Exhibit 10.8
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") dated as of June 30,
1999 is entered into by and between Switchboard Incorporated, a Delaware
corporation (the "Company"), and CBS Corporation, a Pennsylvania corporation
(the "Purchaser").
Recitals
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WHEREAS, the Company and the Purchaser have entered into a Common Stock and
Warrant Purchase Agreement of even date herewith (the "Purchase Agreement"); and
WHEREAS, the Company and the Purchaser desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of
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the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Initial Public Offering" means the initial underwritten public
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offering of shares of Common Stock pursuant to an effective Registration
Statement.
"Other Holders" shall have the meaning set forth in Section 2.1(c).
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"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 2.4.
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"Registrable Shares" means (i) the Shares and any shares of Common
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Stock issued or issuable upon exercise of the Warrant, (ii) any shares of Common
Stock acquired by the Purchaser pursuant to the Participation Agreement dated
the date hereof between the Purchaser and the Company, and (iii) any other
shares of Common Stock issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events); provided, however, that shares of Common Stock that are Registrable
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Shares shall cease to be Registrable Shares upon (i) any sale pursuant to a
Registration Statement or Rule 144 under the Securities Act, (ii) any
eligibility for sale pursuant to Rule 144(k) under the Securities Act or (iii)
any sale in any manner to a person or entity which, by virtue of Section 3 of
this Agreement, is not entitled to the rights provided by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
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successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any Stockholder owning Registrable Shares
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included in a Registration Statement.
"Shares" shall have the meaning specified in Section 1 of the Purchase
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Agreement.
"Stockholders" means the Purchaser and any persons or entities to whom
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the rights granted under this Agreement are transferred by the Purchaser, its
successors or assigns pursuant to Section 3 hereof.
"Warrant" shall have the meaning specified in Section 1 of the
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Purchase Agreement.
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2. Registration Rights
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2.1 Required Registrations.
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(a) At any time after the first anniversary of the closing of
the Initial Public Offering, the Purchaser may request, in writing, that the
Company effect the registration on Form S-1 (or any successor form) or, if then
available to the Company, Form S-3 (or any successor form) of Registrable Shares
owned by the Purchaser having an aggregate value of at least $10,000,000 (based
on the then current market price or fair value).
(b) Upon receipt of any request for registration pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all other Stockholders. Such Stockholders shall have the right,
by giving written notice to the Company within 10 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Stockholders may request in such notice of
election, subject in the case of an underwritten offering to the approval of the
managing underwriter as provided in Section 2.1(c) below. Thereupon, the Company
shall, as expeditiously as possible, use its reasonable best efforts to effect
the registration on an appropriate registration form of all Registrable Shares
which the Company has been requested to so register.
(c) If the Purchaser intends to distribute the Registrable
Shares covered by its request by means of an underwriting, it shall so advise
the Company as a part of its request made pursuant to Section 2.1(a), and the
Company shall include such information in its written notice referred to in
Section 2.1(b). The right of any other Stockholder to include its Registrable
Shares in such registration pursuant to Section 2.1(a) shall be conditioned upon
such other Stockholder's participation in such underwriting on the terms set
forth herein. If other holders of securities of the Company who are entitled, by
contract with the Company, to have securities included in such a registration
(the "Other Holders") request such inclusion, the Company may include the
securities of such Other Holders in such registration and underwriting on the
terms set forth herein. The Company shall (together with all Stockholders and
Other Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form (including,
without limitation, customary indemnification and contribution provisions on the
part of the Company) with the managing underwriter. Notwithstanding any other
provision of this Section 2.1(c), if the managing underwriter advises the
Company in writing that the inclusion of all shares requested to be registered
would adversely affect the offering, and if a limitation of the number of shares
is required, the number of shares that may be included in such registration and
underwriting shall, except as otherwise provided in any contract to which the
Company is a party, be allocated among all holders of
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Registrable Shares and Other Holders requesting registration in proportion, as
nearly as practicable, to the respective number of shares held by them at the
time of the request for registration made pursuant to Section 2.1(a). If any
holder of Registrable Shares or Other Holder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
and the securities so withdrawn shall also be withdrawn from registration. If
the managing underwriter has not limited the number of Registrable Shares or
other securities to be underwritten, the Company may include securities for its
own account in such registration if the managing underwriter so agrees and if
the number of Registrable Shares and other securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
(d) The Company shall have the right to select the managing
underwriter(s) for any underwritten offering requested pursuant to Section
2.1(a), subject to the approval of the Purchaser, which approval will not be
unreasonably withheld.
(e) The Company shall not be required to effect more than two
(2) registrations pursuant to Section 2.1(a). In addition, the Company shall not
be required to effect any registration within six months after the effective
date of any other Registration Statement of the Company. For purposes of this
Section 2.1(e), a Registration Statement shall not be counted until such time as
such Registration Statement has been declared effective by the Commission
(unless the Purchaser withdraws its request for such registration (other than as
a result of material information concerning the business or financial condition
of the Company which is first made known to the Purchaser after the date on
which such registration was requested) and elect not to pay the Registration
Expenses therefor pursuant to Section 2.4). In the event the Purchaser is, as a
result of the cut-back provisions in Section 2.1(c), prohibited from selling at
least 50% of the Registrable Shares with respect to which it requested
registration, then such registration shall not count as a registration under
this Section 2.1(e).
(f) If at the time of any request to register Registrable Shares
by the Purchaser pursuant to this Section 2.1, the Company is engaged or has
plans to engage in a registered public offering or is engaged in any other
activity which, in the good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration, then the
Company, upon furnishing a certificate signed by an executive officer or the
Chairman of the Board of the Company stating that the Board has made the
foregoing determination, may at its option direct that such request be delayed
for a period not in excess of 75 days from the date of such request;
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provided, however that the Company may not utilize this right more than twice in
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any twelve month period.
2.2 Incidental Registration.
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(a) Whenever the Company proposes to file a Registration
Statement (other than a Registration Statement filed pursuant to Section 2.1 and
a Registration Statement covering shares to be sold solely for the account of
Other Holders in which the Company is contractually prohibited from including
Registrable Shares) at any time and from time to time, it will, prior to such
filing, give written notice to all Stockholders of its intention to do so;
provided, that no such notice need be given if no Registrable Shares are to be
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included therein as a result of a determination of the managing underwriter
pursuant to Section 2.2(b). Upon the written request of a Stockholder or
Stockholders given within 10 days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Stockholder or Stockholders to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder or Stockholders;
provided that the Company shall have the right to postpone or withdraw any
registration effected pursuant to this Section 2.2 without obligation to any
Stockholder.
(b) If the registration for which the Company gives notice
pursuant to Section 2.2(a) is a registered public offering involving an
underwriting, the Company shall so advise the Stockholders as a part of the
written notice given pursuant to Section 2.2(a). In such event, the right of any
Stockholder to include its Registrable Shares in such registration pursuant to
Section 2.2 shall be conditioned upon such Stockholder's participation in such
underwriting on the terms set forth herein. All Stockholders proposing to
distribute their securities through such underwriting shall (together with the
Company and Other Holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for the underwriting by the Company.
Notwithstanding any other provision of this Section 2.2, if the managing
underwriter determines that the inclusion of all shares requested to be
registered would adversely affect the offering, the Company may limit the number
of Registrable Shares to be included in the registration and underwriting. The
Company shall so advise all holders of Registrable Shares requesting
registration, and the number of shares that are entitled to be included in the
registration and underwriting shall be allocated in the following manner. The
number of shares that may be included in such registration and underwriting
shall, except as otherwise required in any contract to which the Company is a
party, be allocated among all Stockholders and Other Holders requesting
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registration in proportion, as nearly as practicable, to the respective number
of shares of Common Stock (on an as-converted basis) which they held at the time
the Company gives the notice specified in Section 2.2(a). If any Stockholder or
Other Holder would thus be entitled to include more securities than such holder
requested to be registered, the excess shall be allocated among other requesting
Stockholders and Other Holders pro rata in the manner described in the preceding
sentence. If any holder of Registrable Shares or Other Holder disapproves of the
terms of any such underwriting, such person may elect to withdraw therefrom by
written notice to the Company, and any Registrable Shares or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
2.3 Registration Procedures.
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(a) If and whenever the Company is required by the provisions of
this Agreement to use its reasonable best efforts to effect the registration of
any Registrable Shares under the Securities Act, the Company shall:
(i) with respect to a registration under Section 2.1
above, (1) file with the Commission a Registration Statement with respect to
such Registrable Shares as soon as practicable (but in any event within 60 days
after receipt of the request under Section 2, unless the filing of such
registration statement will require the preparation of financial statements that
have not been prepared as of the date of the receipt of the request, in which
case the filing will be made within 90 days after receipt of the request) and
(2) use its reasonable best efforts to cause that Registration Statement to
become effective as soon as possible;
(ii) with respect to a registration under Section 2.1
above, as expeditiously as reasonably possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to comply
with the provisions of the Securities Act (including the anti-fraud provisions
thereof) and to keep the Registration Statement effective for 120 days from the
effective date or such lesser period until all such Registrable Shares are sold;
(iii) as expeditiously as reasonably possible furnish to
each Selling Stockholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
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(iv) as expeditiously as reasonably possible use its
reasonable best efforts to register or qualify the Registrable Shares covered by
the Registration Statement under the securities or Blue Sky laws of such states
as the Selling Stockholders shall reasonably request; provided, however, that
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the Company shall not be required in connection with this paragraph (iv) to
qualify as a foreign corporation or execute a general consent to service of
process in any jurisdiction;
(v) as expeditiously as reasonably possible, cause all
such Registrable Shares to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed;
(vi) promptly provide a transfer agent and registrar for
all such Registrable Shares not later than the effective date of such
registration statement;
(vii) notify each Selling Stockholder, reasonably promptly
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any Prospectus forming a part
of such Registration Statement has been filed; and
(viii) notify each seller of such Registrable Shares of any
request by the Commission for the amending or supplementing of such Registration
Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall reasonably promptly
notify the Selling Stockholders and, if requested, the Selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall reasonably promptly provide the
Selling Stockholders with revised Prospectuses and, following receipt of the
revised Prospectuses, the Selling Stockholders shall be free to resume making
offers of the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall notify all Selling Stockholders
in writing to such effect, and, upon receipt of such notice, each such Selling
Stockholder shall immediately discontinue any sales of Registrable Shares
pursuant to such Registration Statement until such Selling Stockholder has
received copies of a supplemented or amended Prospectus or until such Selling
Stockholder is advised in writing by the Company that the then current
Prospectus may be used and has received copies of any additional or
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supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company, as expeditiously as reasonably possible, shall
advise the Selling Stockholders that use of the then current Prospectus may be
resumed or deliver copies of a supplemented or amended Prospectus.
2.4 Allocation of Expenses. The Company will pay all Registration
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Expenses for all registrations under this Agreement; provided, however, that if
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a registration under Section 2.1 is withdrawn at the request of the Purchaser
(other than as a result of information concerning the business or financial
condition of the Company which is first made known to the Purchaser after the
date on which such registration was requested or pursuant to the final sentence
of Section 2.1(e)) and if the Purchaser elects not to have such registration
counted as a registration requested under Section 2.1, the Purchaser shall pay
the Registration Expenses of such registration. For purposes of this Section,
the term "Registration Expenses" shall mean all expenses incurred by the Company
in complying with this Agreement, including, without limitation, all
registration and filing fees, Nasdaq and exchange listing fees, printing
expenses, fees and expenses of counsel for the Company, compensation of the
employees of the Company and the reasonable fees and expenses of one counsel
selected by the Selling Stockholders to represent the Selling Stockholders,
state Blue Sky fees and expenses, and the expense of any special audits incident
to or required by any such registration, but excluding underwriting discounts,
selling commissions and the fees and expenses of Selling Stockholders' own
counsel (other than the counsel selected to represent all Selling Stockholders).
2.5 Indemnification and Contribution.
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(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the seller of such Registrable Shares and each of
its officers, directors, employees and partners, each underwriter of such
Registrable Shares, and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company
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will reimburse such seller, underwriter and each such controlling person on at
least a quarterly basis for any legal or any other expenses reasonably incurred
by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
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extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its director s and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the indemnity contained in this section
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shall not apply to amounts paid in settlement of any such claim, loss, damage,
liability or action if such action is effected without the consent of the
applicable Stockholder (which consent shall not be unreasonably withheld);
provided, further, that the obligations of a Stockholder hereunder shall be
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limited to an amount equal to the net proceeds to such Stockholder of
Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit
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the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
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Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
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give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section except to the extent that the Indemnifying Party
is adversely affected by such failure. The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnifying
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Party shall pay such reasonable expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding; provided further
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that in no event shall the Indemnifying Party be required to pay the expenses of
more than one law firm per jurisdiction as counsel for the Indemnified Party.
The Indemnifying Party also shall be responsible for the reasonable expenses of
such defense if the Indemnifying Party does not elect to assume such defense.
No Indemnifying Party, in the defense of any such claim or litigation shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.5 is
due in accordance with its terms but for any reason is held to be unavailable to
an Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Stockholders on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Stockholders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Stockholders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and equitable
if contribution pursuant to this Section 2.5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to
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above. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In the
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event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its reasonable best
efforts to cause its legal counsel to render customary opinions to the
underwriters with respect to the Registration Statement; and (c) use its
reasonable best efforts to cause its independent public accounting firm to issue
customary "cold comfort letters" to the underwriters with respect to the
Registration Statement.
2.7 Information by Holder. Each holder of Registrable Shares
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included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
2.8 "Lock-up" Agreement; Confidentiality of Notices.
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(a) The Purchaser and each Stockholder, if requested by the
managing underwriter of an underwritten public offering by the Company of Common
Stock, hereby agrees that it shall not sell or otherwise transfer or dispose of
any Registrable Shares or other securities of the Company held by such Purchaser
or Stockholder for a period of 180 days following the effective date of a
Registration Statement. In addition, the Purchaser and each Stockholder shall
execute such other customary lock-up agreements as may be requested by such
managing underwriters.
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(b) The Company may impose stop-transfer instructions with
respect to the Registrable Shares or other securities subject to the foregoing
restrictions until the end of the applicable lock-up period.
(c) Any Stockholder receiving any written notice from the
Company regarding the Company's plans to file a Registration Statement shall
treat such notice confidentially and shall not disclose such information to any
person other than as necessary to exercise its rights under this Agreement.
2.9 Rule 144 Requirements. After the earliest of (i) the closing of
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the sale of securities of the Company pursuant to a Registration Statement or
(ii) the registration by the Company of a class of securities under Section 12
of the Exchange Act, the Company agrees to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) so long as a Stockholder owns any Registrable Shares, to
furnish to such Stockholder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as the Stockholder may reasonably request in complying with any
rule or regulation of the SEC allowing the Stockholder to sell any such
securities without registration.
2.10 Termination. All of the Company's obligations to register
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Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall terminate
five (5) years after the closing of the Initial Public Offering.
3. Transfers of Rights. This Agreement, and the rights and obligations
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of the Purchaser hereunder, may not be assigned by such Purchaser except that
any person to which at least 3,600,000 Shares are validly transferred by the
Purchaser shall be deemed a "Purchaser" for purposes of this Agreement and any
other person to which Shares are validly transferred shall be deemed a
"Stockholder" (but not a "Purchaser") hereunder; provided in each case that the
transferee provides written notice of such assignment to the Company and agrees
in writing to be bound hereby.
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4. General.
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(a) Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
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remedies that may be available at law in the event of any breach of this
Agreement, the Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of New York (without
reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention:
Chief Financial Officer, or at such other address or addresses as may have been
furnished in writing by the Company to the Purchaser, with a copy to the Company
at the foregoing address, Attention: General Counsel, and with a copy to Xxxx
and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX, Attention: Xxxx X. Xxxxxx, Esq.; or
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 the Company 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.
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(e) Complete Agreement. This Agreement constitutes the entire
------------------
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
(f) Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company, on the one hand, and
the Purchaser or holders of over 50% of the Registrable Shares held by all of
the Stockholders, on the other hand; provided, that this Agreement may be
--------
amended with the consent of the holders of less than all Registrable Shares only
in a manner which applies to all such holders in the same fashion. Any such
amendment, termination or waiver effected in accordance with this Section 4(f)
shall be binding on all parties hereto, even if they do not execute such
consent. Upon the effectuation of any such amendment, the Company shall
promptly give written notice to the Stockholders, if any, who have not
previously consented thereto in writing. No waivers of or exceptions to any
term, condition or provision of this Agreement, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
(g) Pronouns. Whenever the context may require, any pronouns
--------
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(i) Section Headings. The section headings are for the
----------------
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
[signatures on following page]
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Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title:President
PURCHASER:
CBS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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(signature page to registration rights agreement)
-16-
