Exhibit 10.23
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CONVERTIBLE SECURED NOTE PURCHASE AGREEMENT
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This Agreement dated as of August 29, 1997 is entered into by and among
Switchboard Incorporated, a Delaware corporation (the "Company"), and Banyan
Systems Incorporated, a Massachusetts corporation (the "Purchaser").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Note.
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1.1 Authorization. The Company has duly authorized the sale and
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issuance, pursuant to the terms of this Agreement, of a Convertible Secured Note
in the maximum aggregate principal amount of $3,000,000.00, substantially in the
form attached hereto as Exhibit A (the "Note"). The Note shall be convertible,
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pursuant to the terms thereof, into shares of the Company's Series C Convertible
Preferred Stock, $.01 par value per share (the "Series C Preferred"), having the
rights, restrictions, privileges and preferences set forth in the Company's
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
and the Certificate of Amendment attached hereto as Exhibit B (the "Certificate
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of Amendment"). The Company has authorized and reserved, and will at all times
the Note is outstanding keep authorized and reserved, a sufficient number of
shares of its Series C Preferred to satisfy the conversion rights of the holder
of the Note and of its common stock to satisfy the conversion rights of holders
of shares of Series C Preferred set forth in Sections 4 and 5 of the Certificate
of Incorporation. As soon as practicable following the Closing (as defined
below), the Company will file the Certificate of Amendment with the Secretary of
State of the State of Delaware. The shares of Series C Preferred into which the
Note is convertible are referred to as the "Shares."
1.2 Initial Sale of Note. Subject to the terms and conditions of
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this Agreement, at the Initial Closing (as defined below) the Company will sell
and issue to the Purchaser, and the Purchaser will purchase, the Note. The
initial principal amount of the Note shall be evidenced by a notation on
Schedule I of the Note. The parties agree and acknowledge that any increases or
decreases in the principal amount of the Note outstanding at any time made in
accordance with Section 1.3 shall be evidenced by a further notation on Schedule
I of the Note (such notation to be made by the Purchaser, who will provide a
copy of the revised Schedule I to the Company). Any notations made to Schedule
I by the Purchaser shall be binding and final absent manifest error and unless
disputed by the Company within seven (7) business days of receipt by the Company
of such notice from the Purchaser. The parties further agree and acknowledge
that the form of the Note (specifically the stated maximum aggregate principal
amount of $3,000,000 and the use of Schedule I) is merely intended to facilitate
subsequent increases or decreases, if any, in principal amount in accordance
with Section 1.3 and that the Purchaser shall not, under any circumstances, be
obligated to purchase any additional principal amount beyond the initial
principal amount annotated on Schedule I of the Note.
1.3 Subsequent Increases and Decreases in Principal Amount.
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(a) Investment at the Request of the Company. The Company and
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the Purchaser further agree that if within 32 months of the date of this
Agreement, in the discretion of the Board of Directors of the Company, the
Company shall desire additional financing, the Company shall deliver to the
Purchaser a written notice requesting that the principal amount of the Note be
increased by the amount stated in the notice in exchange for a payment from the
Purchaser to the Company of such amount. The Purchaser shall have the right (but
not the obligation), for a period of 15 days following delivery of such notice,
to so increase the principal amount of the Note. As a condition precedent to,
and simultaneously with, the increase in the principal amount of the Note, (x)
at the request of the Purchaser, the Company shall deliver to the Purchaser (A)
the most recent available Balance Sheet (as defined in Section 3.9 below), (B)
Exhibit C hereto, updated through the date of the closing of such increase, and
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(C) a certificate, dated as of the date of the closing of such increase,
certifying that the representations and warranties of the Company contained in
Section 3 of this Agreement are true and correct in all material respects as of
such date, (y) at the request of the Company, the Purchaser shall deliver to the
Company a certificate, dated as of the date of the increase in the principal
amount of the Note, certifying that the representations and warranties contained
in Section 4 of this Agreement with respect to the Purchaser are true and
correct as of such date and (z) Schedule I to the Note shall be updated to
reflect such increase.
(b) Investment at the Request of the Purchaser. The Company
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hereby grants to the Purchaser an option to increase in the principal amount of
the Note up to the maximum aggregate principal amount as set forth in Section
1.1 (the "Option") by delivery of a written notice to the Company (the "Exercise
Notice"). The Purchaser shall have the right to exercise the Option (which shall
be deemed to occur upon delivery of the Exercise Notice for purposes of this
sentence) at any time and from time to time prior to the expiration of the 32-
month period beginning on the date of this Agreement.
(c) Redemption at the Request of the Company. The Note may, at
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the option of the Company, be called for redemption, in whole or in part at any
time, at 100% of the principal amount so redeemed, plus accrued and unpaid
interest on such redeemed principal amount to the date fixed for redemption. The
Company shall give at least thirty (30) days prior written notice of redemption
to the Purchaser at its address below, and the notice of redemption shall
specify the date and place designated for redemption. On or after the redemption
date fixed in the notice of redemption, no further interest shall accrue on the
principal amount so redeemed, and the Note (to the extent so redeemed) shall
cease to be convertible as set forth in Section 2 of the Note, provided that the
Note shall remain convertible as set forth in Section 2 of the Note from the
date of notice of redemption until the redemption date fixed in such notice.
Payment of the redemption price shall be made to the Purchaser of this Note upon
presentation and surrender of this Note accompanied by a duly executed
instrument of transfer in blank, at the principal executive office of the
Company. In the event of a partial redemption, this Note shall be presented to
the Company for endorsement of the amount of payment and date paid as a
condition precedent to such payment.
2. The Closing. The initial closing (the "Initial Closing") of the
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initial sale and purchase of the Note under this Agreement shall take place at
the offices of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
simultaneously with the execution and delivery of this Agreement, or at such
other time, date and place as are mutually agreeable to the Company and
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the Purchaser. At the Initial Closing, the Company shall deliver to the
Purchaser the Note pursuant to Section 1.2 above. Subsequent closings (each a
"Subsequent Closing"), if any, of the sale and purchase of the Note under
Section 1.3 may take place from time to time at such time and place agreed to by
the parties no later than June 29, 2000. The Initial Closing and the Subsequent
Closings, if any, shall hereinafter be referred to individually as a "Closing"
and collectively as the "Closings." The date of each Closing is hereinafter
referred to as a "Closing Date." If at any Closing any of the conditions
specified in Section 5 shall not have been fulfilled, the Purchaser shall, at
its election, be relieved of all of its obligations under this Agreement without
thereby waiving any other rights it may have by reason of such failure or such
non-fulfillment. If at any Closing any of the conditions specified in Section 6
shall not have been fulfilled, the Company shall, at its election, be relieved
of all of its obligations under this Agreement without thereby waiving any other
rights it may have by reason of such failure or such non-fulfillment.
3. Representations of the Company. In order to induce the Purchaser to
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enter into this Agreement and subject to and except as disclosed by the Company
in Exhibit C hereto, the Company hereby represents and warrants to the Purchaser
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as follows:
3.1 Organization and Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
presently conducted and as proposed to be conducted by it and to enter into and
perform this Agreement and the agreements set forth in Section 5.1 below
(collectively with the Note, the "Ancillary Agreements") and to carry out the
transactions contemplated by this Agreement and the Ancillary Agreements. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in the Commonwealth of Massachusetts and in every other jurisdiction in
which the failure to so qualify would have a material adverse effect on the
operations or financial condition of the Company. The Company has furnished to
counsel to the Purchaser true and complete copies of its Certificate of
Incorporation and By-Laws, each as amended to date and presently in effect. The
Company is not in violation of any term of its Certificate of Incorporation or
By-laws, or in violation of any term of any agreement, instrument, judgement,
decree, order, statute, rule or government regulation applicable to the Company
or to which the Company is a party, other than any violation that would not have
a material adverse effect on the Company.
3.2 Capitalization. The authorized capital stock of the Company
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(assuming the filing of the Certificate of Amendment with the Secretary of State
of the State of Delaware on the date hereof) consists of 25,000,000 shares of
common stock, $.01 par value per share (the "Common Stock"), of which 7,000,000
shares are issued and outstanding, and 4,500,000 shares of Preferred Stock, $.01
par value per share, 750,000 shares of which have been designated as Series A
Preferred Stock, $.01 par value per share (the "Series A Preferred"), 750,000 of
which shares are issued and outstanding, 1,500,000 shares of which have been
designated as Series B Preferred Stock, $.01 par value per share (the "Series B
Preferred"), none of which shares are issued or outstanding, and 2,250,000
shares of Series C Preferred, none of which are issued and outstanding. All of
the issued and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable. Except as set forth in the
Series A Preferred Stock Purchase Agreement among the Company, America Online,
Inc., and Digital City, Inc. dated as of November 5, 1996 and the agreement and
warrants referenced
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therein (collectively, the "Series A Agreements") or rights to which the
Purchaser is entitled as set forth in this Agreement and the Ancillary
Agreements, and except for issuances pursuant to the Company's 1996 Stock
Incentive Plan (as it may be amended from time to time), (i) no subscription,
warrant, option, convertible security or other right (contingent or otherwise)
to purchase or acquire any shares of capital stock of the Company is authorized
or outstanding, (ii) the Company has no agreement or obligation (contingent or
otherwise) to issue any subscription, warrant, option, convertible security or
other such right or to issue or distribute to holders of any shares of its
capital stock any evidences of indebtedness or assets of the Company, and (iii)
the Company has no agreement or obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or make any other distribution in
respect thereof. All of the issued and outstanding shares of capital stock of
the Company have been offered, issued and sold by the Company in compliance with
applicable Federal and state securities laws. There are no preemptive rights,
rights of first refusal, put or call rights or obligations or anti-dilution
rights with respect to the issuance, sale or redemption of the Company's capital
stock, other than as set forth in the Series A Agreement and rights to which the
Purchaser is entitled as set forth in this Agreement and the Ancillary
Agreements. Except as set forth in the Series A Agreements and other than the
rights granted to the Purchasers herein or in the Ancillary Agreements, there
are no rights to have the Company's capital stock registered for sale to the
public in connection with the laws of any jurisdiction or under the Securities
Act of 1933, as amended (the "Securities Act"), no agreements relating to the
voting of the Company's voting securities to which the Company is a party or, to
its knowledge, any other such agreements, and no restrictions on the transfer of
the Company's capital stock under any agreement to which the Company is a party
or, to its knowledge, any other such agreement.
3.3 Subsidiaries, Etc. The Company has no subsidiaries and does not
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own or control, directly or indirectly, any shares of capital stock of any other
corporation or any interest in any partnership, joint venture or other non-
corporate business enterprise.
3.4 Stockholder List. Exhibit B summarizes the capital structure of
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the Company as of the Closing Date.
3.5 Issuance of Note. The issuance, sale and delivery of the Note in
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accordance with this Agreement, and the issuance and delivery of the Shares upon
conversion of the Note and the shares of Common Stock issuable upon conversion
of the Shares, have been duly authorized by all necessary corporate action on
the part of the Company, and all such shares have been duly reserved for
issuance. The Shares when so issued, sold and delivered against payment
therefor in accordance with the provisions of the Note, and the shares of Common
Stock issuable upon conversion of the Shares, when issued upon such conversion,
will be duly and validly issued, fully paid and non-assessable.
3.6 Authority for Agreement. The execution, delivery and performance
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by the Company of this Agreement and the Ancillary Agreements, the issuance and
delivery of the Note, and the consummation by the Company of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action. This Agreement and the Ancillary Agreements have been duly
executed and delivered by the Company and constitute valid and binding
obligations of the Company enforceable in accordance with their respective
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terms, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting the rights of
creditors generally, (ii) statutory or decisional law concerning recourse by
creditors to security in the absence of notice or hearing, and (iii) duties and
standards imposed on creditors and parties to contracts, including, without
limitation, requirements of good faith, reasonableness and fair dealing. The
execution of and performance of the transactions contemplated by this Agreement
and the Ancillary Agreements and compliance with their provisions by the Company
will not violate, conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under, or accelerate any
obligation under, or give rise to any right of termination of, its Certificate
of Incorporation or By-Laws (each as amended to date) or any indenture, lease,
agreement, obligation or other instrument to which the Company is a party or by
which it or any of its properties is bound, or any decree, judgment, order,
statute, rule or regulation applicable to the Company except insofar as such
violation, conflict or breach would not have a material adverse effect on the
Company.
3.7 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company
in connection with the execution and delivery of this Agreement, the offer,
issuance, sale and delivery of the Note, or the other transactions to be
consummated at the Closing, as contemplated by this Agreement or the Ancillary
Agreements, except such as shall have been made or obtained prior to and shall
be effective on and as of the Closing, and except where the failure to make or
obtain such would not have a material adverse effect on the Company's operations
or financial condition. Based on the representations made by the Purchaser in
Section 4 of this Agreement, the offer and sale of the Note and the Shares to
the Purchaser will be in compliance with applicable Federal and state securities
laws.
3.8 Litigation. There is no action, suit or proceeding, or
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governmental inquiry or investigation, pending, or, to the Company's knowledge,
any basis therefor or threat thereof, against the Company or affecting any of
its properties or assets or, to the Company's knowledge, against any officer or
director of the Company, which questions the validity or enforceability of this
Agreement or the agreements and transactions contemplated hereby or the right of
the Company to enter into this Agreement or the Ancillary Agreements, or which
would have a material adverse effect on the Company's operations or financial
condition, and, to the knowledge of the Company, no event has occurred and no
condition exists on the basis of which any such litigation, proceeding or
investigation might properly be instituted or commenced.
3.9 Financial Statements. The Company has furnished to the Purchaser
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a complete and correct copy of the unaudited balance sheet of the Company (the
"Balance Sheet") as at June 30, 1997 (the "Balance Sheet Date") and the related
pro forma statements of operations and cash flow for the six (6) months then
ended, compiled by the Company (collectively, the "Financial Statements"). The
Financial Statements are complete and correct, are in accordance with the books
and records of the Company and present fairly the financial condition and
results of operations of the Company, as at the dates and for the periods
indicated, and have been prepared in accordance with generally accepted
accounting principles consistently applied, except that the Financial Statements
have been prepared for the internal use of management and may not be in
accordance with generally accepted accounting principles
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because of the absence of footnotes normally contained therein and are subject
to normal year-end audit adjustments which in the aggregate will not be
material.
3.10 Absence of Liabilities. Except as disclosed in Exhibit C, the
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Company did not have, at the Balance Sheet Date, any liabilities of any type
which in the aggregate exceeded $25,000, whether absolute or contingent, which
were not fully reflected on the Balance Sheet, and, since the Balance Sheet
Date, the Company has not incurred or otherwise become subject to any such
liabilities or obligations except in the ordinary course of business.
3.11 Taxes. The amount shown on the Balance Sheet as provision for
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taxes is sufficient in all material respects for payment of all accrued and
unpaid Federal, state, county, local and foreign taxes (including penalties and
interest) for the period then ended and all prior periods. The Company has
filed or has obtained presently effective extensions with respect to all
Federal, state, county, local and foreign tax returns which are required to be
filed by it, such returns are true and correct and all taxes required to be paid
by the Company have been timely paid except those taxes which will not have a
material adverse effect on the business or financial condition of the Company.
No income tax returns of the Company have been audited by any taxing authority,
and no controversy with respect to taxes of any type is pending or, to the best
of the Company's knowledge, threatened. Neither the Company nor, to its
knowledge, any of its stockholders has ever filed (a) an election pursuant to
Section 1362 of the Internal Revenue Code of 1986, as amended (the "Code"), that
the Company be taxed as an S Corporation or (b) consent pursuant to Section
341(f) of the Code relating to collapsible corporations. The Company has never
received notice of any audit or of any proposed deficiencies from any taxing
authority. There are in effect no waivers of applicable statutes of limitations
with respect to any taxes owed by the Company for any year. No taxing authority
is now asserting or, to the knowledge of the Company, threatening to assert
against the Company any deficiency or claim for additional taxes or interest
thereon or penalties in connection therewith. The Company's net operating
losses for federal income tax purposes, as set forth in the Financial
Statements, are not subject to any limitations imposed by Section 382 of the
Code, and consummation of the transactions contemplated by this Agreement or by
any other agreement, understanding or commitment, contingent or otherwise, to
which the Company is a party or by which it is otherwise bound will not have the
effect of limiting the Company's ability to use such net operating losses in
full to offset such taxable income.
3.12 Property and Assets. The Company has good title to all of its
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properties and assets, including all properties and assets reflected in the
Balance Sheet, except those disposed of since the date thereof in the ordinary
course of business or that will not have a material adverse effect on the
Company, and none of such properties or assets is subject to any mortgage,
pledge, lien, security interest, lease, charge or encumbrance that will have a
material adverse effect on the Company, other than those the material terms of
which are described in the Balance Sheet or in Exhibit C.
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3.13 Intellectual Property. Except as set forth on Exhibit C:
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(a) The Company has exclusive ownership in all right, title and
interest to ("Owned Rights"), with the right to use, sell, license, dispose of,
and bring actions for infringement of, or has a valid license to use all
Intellectual Property Rights (as hereinafter
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defined) used in the conduct of its business as presently conducted and as
proposed to be conducted (the "Company Rights"), which Owned Rights are
exclusive to the Company and which Company Rights are sufficient in all material
respects for the conduct of its business as presently conducted.
(b) The business of the Company as presently conducted and the
manufacture, marketing, licensing, use and servicing of any products of the
Company, do not violate any agreements which the Company has with any third
party, infringe any copyright or trade secrets of any third parties, or to the
best knowledge of the Company, infringe any patent, trademark, or any other
Intellectual Property Rights (other than copyrights and trade secrets) of any
third parties.
(c) No claim is pending or, to the best knowledge of the
Company, threatened against the Company nor has the Company received any notice
or other claim from any person asserting that any of the Company's present or
contemplated activities infringe or may infringe any Intellectual Property
Rights of such person, and the Company is not aware of any infringement by any
other person of any rights of the Company under any Intellectual Property
Rights.
(d) The Company is not aware that any employee is obligated
under any contract (including any license, covenant or commitment of any
nature), or subject to any judgment, decree or order of any court or
administrative agency, that would materially conflict or interfere with (i) the
performance of such employee's duties as an officer, employee or director of the
Company, (ii) the use of such employee's best efforts to promote the interests
of the Company or (iii) the Company's business as conducted or proposed to be
conducted.
(e) As used herein, the term "Intellectual Property Rights"
shall mean all intellectual property rights, including, without limitation, all
of the registered rights set forth on Exhibit C and all patents, patent
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applications, patent rights, trademarks, trademark applications, trade names,
service marks, service xxxx applications, copyrights, copyright applications,
computer programs and other computer software, inventions, designs, samples,
specifications, schematics, know-how, trade secrets, proprietary processes and
formulae, all sources and object code, algorithms, architecture, structure,
display screens, layouts, development tools, promotional materials, customer
lists, supplier and dealer lists and marketing research, and all documentation
and media constituting, describing or relating to the foregoing, including
without limitation, manuals, memoranda and records. Exhibit C contains a list
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and brief description of all Intellectual Property Rights owned by or registered
in the name of the Company or of which the Company is the licensor or a licensee
of a material right or in which the Company has any material right and, in each
case, a brief description of the nature of the right.
3.14 Insurance. Except as set forth on Exhibit C, the Company
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maintains valid policies of workers' compensation insurance and of insurance
with respect to its properties and business of the kinds and in the amounts not
less than is customarily obtained by corporations of established reputation
engaged in the same or similar business and similarly situated. There is no
default under any such policy, nor, to the knowledge of the Company, has any
event occurred which with notice, lapse of time or both would constitute a
material default thereunder.
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3.15 Material Contracts and Obligations. Except as set forth on
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Exhibit C hereto (with true and correct copies delivered to the Purchaser) and
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except for the Ancillary Agreements, the Company is not a party or subject to or
bound by:
(a) any contract, lease or agreement creating any obligation of
the Company to pay to any third party $10,000 or more with respect to any single
such contract or agreement, except for purchase orders entered into in the
ordinary course of business;
(b) any contract or agreement for the sale, license, lease or
disposition of products by the Company in excess of $10,000;
(c) any contract containing covenants directly or explicitly
limiting the freedom of the Company to compete in any line of business or with
any person or entity;
(d) any license agreement (as licensor or licensee) other than
licenses to off-the-shelf software;
(e) any contract or agreement or the purchase of any leasehold
improvements, equipment or fixed assets for a price in excess of $10,000;
(f) any indenture, mortgage, promissory note, loan agreement,
guaranty or other agreement or commitment for borrowing in excess of $10,000 or
any pledge or security arrangement;
(g) any material joint venture, partnership, manufacturing,
development or supply agreement;
(h) any employment contracts, or agreements with officers,
directors, employees or stockholders of the Company or persons or organizations
related to or affiliated with any such persons;
(i) any stock redemption or purchase agreements or other
agreements affecting or relating to the capital stock of the Company, including
without limitation any agreement relating to anti-dilution rights, registration
rights, voting arrangements, operating covenants or similar provisions;
(j) any pension, profit sharing, retirement or stock option
plans;
(k) any royalty, dividend or similar arrangement based on the
sales volume of the Company;
(l) any acquisition, merger or similar agreement; or
(m) any other contract not executed in the ordinary course of
business.
All of such agreements and contracts are valid, binding and in full force
and effect, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting the rights of
creditors generally, (ii) statutory or decisional
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law concerning recourse by creditors to security in the absence of notice or
hearing, and (iii) duties and standards imposed on creditors and parties to
contracts, including, without limitation, requirements of good faith,
reasonableness and fair dealing. Neither the Company, nor, to the knowledge of
the Company, any other party is in material default under any of such agreements
or contracts (nor, to the knowledge of the Company, has any event occurred which
with notice, lapse of time or both would constitute a material default
thereunder), except to the extent that any such default would not have a
material adverse effect on the assets, liabilities, properties, business or
proposals of the Company, and the Company has not received notice of any alleged
default under any such contract or agreement.
3.16 Compliance. The Company has complied with all laws, regulations
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and orders applicable to its present and proposed business and has all permits
and licenses required thereby, except where the failure to so comply or obtain
would not have a material adverse effect on the Company's operations and
financial condition.
3.17 Absence of Changes. Since the Balance Sheet Date, there has
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been no material adverse change in the condition, financial or otherwise, net
worth or results of operations of the Company, other than changes occurring in
the ordinary course of business which changes have not, individually or in the
aggregate, had a materially adverse effect on the business, prospects,
properties or condition, financial or otherwise, of the Company.
3.18 Employees. All current or former employees of the Company and
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each of the Company's consultants and independent contractors whose
responsibilities require access to confidential or proprietary information of
the Company have executed and delivered nondisclosure and assignment of
invention agreements with Purchaser, and all of such agreements are in full
force and effect with respect to such nondisclosure and assignment of invention
provisions. To the knowledge of the Company, none of such employees,
consultants or contractors is in violation or breach of any agreement or
arrangement with former or present employers relating to proprietary information
or assignment of inventions. None of the employees of the Company is
represented by any labor union, and, to the best of the Company's knowledge,
there is no labor strike or other labor trouble pending or threatened with
respect to the Company (including, without limitation, any organizational
drive).
3.19 ERISA. The Company does not have or otherwise contribute to or
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participate in any employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, other than a medical benefit plan with respect to
which the Company has made all required contributions and has complied with all
applicable laws, if any.
3.20 Books and Records. The minute books of the Company contain
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complete and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock
ledger of the Company is complete and reflects all issuances, transfers,
repurchases and cancellations of shares of capital stock of the Company.
3.21 Transactions with Affiliates. Except as set forth on Exhibit C
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or contemplated by the Series A Agreements, there are no loans, licenses,
leases, guarantees, contracts, transactions, understandings or other
arrangements of any nature between the
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Company and any officer, director or five percent (5%) stockholder of the
Company or any family member or affiliate of any of the foregoing persons.
3.22 Disclosure. The representations and warranties made or
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contained in this Agreement, the schedules and exhibits hereto and the
certificates and statements executed or delivered in connection herewith, do not
and shall not contain any untrue statement of a material fact and do not and
shall not omit to sate any fact required to be stated therein or necessary in
order to make such representations, warranties or other material not misleading
in light of the circumstances in which they were made or delivered.
4. Representations of the Purchaser. The Purchaser represents and
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warrants to the Company as follows:
4.1 Investment. The Purchaser is acquiring the Note, the Shares into
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which the Note may be converted, and the shares of Common Stock into which the
Shares may be converted, 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 and the Exhibits hereto, the Purchaser has no
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof.
4.2 Authority. The Purchaser has full power and authority to enter
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into and to perform its obligations under this Agreement in accordance with
their terms. The Purchaser has not been organized, reorganized or recapitalized
specifically for the purpose of investing in the Company.
4.3 Experience. The Purchaser has carefully reviewed the
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representations concerning the Company contained in this Agreement, and has made
detailed inquiry concerning the Company, its business and its personnel; the
officers of the Company have made available to the Purchaser any and all written
information which it has requested and have answered to the Purchaser's
satisfaction all inquiries made by the Purchaser; and the Purchaser has
sufficient knowledge and experience in investing in companies similar to the
Company so as to be able to evaluate the risks and merits of its investment in
the Company and is able financially to bear the risks thereof.
5. Conditions to the Obligation of the Purchaser. At the Closing, the
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Company shall deliver or cause to be delivered to the Purchaser the agreements,
instruments and documents set forth below. The Purchaser shall not be obligated
to proceed with the Closing unless all of the following conditions have been
fulfilled at or prior to the Closing:
5.1 Other Agreements.
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(a) The Amended and Restated Registration Rights Agreement
attached hereto as Exhibit D (the "Registration Rights Amendment") shall have
---------
been executed and delivered by the Company.
(b) The Security Agreement attached hereto as Exhibit E (the
---------
"Security Agreement") shall have been executed and delivered by the Company.
-10-
5.2 Certificates and Documents. If requested by the Purchaser, the
--------------------------
Company shall have delivered to the Purchaser:
(a) The Certificate of Incorporation of the Company, as amended
and in effect as of the Closing Date (including the Certificate of Amendment),
certified by the Secretary of State of the State of Delaware;
(b) Certificates, as of the most recent practicable dates, as to
the corporate good standing of the Company issued by the Secretary of State of
the State of Delaware and the Secretary of the State of the Commonwealth of
Massachusetts;
(c) By-laws of the Company, certified by its Secretary or
Assistant Secretary as of the Closing Date;
(d) Resolutions of the Board of Directors of the Company,
authorizing and approving all matters in connection with this Agreement and the
transactions contemplated hereby, certified by the Secretary or Assistant
Secretary of the Company as of the Closing Date; and
(e) Certificate, as of the Closing Date, of an officer of the
Company certifying as to the truth and accuracy of the representations and
warranties of the Company.
5.3 Other Matters. All corporate and other proceedings in connection
-------------
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Purchaser, and the Purchaser shall have received all
such counterpart originals or certified or other copies of such documents as it
may reasonably request.
6. Condition to the Obligation of the Company. At the Closing, the
------------------------------------------
Purchaser shall deliver or cause to be delivered to the Company the agreements,
instruments and documents set forth below. The Company shall not be obligated
to proceed with the Closing unless all of the following conditions have been
fulfilled at or prior to the Closing:
6.1 Other Agreements. The Registration Rights Amendment shall have
----------------
been executed and delivered by the Purchaser.
6.2 Other Matters. All corporate and other proceedings in connection
-------------
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Company, and the Company shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
7. Covenants of the Company.
------------------------
7.1 Financial Statements and Other Information.
------------------------------------------
(a) The Company shall deliver to the Purchaser:
-11-
(i) within 90 days after the end of each fiscal year of
the Company, an audited balance sheet of the Company as at the end of such year
and audited statements of income and of cash flows of the Company for such year,
certified by certified public accountants of established national reputation
selected by the Company, and prepared in accordance with generally accepted
accounting principles; and
(ii) within 45 days after the end of each fiscal quarter of
the Company (other than the fourth fiscal quarter), an unaudited balance sheet
of the Company as at the end of such quarter, and unaudited statements of income
and of cash flows of the Company for such fiscal quarter and for the current
fiscal year to the end of such fiscal quarter.
(b) The foregoing financial statements shall be prepared on a
consolidated basis if the Company then has any subsidiaries. The financial
statements delivered pursuant to clause (ii) of paragraph (a) shall be
accompanied by a certificate of the chief financial officer of the Company
stating that such statements have been prepared in accordance with generally
accepted accounting principles consistently applied (except as noted) and fairly
present the financial condition and results of operations of the Company at the
date thereof and for the periods covered thereby, except that such financial
statements will have been prepared for the internal use of management and may
not be in accordance with generally accepted accounting principles because of
the absence of footnotes normally contained therein and are subject to normal
year-end audit adjustments which in the aggregate will not be material.
(c) The annual budgetary information for each upcoming fiscal
year will be presented at a Board of Directors' meeting at least 30 days prior
to each fiscal year-end of the Company and will be subject to approval by the
Board of Directors. Such budgetary information shall include a budget for the
upcoming fiscal year and the succeeding one year describing in reasonable
detail, at a minimum, assumptions with respect to revenues, key operating
expenses and capital expenditures and financings. Any material deviations from
the budget for any fiscal year will be subject to prior approval by the Board of
Directors.
7.2 Indemnification and Insurance. For so long as the Note or any of
-----------------------------
the Shares remain outstanding, (i) the Certificate of Incorporation or By-Laws
of the Company will at all times during which any person elected solely by the
holders of Series A Preferred serves as director of the Company provide for
indemnification of the directors and limitations on the liability of the
directors to the fullest extent permitted under applicable state law, and (ii)
the Company will use its best efforts to obtain and maintain on reasonable
business terms directors and officers' liability insurance coverage of at least
$5,000,000 per occurrence.
7.3 Material Adverse Changes. The Company will monitor and promptly
------------------------
advise the Purchaser of any event which represents a material adverse change in
the condition or business, financial or otherwise, of the Company, and of each
suit or proceeding commenced or threatened against the Company which, if
adversely determined, in the reasonable judgment of the Company, could have a
material adverse effect on the Company or its financial conditions, business or
prospects.
7.4 Negative Covenants. So long as the Note or any Shares are
------------------
outstanding, the Company shall not, without the prior written consent of the
holders of not less than a
-12-
majority of such outstanding Shares (which for this purpose shall include any
Shares into which the Note may be converted):
(a) Declare or pay any dividends or make any distribution of
cash, property or securities with respect to shares of its Common Stock, Series
A Preferred Stock or Series B Preferred Stock, other than dividends payable
solely in Common Stock;
(b) Enter into any transaction, agreement or arrangement with
any 5% stockholder, officer or director of the Company or any persons or
entities who are members of the immediate family of, or are controlled by or are
otherwise affiliates (as defined in the Securities Act) of, any of the foregoing
persons or entitles, except transactions (i) in the ordinary course of business,
(ii) under the terms of an employee stock or option plan approved by the Board
of Directors, or (iii) pursuant to the inter-company clearing account that has
been established between the Company and the Purchaser (provided, however, that
if any amounts owed by the Company to the Purchaser pursuant to such account are
not paid in full by the Company within 30 days after the end of the calendar
month in which such funds were first advanced to the Company, no additional
advances shall be accepted by the Company other than pursuant to this Section
7.4 without the exception provided in this clause (b));
(c) Grant any options, warrants or other similar rights to
purchase capital stock of the Company (other than options to purchase up to
1,500,000 shares of Common Stock that may be granted to employees, officers or
directors of, or consultants or advisors to, the Company pursuant to any stock
or option plan approved by the Board of Directors).
(d) Increase the number of members of the Board of Directors
above seven (7);
(e) Redeem, purchase or otherwise acquire for consideration any
shares of capital stock of the Company (other than any shares redeemed upon
termination of an employee's employment pursuant to a stock restriction or
similar agreement approved by the Board of Directors or its designee or redeemed
pursuant to the provisions of the Certificate of Amendment);
(f) (i) Merge with or into or consolidate with any Competitor,
(ii) sell, lease, or otherwise dispose of all or substantially all of its
properties or assets to any Competitor, or (iii) sell or issue any of its
securities representing greater than 5% of the capital stock of the Company on a
fully diluted basis on the date of such sale or issuance to any Competitor. For
purposes of this paragraph (f), "Competitor" means any of the following
companies: CompuServe, Prodigy, The Xxxx Disney Company, Yahoo, Excite,
Infoseek, Citysearch, Cityscape, Big Book, Netscape, Microsoft, AT&T, Sprint,
MCI, Ameritech, Xxxx Atlantic, NYNEX, BellSouth, Pacific Telesis, SBC
Communications, US West, GTE, New York Times, Tribune, Washington Post Company,
News Center Network; Time Warner, Times Mirror, TCI or Xxxxxx-Xxxxx; or
(g) Issue any shares of its capital stock which are senior to
the Series A Preferred with respect to dividends, liquidation, redemptions,
voting, or otherwise.
-13-
7.5 Reservation of Stock. The Company shall reserve and maintain a
--------------------
sufficient number of shares of (i) Common Stock to satisfy the conversion rights
of holders of Series C Preferred and (ii) Series C Preferred to satisfy the
rights to purchase shares of Series C Preferred pursuant to the Note.
7.6 Nondisclosure and Assignment Agreements. The Company shall use
---------------------------------------
its reasonable best efforts as soon as practicable following the Closing to
obtain from each of its employees and consultants and independent contractors
whose responsibilities require access to confidential or proprietary information
of the Company, nondisclosure and assignment of invention agreements
substantially in the form of Exhibit C.
---------
7.7 Termination of Covenants. The covenants of the Company contained
------------------------
in Sections 7.1 and 7.3 shall terminate, and be of no further force or effect,
upon the date the Company has a class of securities registered under the
Securities Exchange Act of 1934, as amended.
8. Transfer of Shares.
------------------
8.1 Restricted Shares. "Restricted Shares" means (i) the Note, (ii)
-----------------
the Shares, (iii) the shares of Common Stock issued or issuable upon conversion
of the Shares, and (iv) any other shares of capital stock of the Company issued
in respect of such shares (as a result of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events); provided, however,
-------- -------
that shares of Common Stock which are Restricted Shares shall cease to be
Restricted Shares (i) upon any sale pursuant to (a) the Registration Rights
Amendment, (b) an effective registration statement filed with the Securities and
Exchange Commission under the Securities Act registering such Restricted Shares,
(c) Section 4(1) of the Securities Act or (d) Rule 144 under the Securities Act
or (ii) at such time as they become eligible for sale under Rule 144(k) under
the Securities Act.
8.2 Requirements for Transfer. Restricted Shares shall not be sold
-------------------------
or transferred unless either (i) they first shall have been registered under the
Securities Act, or (ii) the Company first shall have been furnished with an
opinion of legal counsel, reasonably satisfactory to the Company, to the effect
that such sale or transfer is exempt from the registration requirements of the
Securities Act.
8.3 Legend. Each certificate representing Restricted Shares shall
------
bear a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged
or hypothecated unless and until the shares are registered
under the Act or an opinion of counsel reasonably
satisfactory to the Company is obtained to the effect that
the registration is not required."
The foregoing legend shall be removed from the certificates representing any
Restricted Shares, at the request of the holder thereof, at such time as they
cease to be Restricted Shares as provided in Section 8.1.
-14-
8.4 Rule 144A Information. The Company shall, at all times during
---------------------
which it is neither subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), nor
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, upon
the written request of the Purchaser, provide in writing to the Purchaser and to
any prospective transferee of any Restricted Shares of the Purchaser the
information concerning the Company described in Rule 144A(d)(4) under the
Securities Act ("Rule 144A Information"). The Company's obligations under this
Section 8.4 shall at all times be contingent upon receipt from the prospective
transferee of Restricted Shares of a written agreement to take all reasonable
precautions to safeguard the Rule 144A Information from disclosure to anyone
other than persons who will assist such transferee in evaluating the purchase of
any Restricted Shares.
9. Miscellaneous.
-------------
9.1 Successors and Assigns. This Agreement, and the rights and
----------------------
obligations of the Purchaser hereunder, may not be assigned by the Purchaser to
any person or entity, provided, however, that the rights and obligations of the
Purchaser under Section 7 and 8 above may be assigned to any person to whom any
Note or Shares are transferred in compliance with the provisions of this
Agreement and the other agreements provided for herein.
9.2 Survival of Representations and Warranties. All agreements,
------------------------------------------
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the closing of the transactions contemplated
hereby.
9.3 Notices. All notices, requests, consents, and other
-------
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, Xxxxxxxxxxxxx
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
and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxx, Esq.
If to the Purchaser, at 000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: President, or at such other address or addresses
as may have been furnished in writing by the Purchaser to the Company, with a
copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx, Esq.
Notices provided in accordance with this Section 9.4 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.
9.4 Brokers. The Company and the Purchaser (i) represents and
-------
warrants to the other party hereto that it has retained no finder or broker in
connection with the transactions contemplated by this Agreement, and (ii) will
indemnify and save the other parties 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
-15-
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
9.5 Entire Agreement. This Agreement and the Ancillary Agreements
----------------
embody the entire agreement 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.
9.6 Amendments and Waivers. Except as otherwise expressly set forth
----------------------
in this Agreement, any term of this Agreement may be amended 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 shares of Common Stock issued
or issuable upon conversion of the Shares into which the Note is converted or
convertible. Any amendment or waiver effected in accordance with this Section
9.6 shall be binding upon each holder of any Note, any Shares (including shares
of Common Stock into which such Shares have been converted), each future holder
of all such securities and the Company. 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.
9.7 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
9.8 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.
9.9 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.
9.10 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware.
9.11 Costs. The prevailing party in any dispute arising out of or
-----
relating to this Agreement shall be entitled to reasonable attorneys' fees and
costs incurred in defending or pursuing such dispute.
9.12 Expenses. The Company shall pay all costs and expenses of the
--------
Company and the Purchaser in connection with the transactions contemplated
hereby.
9.13 Acknowledgement and Waiver. The parties hereto acknowledge and
--------------------------
agree that, except as contemplated by Section 1.2, the Purchaser is under no
obligation whatsoever to advance any amounts of the Company. The Company hereby
waives any and all claims it may have, including without limitation claims under
any agreement or instrument and under any applicable law, rule or regulation,
based upon any determination by the Purchaser not to advance any amounts to the
Company.
-16-
9.14 Facsimile Signature. This Agreement may be executed by
-------------------
facsimile signatures.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ Xxxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxxx XxXxxxxx
Title: President
PURCHASER:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
-17-
AMENDMENT TO
CONVERTIBLE SECURED NOTE PURCHASE AGREEMENT
-------------------------------------------
This Amendment dated as of February 20,1998, is entered into by and between
Banyan Systems Incorporated, a Massachusetts corporation (the "Purchaser"), and
Switchboard Incorporated, a Delaware corporation (the "Company"), and amends the
Convertible Secured Note Purchase Agreement dated as of August 29, 1997 by and
between the Purchaser and the Company (the "Agreement"). Capitalized terms used
but not defined herein shall have the respective meanings ascribed to such terms
in the Agreement.
The Agreement is hereby amended as follows:
1. The maximum aggregate principal amount of the Note is increased from
$3,000,000.00 to $7,000,000.00. All references in the Agreement to such
$3,000,000.00 amount are revised to $7,000,000.00.
2. The Note for the maximum aggregate principal amount of $3,000,000.00
previously issued and sold by the Company to the Purchaser pursuant to the
Agreement shall be cancelled, and the Company shall issue and sell to the
Purchaser a new note (the "Replacement Note") in the aggregate principal amount
of $7,000,000.00. The terms of the Replacement Note shall in all other respects
be identical to the terms of the Note (including an identical effective date).
The loans made through the date hereof that are referenced on Schedule I of the
Note shall be referenced on Schedule I of the Replacement Note. All references
in the Agreement to the "Note" shall be deemed to be references to the
Replacement Note.
3. As soon as practicable following the date hereof, the Company will
file with the Secretary of State of the State of Delaware a Certificate of
Amendment to Certificate of Incorporation substantially in the form attached
hereto as Attachment A (the "New Certificate of Amendment"). All references in
------------
the Agreement to the "Certificate of Amendment" shall be deemed to be references
to the New Certificate of Amendment.
4. The Company hereby represents and warrants to the Purchaser that,
except as set forth in Attachment B hereto, the representations and warranties
------------
of the Company set forth in Section 3 of the Agreement are true and correct in
all respects on the date hereof as if made on the date hereof. The first
sentence of Section 3.9 of the Agreement is amended to refer to the balance
sheet as of December 31, 1997 and the statements of operations and cash flows
for the twelve months then ended.
5. The Purchaser hereby represents and warrants to the Purchaser that the
representations and warranties of the Purchaser set forth in Section 4 of the
Agreement are true and correct in all respects on the date hereof as if made on
the date hereof.
6. As a condition to the effectiveness hereof, the Company shall deliver
to the Purchaser (a) the Amended and Restated Registration Rights Agreement
attached hereto as Exhibit C executed by each of the parties thereto (other than
---------
the Purchaser). and (b) the Amendment to Security Agreement attached hereto as
Attachment D executed by the Company.
------------
Any reference in the Agreement to the "Ancillary Agreements" shall be deemed to
refer to the agreements referenced in this Paragraph 6.
7. Except as set forth above, all provisions of the Agreement shall
remain in full force and effect. Any rights either party hereto may have as a
result of a breach of, or misrepresentation contained in, the Agreement prior to
this Amendment shall remain in full force and effect and shall not be deemed to
be waived as a result of the execution and delivery of this Amendment.
EXECUTED as of the date first set forth above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ Xxxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxxx XxXxxxxx
---------------------------
Title: President
--------------------------
PURCHASER:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Chief Executive Officer
--------------------------
-2-
AMENDMENT TO
CONVERTIBLE SECURED NOTE PURCHASE AGREEMENT
-------------------------------------------
This Amendment dated as of May 3, 1999, is entered into by and between
Banyan Systems Incorporated, a Massachusetts corporation (the "Purchaser"), and
Switchboard Incorporated, a Delaware corporation (the "Company"), and amends the
Convertible Secured Note Purchase Agreement dated as of August 29, 1997 by and
between the Purchaser and the Company, as amended as of February 20, 1998 (the
"Agreement"). Capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Agreement.
The Agreement is hereby amended as follows:
1. The Note for the maximum aggregate principal amount of $7,000,000
previously issued and sold by the Company to the Purchaser pursuant to the
Agreement shall be cancelled, and the Company shall issue and sell to the
Purchaser (i) a new note in the aggregate principal amount of $10,000,000, which
is convertible into Series C Convertible Preferred Stock of the Company at an
initial conversion price of $4.00 per share (the "Series C Replacement Note"),
and (ii) a new note in the aggregate principal amount of $5,000,000, which is
convertible into Series D Convertible Preferred Stock of the Company at an
initial conversion price of $7.50 per share (the "Series D Note"). The terms of
the Series C Replacement Note shall in all other respects be identical to the
terms of the Note (including an identical effective date). The Series D Note
shall be in the form attached hereto as Attachment A. The loans made through
------------
the date hereof that are referenced on Schedule I of the Note shall be
referenced on Schedule I of the Series C Replacement Note. All future loans up
to and including the aggregate principal amount of $10,000,000 shall be made
under the Series C Replacement Note. Any loans beyond such $10,000,000 amount
shall be made under the Series D Note. All references in the Agreement to the
"Note" shall be deemed to be references to the Series C Replacement Note and the
Series D Note. All references in the Agreement to "$7,000,000" shall be to
"$10,000,000" with respect to the Series C Replacement Note and to "$5,000,000"
with respect to the Series D Note.
2. As soon as practicable following the date hereof, the Company will
file with the Secretary of State of the State of Delaware a Certificate of
Amendment to Certificate of Incorporation substantially in the form attached
hereto as Attachment B (the "New Certificate of Amendment"). All references in
------------
the Agreement to the "Certificate of Amendment" shall be deemed to be references
to the New Certificate of Amendment.
3. As a condition to the effectiveness hereof, the Company shall deliver
to the Purchaser the Amendment to Security Agreement attached hereto as
Attachment C executed by the Company. Any reference in the Agreement to the
------------
"Ancillary Agreements" shall be deemed to refer to the agreements referenced in
this Paragraph 3.
4. Except as set forth above, all provisions of the Agreement shall
remain in full force and effect. Any rights either party hereto may have as a
result of a breach of, or misrepresentation contained in, the Agreement prior to
this Amendment shall remain in full force
and effect and shall not be deemed to be waived as a result of the execution and
delivery of this Amendment.
EXECUTED as of the date first set forth above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
---------------------------
Title: President
--------------------------
PURCHASER:
BANYAN SYSTEMS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President and CFO
--------------------------
-2-
