of a recent date
by the Secretary of State of the Commonwealth of
Massachusetts;
(ii) certificates, as of a recent date, as to the corporate good
standing of Banyan issued by the Secretary of State of the
Commonwealth of Massachusetts;
(iii) by-laws of Banyan, certified by its Clerk or Assistant
Clerk as of the Closing Date; and
(iv) copies of the resolutions of Banyan's Board of Directors
authorizing the transactions contemplated by this Agreement,
certified by its Clerk or Assistant Clerk as of the Closing
Date.
(d) Opinion of Counsel. The Purchaser shall have received an opinion
from the Company's counsel in form and substance of Exhibit C.
7.3 Additional Conditions to Banyan's Obligations.nN The obligations
of Banyan to sell and issue the Warrant at the Closing are subject to the
fulfillment to its satisfaction on or prior to the Closing Date, of the
following conditions, any of which may be waived by Banyan in its sole
discretion:
(a) Representations and Warranties Correct. The representations and
warranties of the Purchaser set forth in Section 4 shall be true and correct in
all respects as of the Closing Date as though made as of the Closing Date (other
than those made as of a particular date, which shall be true and correct in all
respects as of such date),
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except in each case for such failures of representations and warranties to be
true and correct (i) as the result of changes expressly contemplated by this
Agreement, and (ii) that would not have a Purchaser Material Adverse Effect (it
being agreed that the clause (ii) shall be inapplicable to any portion of a
representation and warranty which already contains a Purchaser Material Adverse
Effect or other materiality qualification or, if an entire representation and
warranty is so qualified, to all of such representation and warranty), and
Banyan shall have received a certificate signed by an authorized officer of the
Purchaser attesting to the foregoing. The Purchaser shall have performed or
complied in all material respects with all obligations and conditions herein
required to be performed or observed by it.
(b) The Company shall have received an opinion from the Purchaser's
counsel substantially in form and substance of Exhibit D.
8. Indemnification
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8.1 Indemnification by Banyan. Banyan shall indemnify the Purchaser
and its affiliates and their respective officers, directors, employees, agents
and representatives against, and hold them harmless from, any loss, liability,
claim, damage or expense (including reasonable legal fees and expenses)
("Losses"), actually incurred by them, as incurred (payable promptly upon
written request), arising from, in connection with or otherwise with respect to:
(a) any breach of any representation or warranty of Banyan contained
in this Agreement or in the closing certificate delivered at the Closing
pursuant to Section 7.2(a); and
(b) any breach of any covenant of Banyan contained in this Agreement.
8.2 Indemnification by Purchaser. The Purchaser shall indemnify
Banyan and its affiliates and their respective officers, directors, employees,
agents and representatives against, and hold them harmless from, any Losses,
actually incurred by them, as incurred (payable promptly upon written request),
arising from, in connection with or otherwise with respect to:
(a) any breach of any representation or warranty of the Purchaser
contained in this Agreement or in the closing certificate delivered at the
closing pursuant to Section 7.3(a); and
(b) any breach of any covenant of the Purchaser contained in this
Agreement.
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8.3 Calculation of Losses. The amount of any Loss for which
indemnification is provided under this Section 8 shall be calculated net of any
amounts actually recovered by the indemnified party under insurance policies
with respect to such Loss and shall be (i) increased to take account of any net
tax cost incurred by the indemnified party arising from the receipt of indemnity
payments hereunder (grossed up for such increase) and (ii) reduced to take
account of any net tax benefit realized by the indemnified party arising from
the incurrence or payment of any such Loss. In computing the amount of any such
tax cost or tax benefit, the indemnified party shall be deemed to recognize all
other items of income, gain, loss deduction or credit before recognizing any
item arising from the receipt of any indemnity payment hereunder or the
incurrence or payment of any indemnified Loss.
8.4 Termination of Indemnification. The obligations to indemnify and
hold harmless any party, pursuant to this Section 8, shall terminate upon the
second anniversary of the Closing Date; provided, however, that such obligations
to indemnify and hold harmless shall not terminate with respect to any item as
to which the person to be indemnified shall have, before such anniversary date,
previously made a claim by delivering a notice of such claim (stating in
reasonable detail the basis of such claim) pursuant to Section 8.5 to the party
to be providing the indemnification.
8.5 Procedures.
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(a) In order for a party (the "indemnified party"), to be entitled to
any indemnification provided for under this Agreement in respect of, arising out
of or involving a claim made by any person against the indemnified party (a
"Third Party Claim"), such indemnified party must notify the indemnifying party
in writing of the Third Party Claim promptly following receipt by such
indemnified party of written notice of the Third Party Claim; provided, however,
that failure to give such notification shall not affect the indemnification
provided hereunder except to the extent the indemnifying party shall have been
actually prejudiced as a result of such failure. Thereafter, the indemnified
party shall deliver to the indemnifying party, promptly following the
indemnified party's receipt thereof, copies of all notices and documents
(including court papers) received by the indemnified party relating to the Third
Party Claim and not also addressed to the indemnifying party.
(b) If a Third Party Claim is made against an indemnified party, the
indemnifying party shall be entitled to participate in the defense thereof and,
if it so chooses, to assume the defense thereof with counsel selected by the
indemnifying party; provided, however, that such counsel is not reasonably
objected to by the indemnified party. Should the indemnifying party so elect to
assume the defense of a Third Party Claim, the indemnifying party shall not be
liable to the indemnified party for any legal expenses subsequently incurred by
the indemnified party in connection with the defense thereof. If the
indemnifying party assumes such defense, the
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indemnified party shall have the right to participate in the defense thereof and
to employ counsel, at its own expense, separate from the counsel employed by the
indemnifying party, it being understood that the indemnifying party shall
control such defense. The indemnifying party shall be liable for the fees and
expenses of counsel employed by the indemnified party for any period during
which the indemnifying party has not assumed the defense thereof. If the
indemnifying party chooses to defend or prosecute a Third Party Claim, all the
indemnified parties shall cooperate in the defense or prosecution thereof. Such
cooperation shall include the retention and (upon the indemnifying party's
request) the provision to the indemnifying party of records and information that
are reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Whether or not the indemnifying
party assumes the defense of a Third Party Claim, the indemnified party shall
not admit any liability with respect to, or settle, compromise or discharge,
such Third Party Claim without the indemnifying party's prior written consent
(which consent shall not be unreasonably withheld). If the indemnifying party
assumes the defense of a Third Party Claim, the indemnified party shall agree to
any settlement, compromise or discharge of a Third Party Claim that the
indemnifying party may recommend and that by its terms obligates the
indemnifying party to pay the full amount of the liability in connection with
such Third Party Claim, which releases the indemnified party completely in
connection with such Third Party Claim and that would not otherwise adversely
affect the indemnified party. Notwithstanding the foregoing, the indemnifying
party shall not be entitled to assume the defense of any Third Party Claim (and
shall be liable for the fees and expenses of counsel incurred by the indemnified
party in defending such Third Party Claim) if the Third Party Claim seeks an
order, injunction or other equitable relief or relief for other than money
damages against the indemnified party that the indemnified party reasonably
determines, after conferring with its outside counsel, would reasonably be
expected to have a material adverse effect on the assets, business, financial
condition of results of operations of the indemnified party and cannot be
separated from any related claim for money damages; provided, however, that the
indemnifying party will not be bound by any determination in such Third Party
Claim so defended by the indemnified party, or any compromise or settlement
effected without its consent. If such equitable relief or other relief portion
of the Third Party Claim can be so separated from that for money damages, the
indemnifying party shall be entitled to assume the defense of the portion
relating to money damages.
(c) Other Claims. In the event any indemnified party has a claim
against any indemnifying party under Section 8.1 or 8.2 that does not involve a
Third Party Claim being asserted against or sought to be collected from such
indemnified party, the indemnified party shall deliver notice of such claim with
reasonable promptness to the indemnifying party. The failure by any indemnified
party so to notify the indemnifying party shall not relieve the indemnifying
party from any
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liability that it may have to such indemnified party under Section 8.1 or 8.2,
except to the extent the indemnifying party shall have been actually prejudiced
as a result of such failure. If the indemnifying party does not notify the
indemnified party within 30 calendar days following its receipt of such notice
that the indemnifying party disputes its liability to the indemnified party
under Section 8.1 or 8.2, such claim specified by the indemnified party in such
notice shall be conclusively deemed a liability of the indemnifying party under
Section 8.1 or 8.2 and the indemnifying party shall pay the amount of such
liability to the indemnified party on demand or, in the case of any notice in
which the amount of the claim (or any portion thereof) is estimated, on such
later date when the amount of such claim (or such portion thereof) becomes
finally determined. If the indemnifying party has timely disputed its liability
with respect to such claim, as provided above, the indemnifying party and the
indemnified party shall proceed in good faith to negotiate a resolution of such
dispute and, if not resolved through negotiations, any party may commence
litigation in an appropriate court of competent jurisdiction.
8.6 Survival of Representations. The representations and warranties
contained in this Agreement and in the closing certificates delivered at the
closing pursuant to Sections 7.2(a) and 7.3(a) shall survive the Closing and
shall terminate at the close of business two years following the Closing Date.
8.7 Limitations.
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(a) Except with respect to claims based on actual fraud, from and
after the Closing, the rights of the indemnified parties under this Section 8
shall be the sole and exclusive remedies of the indemnified parties and their
respective affiliates with respect to claims resulting from or relating to any
actual or alleged breach of representation or warranty or failure to perform any
covenant contained in this Agreement or otherwise relating to the transactions
that are the subject of this Agreement. Without limiting the generality of the
foregoing, in no event shall Banyan or the Purchaser, their successors or
permitted assigns, be entitled to claim or seek rescission of the transactions
consummated under this Agreement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the aggregate liability of Banyan for the sum of all Losses under
this Section 8 shall not exceed $250,000.
(c) In no event shall any indemnifying party be responsible and liable
for any Losses or other amounts under this Section 8 that are consequential,
incidental, in the nature of lost profits, diminution in value, damage to
reputation or the like, special or punitive or otherwise not actual Losses.
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9. Termination.
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9.1 Termination of Agreement. This Agreement shall terminate prior
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to the Closing as provided below:
(a) the parties may terminate this Agreement by mutual written
consent;
(b) this Agreement shall terminate simultaneously with the termination
of the Switchboard Purchase Agreement in accordance with the terms thereof.
9.2 Effect of Termination. If this Agreement terminates pursuant
to Section 9.1 of this Agreement, all obligations of the parties hereunder shall
terminate without any liability of any party to the other parties.
10. Miscellaneous.
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10.1 HSR Act Filings. Each of the parties shall promptly file (or
cause to be filed) any Notification and Report Forms and related material that
it may be required to file with the Federal Trade Commission and the Antitrust
Division of the United States Department of Justice under the HSR Act, shall use
commercially reasonable efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable; provided, however,
that no party shall be required to divest any of their respective businesses or
assets, or to take or agree to take any other action or agree to any limitation
that would reasonably be expected to have a material adverse effect on such
party's business, assets or financial condition.
10.2 Expenses. Each party shall pay its own fees and expenses in
connection with the preparation and evaluation of this Agreement and the other
agreements contemplated hereby and the closing of the transactions contemplated
hereby and thereby.
10.3 Brokers. Banyan and the Purchaser will indemnify and save the
other harmless from and against any and all claims, liabilities or obligations
with respect to brokerage or finders' fees or commissions, or consulting fees in
connection with the transactions contemplated by this Agreement asserted by any
person on the basis of any agreement, statement or representation alleged to
have been made by such indemnifying party.
10.4 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
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10.5 Specific Performance. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each party shall be entitled to specific performance of the
agreements and obligations hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York (without
reference to the conflicts of law provisions thereof).
10.7 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 Banyan, 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 Banyan to the Purchaser, with a copy to Xxxx and Xxxx
LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 Attention: Xxxx X. Xxxxxx, Esq.;
If to the Purchaser, at CBS Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Chief Financial Officer, or at such other address or addresses
as may have been furnished to Banyan in writing by the Purchaser, with a copy to
CBS Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General
Counsel.
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 no 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.
10.8 Complete Agreement. This Agreement (including its Exhibits) and
the Other Agreements constitute 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.
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10.9 Amendments and Waivers. Except as otherwise expressly set
forth in this Agreement, 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 Banyan and the Purchaser. 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.
10.10 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.
10.11 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 shall constitute one and the same document. This
Agreement may be executed by facsimile signatures.
10.12 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.
10.13 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. Neither party may assign its respective rights or obligations
under this Agreement without the prior written consent of the other party
hereto.
[signatures on following page]
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Executed as of the date first written above.
BANYAN:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Chief Financial
Officer
PURCHASER:
CBS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Executive VP and Chief Financial
Officer
(signature page to warrant purchase agreement)
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SCHEDULE 1.2
Payment of Purchase Price
-------------------------
The Purchase Price of two hundred fifty thousand dollars ($250,000) shall
be paid, in the discretion of the Purchaser, by one of the following three
methods:
(i) the Purchaser shall arrange for the placement of advertising and
promotion of Banyan in the Placement Possibilities and the Available
Placement Types set forth below, with an aggregate value of two
hundred and fifty thousand dollars ($250,000) (with prices of
advertising determined on the same basis as in the Advertising and
Promotion Agreement);
(ii) the Purchaser shall purchase from Banyan an amount of information
technology services (of the type described on Annex 1.2-I attached to
this Schedule 1.2) sufficient for Banyan to realize a Margin (as
defined in this Schedule 1.2) of two hundred and fifty thousand
dollars ($250,000); or
(iii) a combination of the foregoing clauses (i) and (ii) which has an
aggregate value of two hundred and fifty thousand dollars ($250,000).
The Purchaser shall make the election described in this Schedule 1.2 by
delivering to Banyan written notice thereof pursuant to Section 10.7 of the
Agreement within 30 days of the date of the Agreement. The obligation of the
Purchaser to pay the Purchase Price is a binding obligation of the Purchaser.
As used in this Schedule 1.2, the term "Margin" shall mean the difference
between the price(s) agreed upon by Banyan and the Purchaser for any information
technology service(s) to be performed by Banyan pursuant to Section 1.2 of the
Agreement and this Schedule 1.2 and Banyan's cost to perform the applicable
service(s).
To the extent that the Purchaser elects pursuant to this Schedule 1.2 to
constitute the Purchase Price in whole or in part with the purchase from Banyan
of information technology services, the Margin shall apply to all services
performed by or on behalf of Banyan during the period ending one year after the
date of the Agreement. For purposes of this Schedule 1.2, "performance" shall
include services which are contracted for by the Purchaser during the period
ending one year after the date of the Agreement but are not performed or
completed by Banyan within that period for reasons which are attributable to the
Purchaser. Notwithstanding the foregoing, the terms and conditions to govern
any services performed by Banyan for the Purchaser shall be governed by a
separate Services Agreement which shall be substantially in the form attached to
this Schedule 1.2 as Annex 1.2-II.
1.2(a)-1
PLACEMENT POSSIBILITIES
1. CBS Television Network programming
2. CBS Owned and Operated (a) Television and (b) Radio Stations programming
3. CBS outdoor billboards
4. CBS Internet Sites
5. CBS Cable
AVAILABLE PLACEMENT TYPES:
-- 30 second units, where available
-- 15 second units, where available
-- 10 second units, where available
-- URL Scrolls (5 seconds)
-- On-air mention (15 seconds)
-- Banner ads (10 seconds), buttons and sponsorships
-- Credit rolls/sign-offs (5 seconds)
1.2(a)2
