Exhibit 10.2
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NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of May 31, 2002, by and between
SWITCHBOARD INCORPORATED, a Delaware corporation having offices at 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Borrower") and SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank").
In connection with, among other documents, the Loan and Security Agreement (the
"Loan Documents") being concurrently executed herewith between Borrower and
Bank, Borrower agrees as follows:
1. Except for the granting of non-exclusive licenses or sublicenses by
Borrower in the ordinary course of business and as permitted in the
Loan Documents, Borrower has not, and shall not, sell, transfer,
assign, mortgage, pledge, lease, grant a security interest in, or
encumber any of Borrower's Intellectual Property (as defined below).
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the
Intellectual Property with any other party.
3. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative
Pledge Agreement.
4. As used herein,
(a) "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all intellectual
property rights in computer software and computer software
products now or hereafter existing, created, acquired or
held;
(iii) Any and all design rights which may be available to
Borrower now or hereafter existing, created, acquired or
held;
(iv) All Mask Works or similar rights available for the
protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims for damages by way of past, present and
future infringements of any of the rights included above,
with the right, but not the obligation, to xxx for and
collect such damages for said use or infringement of the
intellectual property rights identified above;
(viii) All licenses or other rights to use any of the Copyrights,
Patents, Trademarks, or Mask Works and all license fees and
royalties arising from such use to the extent permitted by
such license or rights; and
(ix) All amendments, extensions, renewals and extensions of any
of the Copyrights, Trademarks, Patents, or Mask Works; and
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(x) All proceeds and products of the foregoing, including
without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
(b) "Copyrights" means any and all copyright rights, copyright
applications, copyright registrations and like protections in
each work of authorship and derivative work thereof, whether
published or unpublished and whether or not the same also
constitutes a trade secret, now or hereafter existing, created,
acquired or held.
(c) "Mask Works" means all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter
acquired;
(d) "Patents" means all patents, patent applications and like
protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and
continuations-in-part of the same.
(e) "Trademarks" means any trademark and servicemark rights, whether
registered or not, applications to register and registrations of
the same and like protections, and the entire goodwill of the
business of Borrower connected with and symbolized by such
trademarks.
5. Capitalized terms used but not otherwise defined herein shall have the
same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to this
Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH
OF MASSACHUSETTS IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND,
AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS AGREEMENT;
PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS
JURISDICTION OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY,
CALIFORNIA. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO
OTHERWISE ENFORCE THE BANK'S RIGHTS AGAINST THE BORROWER OR ITS
PROPERTY.
7. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank (provided, however, in no event shall
this Agreement become effective until signed by an officer of Bank in
California).
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EXECUTED as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first written above.
BORROWER:
SWITCHBOARD INCORPORATED
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: CFO
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BANK:
SILICON VALLEY BANK d/b/a SILICON
VALLEY EAST
By: /s/Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Senior Vice President
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SILICON VALLEY BANK
By: /s/Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Assistant Vice President
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(Signed in Santa Clara, California)
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