Exhibit 10.48
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Switchboard Incorporated
Common Stock and Warrant Purchase Agreement
This Common Stock and Warrant Purchase Agreement (this "Agreement") dated
as of December 11, 2000 is entered into between Switchboard Incorporated, a
Delaware corporation (the "Company"), and America Online, Inc., a Delaware
corporation (the "Purchaser"). The Company and the Purchaser are sometimes
referred to in this Agreement each as a "Party" and together as the "Parties".
In consideration of the mutual promises and covenants contained in this
Agreement, the Parties agree as follows:
1. Sale of Securities. Subject to and in accordance with the terms and
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conditions of this Agreement and in consideration of the Purchaser entering into
that certain Directory and Local Advertising Platform Services Agreement dated
the date hereof between the Parties (the "Directory Agreement") and delivering
to the Company at the Closing the Cash Purchase Price (as defined in Section 2
of this Agreement), the Company will sell and issue to the Purchaser, and the
Purchaser will purchase from the Company, (i) at the Closing (as defined in
Section 2 of this Agreement) 746,260 shares (the "Closing Shares" and together
with the Post-Closing Shares (as defined in Section 5.1(b) of this Agreement),
the "Shares") of the Company's common stock, $.01 par value per share (the
"Common Stock"), (ii) subsequent to the Closing, in accordance with and subject
to the provisions of Sections 5.1(a) and 5.1(b) of this Agreement, the Post-
Closing Shares and (iii) subsequent to the Closing, in accordance with and
subject to the provisions of Section 5.1(c) of this Agreement, a warrant to
purchase shares of Common Stock in the form appended to this Agreement as Annex
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1 (the "Warrant").
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2. The Closing. The closing (the "Closing") of the sale and purchase of
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the Closing Shares under this Agreement shall take place at the offices of ▇▇▇▇
and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ at 8:00 a.m. on December
11, 2000, or at such other time, date and place as are mutually agreeable to the
Company and the Purchasers. At the Closing, the Company shall deliver to the
Purchaser a certificate for the Closing Shares registered in the name of the
Purchaser against payment by the Purchaser to the Company of a cash amount equal
to $7,462.60 (the "Cash Purchase Price") by check or wire transfer to an account
designated by the Company. The date of the Closing is hereinafter referred to as
the "Closing Date".
3. Representations of the Company. Except as disclosed by the Company in
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Annex 3 appended to this Agreement, the Company hereby represents and warrants
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to the Purchaser that the statements contained in this Section 3 are true,
complete and correct. Annex 3 shall be arranged in paragraphs corresponding to
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the numbered and lettered paragraphs contained in this Section 3, and the
disclosures in any paragraph of Annex 3 shall be deemed disclosed for and to
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qualify both (i) the corresponding paragraph of this Section 3 and (ii) any
other paragraph of this Section 3 to the extent a reasonable person would
determine that the disclosure contained in such paragraph of Annex 3 could
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qualify or otherwise apply to other paragraphs of this Section 3,
notwithstanding the absence of a specific cross-reference.
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 to carry out the transactions contemplated by this
Agreement.
3.2 Capitalization. The authorized capital stock of the Company
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(immediately prior to the Closing) consists of (i) 85,000,000 shares of Common
Stock, of which 24,875,343 shares were issued and outstanding as of October 31,
2000, and (ii) 5,000,000 shares of preferred stock, $.01 par value per share, of
which one share has been designated as series E special voting preferred stock,
which share is issued and outstanding as of the date of this Agreement.
3.3 Issuance of Securities. The issuance, sale and delivery of the
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Shares and the Warrant in accordance with this Agreement, and the issuance and
delivery of the shares of Common Stock issuable upon exercise of the Warrant
(the "Warrant Shares"), have been, or will be on or prior to the Closing, 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
this Agreement, and any Warrant Shares, when issued in accordance with the terms
of the Warrant upon its exercise, will be duly and validly issued, fully paid
and nonassessable.
3.4 Governmental Consents. Except as may be required by the
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▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any court, arbitrational
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency (each of the foregoing is hereafter referred to
as a "Governmental Entity") 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 Shares and the Warrant, the issuance and delivery of the Warrant
Shares, as contemplated by this Agreement, except such filings as shall have
been made prior to and shall be effective on and as of the Closing and such
filings required to be made after the Closing under applicable federal and state
securities laws. Based on the representations made by the Purchaser in Section 4
of this Agreement, the offer and sale of the Closing Shares to the Purchaser
will be in compliance with applicable federal and state securities laws.
3.5 Reports and Financial Statements. The Company has previously
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made available to the Purchaser complete and accurate copies, as amended or
supplemented, of its (a) Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 2000, as filed with the Securities and Exchange Commission
(the "Commission"), and (b) Registration Statement on Form S-1 (Commission File
No. 333-90013), as filed with the Commission (such reports are collectively
referred to herein as the "Company Reports"). As of their respective dates, the
Company Reports did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements and unaudited interim
financial statements of the Company included in the Company Reports (i) comply
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission with respect thereto, (ii)
have been prepared
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in accordance with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods covered thereby
(except as may be indicated therein or in the notes thereto, and in the case of
quarterly financial statements, as permitted by Form 10-Q under the Securities
Exchange Act of 1934, as amended), and (iii) fairly presented the consolidated
financial condition, results of operations and cash flows of the Company as of
the respective dates thereof and for the periods referred to therein.
3.6 Litigation. There is no action, suit or legal proceeding, or
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governmental inquiry or investigation, pending against the Company, or, to the
Company's knowledge, threatened against the Company which questions the validity
of this Agreement or the right of the Company to enter into this Agreement.
3.7 Absence of Certain Changes. Except as disclosed in the Company
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Reports, since September 30, 2000, there has been no change, event or effect
that is materially adverse to the assets, business, financial condition or
results of operations of the Company, except for those changes, events and
effects that are directly caused by (I) conditions affecting the United States
economy as a whole, (II) conditions affecting the industry in which the Company
competes as a whole, (III) fluctuations in the market price of the Common Stock,
or (IV) events occurring in the ordinary course of business.
3.8 Undisclosed Liabilities. The Company has no liability (whether
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absolute, accrued, contingent or otherwise) of a nature required by GAAP to be
shown on a balance sheet, except for (i) liabilities reflected in the Company
Reports, (ii) liabilities which have arisen since September 30, 2000 in the
ordinary course of business and (iii) contractual liabilities incurred in the
ordinary course of business.
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 Shares, the Warrant,
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and any Warrant Shares, for its own account for investment and not with a view
to, or for sale in connection with, any distribution thereof, nor with any
present intention of distributing or selling the same; and, except as
contemplated by this Agreement, such Purchaser has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof. The Purchaser is an "accredited investor"
as defined in Rule 501(a) under the Securities Act.
4.2 Company Securities. As of June 30, 1999, the Purchaser
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beneficially owned 750,000 shares of the Company's series A preferred stock,
$.01 par value per share, which were then convertible into 750,000 shares of
Common Stock, and no other securities of the Company. As of the date hereof, the
Purchaser beneficially owns 750,000 shares of Common Stock and no other
securities of 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
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the Purchaser's satisfaction all inquiries made by the Purchaser; and the
Purchaser has sufficient knowledge and experience in finance and business that
it is capable of evaluating the risks and merits of its investment in the
Company and the Purchaser is able financially to bear the risks of that
investment.
4.4 Organization and Standing. The Purchaser 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 the corporate power and authority to conduct its business as
presently conducted by it and to enter into and perform this Agreement and to
carry out the transactions contemplated by this Agreement. The Purchaser has not
been organized, reorganized or recapitalized specifically for the purpose of
investing in the Company.
4.5 Governmental Consents. Except as may be required by the HSR Act,
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no consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any Governmental Entity is required on
the part of the Purchaser in connection with the execution and delivery by the
Purchaser of this Agreement, except such filings as shall have been made prior
to and shall be effective on and as of the Closing, and except any filings that,
if not made as required, would not have a material adverse effect on the ability
of the Purchaser to perform its obligations under this Agreement.
4.6 Litigation. There is no action, suit or legal proceeding, or
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governmental inquiry or investigation, pending against the Purchaser or, to the
Purchaser's knowledge, threatened against the Purchaser which questions the
validity of this Agreement or the right of the Purchaser to enter into this
Agreement, or which would have a material adverse effect on the ability of the
Purchaser to perform its obligations under this Agreement.
5. Covenants.
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5.1 Issuance of Securities.
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(a) 24 Month Shares. If the Directory Agreement has not been
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terminated by the date which is 24 months after the date of this Agreement
(the "24 Month Date"), then, within ten business days after the 24 Month
Date, the Company shall issue and deliver to the Purchaser 746,260 shares
of Common Stock (as adjusted for any stock split, reverse stock split,
stock dividend, reclassification or other similar event) (the "24 Month
Shares"); provided, that, the Company shall not be required to issue or
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deliver the 24 Month Shares to the Purchaser unless it shall have first
received from the Purchaser an executed investment letter in the form
appended to this Agreement as Annex 5.1(a).
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(b) 36 Month Shares. If the Directory Agreement has not been
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terminated by the date which is 36 months after the date of this Agreement
(the "36 Month Date"), then, within ten business days after the 36 Month
Date, the Company shall issue and deliver to the Purchaser 746,260 shares
of Common Stock (as adjusted for any stock split, reverse stock split,
stock dividend, reclassification or other similar event) (the "36 Month
Shares" and together with the 24 Month Shares, the "Post-Closing Shares");
provided,that, the Company shall not be required to issue or deliver the
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36 Month Shares to the Purchaser unless it
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shall have first received from the Purchaser an executed investment letter
in the form appended to this Agreement as Annex 5.1(b).
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(c) Warrant. If the Purchaser and the Company agree in writing
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to renew the Directory Agreement for a period of a minimum of four years
after the expiration of the Initial Term (as defined in the Directory
Agreement) pursuant to Section 19.1 of the Directory Agreement, the Company
shall issue and deliver to the Purchaser the Warrant within ten business
days of the expiration of the Initial Term; provided, that, the Company
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shall not be required to issue or deliver the Warrant to the Purchaser
unless it has first received from the Purchaser an executed investment
letter in the form appended to this Agreement as Annex 5.1(c).
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5.2 Reservation of Common Stock. The Company will at all times
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during which securities remain issuable pursuant to Section 5.1 of this
Agreement and upon exercise of the Warrant reserve and keep available, solely
for issuance and delivery pursuant to the terms of Section 5.1 of this Agreement
or upon the exercise of the Warrant, as applicable, such number of shares of
Common Stock and other stock, securities and property, as from time to time may
be issuable pursuant to the terms of this Agreement and upon the exercise of the
Warrant.
5.3 Directory Events.
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(a) For purposes of this Agreement, a "Directory Event" shall
mean the occurrence of any one or more of the following:
(i) delivery by the Company to the Purchaser of notice of
termination of the Directory Agreement by the Company pursuant to Section 9.3 of
the Directory Agreement; and
(ii) delivery by the Purchaser to the Company of notice of
termination of the Directory Agreement by the Purchaser pursuant to Section
11.5.4 of the Directory Agreement.
(b) Notwithstanding anything to the contrary in this Agreement
or any agreement or instrument entered into between, or executed by, the Company
and/or the Purchaser, immediately upon the occurrence of any one or more than
one of the Directory Events (the "Directory Event Date"), and without any notice
whatsoever, to the Purchaser or otherwise, all Closing Shares shall be
immediately cancelled, with any and all certificates representing such cancelled
Closing Shares being returned promptly to the Company (but in any case not more
than 20 days subsequent to the Directory Event Date) and reflected in the record
books of the Company as "CANCELLED" (notwithstanding the return or failure to
return of such certificates to the Company).
(c) Whenever the context may require, the terms "Shares",
"Closing Shares", "24 Month Shares", "36 Month Shares", "Post-Closing Shares"
and "Warrant Shares", as used in this Agreement shall include any securities or
other property issued with respect to or in substitution for such securities.
5.4 HSR Act Filings. Prior to any acquisition of any Post-Closing Shares
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pursuant to the terms of this Agreement and prior to any exercise of the
Warrant, in whole or in
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
part, the Purchaser hereby agrees to provide the Company with written notice
(the "HSR Notice") to the extent such acquisition of Post-Closing Shares or such
exercise of the Warrant, as the case may be, could reasonably be expected to
require the filing of any Notification and Report Forms and related material, or
any successor forms and related material with the Federal Trade Commission and
the Antitrust Division of the United States Department of Justice, or any
successor agencies, under the HSR Act, or any successor statutes and
regulations. In addition, the Purchaser hereby agrees, and upon receipt of the
HSR Notice the Company hereby agrees, to use commercially reasonable efforts (i)
to promptly file any HSR Filing that may be required, (ii) to obtain an early
termination of any applicable waiting period and (iii) to make any further
filings or information submissions and take such other actions pursuant to the
HSR Act, or any successor statutes and regulations, that may be necessary,
proper, or advisable. Notwithstanding anything in this Agreement or in the
Warrant to the contrary, in no event shall the Company issue any Post-Closing
Shares or shall the Purchaser exercise the Warrant, in whole or in part, prior
to the expiration of any applicable waiting periods and receipt by the Parties
of all notices, approvals, orders, qualifications, declarations and clearances
under the HSR Act, or any successor statutes and regulations (and in the case of
any issuance by the Company of any Post-Closing Shares, the Company shall have
up to ten business days after such expiration and receipt, but in any event no
less time than the respective time permitted under Section 5.1 of this Agreement
or under the Warrant, to effect such issuance). In the event that there is an
additional request by the Federal Trade Commission or the Antitrust Division of
the United States Department of Justice, or any successor agencies, which either
Party reasonably believes is too excessive in scope or substance to warrant the
continuation of the HSR Act filing and clearance process (a "Notice of Excess"),
then upon written notice to the other Party, neither Party shall be obligated
under this Section 5.4 to (A) respond to such formal requests for additional
information or documentary material pursuant to 16 C.F.R. 803.20 under the HSR
Act, or any successor statutes or regulations (a "Formal Response") or (B) to
sell or dispose of or hold separately (through a trust or otherwise) any assets
or businesses of such Party or the affiliates of such Party; provided, that, if
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the Company provides a Notice of Excess to the Purchaser, the Company shall
within ten business days of the due date for the Formal Response to which such
Notice of Excess applied, pay to the Purchaser in cash by check or wire transfer
to an account designated by the Purchaser the amounts which follow, as
applicable: (y) if the applicable HSR Notice was with respect to the 24 Month
Shares or the 36 Month Shares, $[**], respectively, and (z) if the
applicable HSR Notice was with respect to any number of Warrant Shares which are
unissuable or unexercisable under this Section 5.4 due to HSR Act requirements,
such amount as equals (I) $4.32 multiplied by (II) such number of Warrant
Shares.
5.5 Acquisition of Company Securities.
---------------------------------
(a) From and after the date hereof and until the Permitted
Acquisition Date (as defined in Section 5.5(c)(i) of this Agreement), without
the prior written consent of the Company, the Purchaser shall not purchase or
otherwise acquire or propose or offer to purchase or otherwise acquire, and the
Purchaser shall prevent all Purchaser Affiliates (as defined in Section 8(a) of
this Agreement) from beneficially purchasing or otherwise acquiring or proposing
or offering to purchase or otherwise acquire, directly or indirectly, whether by
tender or exchange offer, market purchase, privately negotiated purchase, merger
or other business combination or otherwise, either any securities of the Company
(or any beneficial ownership interest therein) or any Voting Interest (as
defined in Section 5.5(c)(ii) of this Agreement) other
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
than securities and the Voting Interest beneficially owned by the Purchaser as
of the date hereof and after giving effect to the Closing; provided, that:
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(i) the Purchaser may acquire securities of the Company as
a result of any stock dividend, stock split, reclassification or similar event
with respect to the Common Stock;
(ii) the Purchaser may acquire securities of the Company to
the extent (the "Permitted Extent") that such securities, when aggregated with
all other securities and Voting Interest beneficially owned by the Purchaser or
any Purchaser Affiliate (including, without limitation, the maximum number of
shares of Common Stock issuable pursuant to this Agreement (assuming, solely for
purposes of this Section 5.5(a)(ii), that such shares were issued and
outstanding as of the date of any such acquisition) and the maximum number of
shares of Common Stock issuable upon exercise of the Warrant, on an as-exercised
basis (assuming, solely for purposes of this Section 5.5(a)(ii), that the
Warrant and such shares were issued and outstanding as of the date of any such
acquisition)), do not represent as of the date of any such acquisition [**]% or
more of the outstanding shares of Common Stock (specifically including, for
purposes of calculating such number of outstanding shares of Common Stock, any
and all shares of Common Stock actually issued as of such date pursuant to this
Agreement and any and all shares of Common Stock actually issued as of such date
upon exercise of the Warrant, and specifically excluding all shares of Common
Stock issuable but not issued as of such date under this Agreement and upon
exercise of the Warrant), or a [**]% or more Voting Interest;
(iii) unless otherwise restricted by the provisions of this
Agreement or the Warrant, the Purchaser may (A) acquire shares of Common Stock
pursuant to the terms of Sections 5.1(a) and 5.1(b) of this Agreement, (B)
acquire the Warrant pursuant to the terms of Section 5.1(c) of this Agreement
and (C) may acquire shares of Common Stock pursuant to an exercise of the
Warrant pursuant to the terms of the Warrant; and
(iv) the Purchaser may acquire securities of the Company (A)
pursuant to a tender offer, provided, that, it be a condition to such tender
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offer that the Purchaser acquire in such tender offer greater than [**]% of the
outstanding shares of Common Stock at the time of the closing of such tender
offer or (B) pursuant to any merger or purchase agreement entered into between
the Company and the Purchaser.
(b) If the Purchaser or any Purchaser Affiliate at any time
prior to the Permitted Acquisition Date acquires, in violation of this Section
5.5, securities of the Company in excess of the Permitted Extent (and such
violation is unknowing and unintentional), the Purchaser shall deliver to the
Company written notice thereof as soon as practicable, but in any event no later
than two business days after such acquisition comes to the attention of the
Purchaser (a "Purchaser Excess Notice"). As soon as practicable after the
earlier date to occur (the "Excess Notice Date") of (i) the date of the
Purchaser Excess Notice and (ii) the delivery by the Company to the Purchaser of
a written notice that the Company is aware that the Purchaser or a Purchaser
Affiliate may have acquired securities of the Company in excess of the Permitted
Extent, and in any event not more than 30 days after such Excess Notice Date,
the Purchaser shall sell, transfer, dispose of or otherwise divest itself or its
Purchaser Affiliates of such number of securities of the Company such that the
Purchaser no longer beneficially owns securities of
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
the Company in excess of the Permitted Extent (an "Excess Disposition");
provided, that, if the provisions of applicable law or any Contractual
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Restrictions (as defined in this Section 5.5(b)) prohibit an Excess Disposition
within such 30-day period, the Purchaser shall effect an Excess Disposition as
soon as practicable after such prohibitions lapse (the "Prohibition Termination
Date") and in any event no later than 30 days after the Prohibition Termination
Date. In the event that the provisions of applicable law or any Contractual
Restrictions prohibit an Excess Disposition within 30 days after the Excess
Notice Date, the Purchaser shall provide notice thereof and of the expected
applicable Prohibition Termination Date to the Company (an "Extension Notice")
at least five business days prior to the end of such 30-day period. For purposes
of this Agreement "Contractual Restrictions" shall mean any provision of any
agreement which is enforceable by the Company against the Purchaser (which
restrictions have not been waived by the Company). For the avoidance of doubt,
this Section 5.5(b) shall not impose upon the Company any obligation to register
shares of its Common Stock in addition to or different from the provisions of
any registration rights agreement. The provisions of this Section 5.5(b) shall
be inapplicable to any acquisition of securities of the Company by the Purchaser
or a Purchaser Affiliate if such acquisition causes the Purchaser's beneficial
ownership of the Company to equal or exceed [**]% of the outstanding shares of
Common Stock (calculated consistent with Section 5.5(a)(ii) of this Agreement)
or to equal or exceed [**]% of the Voting Interest of the Company (a "[**]%
Acquisition").
(c) For purposes of this Agreement:
(i) "Permitted Acquisition Date" means the earlier of (A)
July 1, 2009 and (B) the date of termination of both that certain [**] Agreement
dated as of [**] between the Company and [**] and that certain License Agreement
dated as of [**] between the Company and [**], each as amended or extended
pursuant to its respective terms (such agreements together, the "[**]
Agreements"); and
(ii) "Voting Interest" means the aggregate percentage of
votes for elections of directors of the Company and/or approval of other matters
presented for a vote of securityholders of the Company generally controlled,
directly or indirectly, by the Purchaser or any Purchaser Affiliate, assuming
the conversion, exchange or exercise by the Purchaser and all Purchaser
Affiliates of securities of the Company or any other instrument, agreement or
right into or for Common Stock or other voting securities of the Company,
including, without limitation, all votes governed or controlled by any voting
agreement, trust, group or other arrangement, formal or informal, to or of which
the Purchaser or any Purchaser Affiliate is a party or a member and all votes
solicited by the Purchaser or any Purchaser Affiliate by proxy, consent or
otherwise.
(d) To the extent required by law, the Purchaser may file a
Schedule 13D and any successor forms, and any amendments thereto, with the
Commission to reflect information with respect to its ownership interest in the
Company and any proposals it is not prohibited under this Section 5.5 from
making or other actions it is not prohibited under this Section 5.5 from taking.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(e) The Company has entered into a letter agreement with [**],
dated [**] (the "[**] Letter"). The Company hereby acknowledges that the
[**] Letter is and has been a significant consideration for the Purchaser's
decision to enter into this Agreement, and therefore, the Company agrees not to
agree to any amendment of the [**] Letter without the express prior written
consent of the Purchaser.
(f) The Purchaser shall indemnify the Company in respect of, and
hold it harmless against, any and all actual and direct damages (and not
consequential damages) of the Company under the [**] Agreements resulting from
any termination of either or both of the [**] Agreements (pursuant to the terms
thereof) due to any breach by the Purchaser of this Section 5.5
("[**] Damages"). The Purchaser shall not be obligated to indemnify the Company
as set forth in this Section 5.5(f) for any [**] Damages resulting solely from
any acquisition (other than a [**]% Acquisition), in violation of this Section
5.5 (which such violation was unknowing and unintentional), of securities of the
Company by the Purchaser or any Purchaser Affiliate with respect to which the
Purchaser effects an Excess Disposition within the time periods set forth in
Section 5.5(b) of this Agreement. In no event shall the aggregate
indemnification liability of the Purchaser under this Section 5.5(f) exceed
$[**] In the event of any amendment of any of the [**] Agreements after the date
hereof without the prior written consent of the Purchaser, such amendment shall
not cause the Purchaser's indemnification liability under this Section 5.5(f) to
be increased beyond the indemnification liability for which the Purchaser would
have been liable under this Section 5.5(f) pursuant to the terms of the [**]
Agreements which are in effect as of the date hereof.
(g) For avoidance of doubt, the Purchaser shall not be deemed to
have breached this Section 5.5, and therefore shall not be liable for any
indemnity under Section 5.5(f) of this Agreement, in the event that the
Purchaser's ownership or Voting Interest in the Company exceeds the Permitted
Extent (or [**]% of the outstanding shares of Common Stock (calculated
consistent with Section 5.5(a)(iii) of this Agreement) or [**]% of the Voting
Interest of the Company, as applicable) solely as an immediate consequence of a
repurchase of any of the Company's securities by the Company in one transaction
or through a series of related transactions.
(h) If the Purchaser or any Purchaser Affiliate at any time
prior to the Permitted Acquisition Date acquires securities of the Company or
any Voting Interest in excess of the Permitted Extent, the Purchaser shall
deliver to the Company written notice thereof as soon as practicable, but in any
event no later than two business days after such acquisition comes to the
attention of the Purchaser; provided, that, the Purchaser shall not provide
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any such notice in addition to a Purchaser Excess Notice. If the Purchaser
delivers to the Company any Purchaser Excess Notice or any Extension Notice
pursuant to Section 5.5(b) of this Agreement or any notice pursuant to the
immediately preceding sentence of this Section 5.5(h), the Purchaser shall also
deliver a copy of such Purchaser Excess Notice, such Extension Notice or such
other notice to [**],Attention: General Counsel.
5.6 Acquisition Offers.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(a) For purposes of this Agreement, the following terms shall
have the following meanings:
(i) "Acquisition Offer" means a bona fide offer to (A)
acquire, whether by tender or exchange offer, merger or other business
combination, securities of the Company to the extent that after such acquisition
the Offeror would own at least [**] of the outstanding securities of the
Company, or (B) acquire all or substantially all of the assets of the Company.
(ii) "Acquisition Transaction" means a transaction
described in clause (A) or (B) of Section 5.6(a)(i) of this Agreement.
(iii) "No-Shop Agreement" means an agreement providing that
the Company shall not (A) engage in negotiations relating to an Acquisition
Transaction with a party other than a specific Offeror and (B) solicit any
proposal relating to an Acquisition Transaction from a party other than a
specific Offeror.
(iv) "Offeror" means any person or entity or group of
persons or entities other than the Purchaser or a Purchaser Affiliate that makes
an Acquisition Offer to the Company.
[**]
(c) The Purchaser shall hold in confidence, and shall not
directly or indirectly disclose (or permit or suffer its personnel to disclose)
to any person outside its organization, any Acquisition Notice and the contents
thereof (collectively, the "Confidential Information"). The Purchaser shall
disclose the Confidential Information only to persons within its organization or
its accountants or attorneys who have a need to know such Confidential
Information in the course of the performance of their duties. The Purchaser
shall take steps which are reasonably calculated to protect the confidentiality
of Confidential Information and shall be responsible to the Company for any
disclosure or misuse of Confidential Information which results from a failure to
comply with this Section 5.6(c). The Purchaser will promptly report to the
Company in writing any known or suspected violation of the terms of this Section
5.6(c) and will take all reasonable further steps requested by the Company to
prevent, control or remedy any such violation.
-10-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6. Conditions to the Obligations of the Purchaser. The obligation of the
----------------------------------------------
Purchaser to purchase the Closing Shares at the Closing is subject to the
execution by the Company, and the delivery to the Purchaser, of the following
agreements on or before the Closing:
(a) The Registration Rights Agreement appended to this
Agreement as Annex 6(a) (the "Registration Rights Agreement"); and
----------
(b) the Directory Agreement.
7. Condition to the Obligations of the Company. The obligations of the
-------------------------------------------
Company under Section 1 of this Agreement are subject to the execution by the
Purchaser, and the delivery to the Company, of the Directory Agreement on or
before the Closing.
8. Requirements for Transfer.
-------------------------
(a) Neither the Shares nor the Warrant nor the Warrant Shares
nor any interest therein (collectively, the "Restricted Securities") shall be
sold or otherwise transferred, in whole or in part, in any respect; provided,
--------
that, the Purchaser may transfer all of the Restricted Securities (but not less
----
than all of the Restricted Securities) to any entity controlling, controlled by
or under common control of the Purchaser (a "Purchaser Affiliate") if (I) the
transferee agrees in writing as part of such notice to be bound by the terms of
this Agreement (including, without limitation, the terms of Section 5.5 of this
Agreement) and the Warrant, (II) America Online, Inc. agrees in writing as part
of such notice to remain primarily responsible for all of the obligations of the
transferee under this Agreement and the Warrant and (III) either such transfer
shall have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the Company first shall have been furnished with such
representation letters and other documentation, reasonably satisfactory to the
Company, to the effect that such transfer is exempt from the registration
requirements of the Securities Act. Notwithstanding the foregoing, upon the
occurrence of their respective Transfer Dates, the Closing Shares, the 24 Month
Shares, the 36 Month Shares and the Warrant Shares, may each be transferred, in
whole or in part, in any respect if such transfer first shall have been
registered under the Securities Act or the Company first shall have been
furnished with such representation letters and other documentation, reasonably
satisfactory to the Company, to the effect that such transfer is exempt from the
registration requirements of the Securities Act. As used in this Agreement,
"Transfer Date" shall mean:
(i) with respect to the Closing Shares, the date, if any,
on which the Purchaser delivers to the Company a true written certification to
the Company that the [**] (as defined in the Directory Agreement) is
effective;
(ii) with respect to the 24 Month Shares, the date 36 months
after the date of this Agreement;
(iii) with respect to the 36 Month Shares, the date 48
months after the date of this Agreement;
(iv) with respect to the Warrant Shares, the date one year
after the Date of Issuance (as defined in the Warrant); and
-11-
(v) with respect to any and all Shares and Warrant Shares
and notwithstanding the foregoing clauses (i), (ii), (iii) and (iv) of this
Section 8(a), the date, if any, on which the Directory Agreement is terminated
pursuant to Section 19.4 of the Directory Agreement.
(b) Each certificate representing the Shares and the Warrant
Shares shall bear a legend substantially in the following form:
"The securities 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
such securities are registered under such Act or the
Corporation obtains appropriate documentation to the
effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing any
Shares or any shares of Common Stock issuable upon exercise of the Warrant, at
the request of the holder thereof, at such time as they become eligible for
resale pursuant to Rule 144(k) under the Securities Act and upon the delivery to
the Company of such representation letters and other documentation, reasonably
satisfactory to the Company, that such legend may be removed.
(c) Each certificate representing Closing Shares shall bear a
legend substantially in the following form:
"The shares represented by this certificate have been
issued pursuant to, and are subject to cancellation
without payment of additional consideration and
restrictions on transfer set forth in a Common Stock
and Warrant Purchase Agreement with the Corporation, a
copy of which is available for inspection at the office
of the Secretary of the Corporation."
(d) Each certificate representing Post-Closing Shares shall bear
a legend substantially in the following form:
"The shares represented by this certificate have been
issued pursuant to, and are subject to restrictions on
transfer set forth in a Common Stock and Warrant
Purchase Agreement with the Corporation, a copy of
which is available for inspection at the office of the
Secretary of the Corporation."
(e) Each certificate representing Warrant Shares shall bear a
legend substantially in the following form:
"The shares represented by this certificate have been
issued pursuant to, and are subject to restrictions on
transfer set forth in a Common Stock and Warrant
Purchase Agreement with the Corporation and a Common
Stock Purchase Warrant issued by the
-12-
Corporation, copies of which are available for
inspection at the office of the Secretary of the
Corporation."
9. Miscellaneous.
-------------
9.1 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their respective successors and
permitted assigns. Neither Party may assign its respective rights or obligations
under this Agreement without the prior written consent of the other Party to
this Agreement.
9.2 Survival of Representations and Warranties. The representations
------------------------------------------
and warranties contained herein shall survive the execution and delivery of this
Agreement and the closing of the transactions contemplated hereby for a period
of one year.
9.3 Expenses. Each Party shall pay its own fees and expenses in
--------
connection with the preparation and evaluation of this Agreement and the closing
of the transactions contemplated hereby.
9.4 Brokers. The Company and the Purchaser will indemnify and save
-------
the other Party harmless from and against any and all claims, liabilities or
obligations with respect to brokerage or finders' fees or commissions, or
consulting fees in connection with the transactions contemplated by this
Agreement asserted by any person on the basis of any statement or representation
alleged to have been made by such indemnifying Party.
9.5 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.
9.6 Specific Performance. In addition to any and all other remedies
--------------------
that may be available at law in the event of any breach of this Agreement, each
Party shall be entitled to specific performance of the agreements and
obligations of the other Party hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
9.7 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Delaware (without reference
to the conflicts of law provisions thereof).
9.8 Notices. All notices, requests, consents, and other
-------
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company: With a copy to:
Switchboard Incorporated Switchboard Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-13-
Attention: Chief Executive Officer Attention: Associate General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser: With a copy to:
America Online, Inc. America Online, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President-Business Affairs Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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 Party notice in the manner set forth in this
Section 9.8.
9.9 Complete Agreement. This Agreement (including its Annexes)
------------------
constitutes the entire agreement and understanding of the Parties with respect
to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
9.10 Amendments and Waivers. Except as otherwise expressly set forth
----------------------
in this Agreement, any term of this Agreement may be amended or terminated and
the observance of any term of this Agreement may be waived with respect to all
Parties to this Agreement (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company
and the Purchaser. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
9.11 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.
9.12 Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which shall constitute one and the same document. This
Agreement may be executed by facsimile signatures.
9.13 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.
-14-
9.14 Confidential Information. Neither Party may issue a press
------------------------
release or other disclosure containing Confidential Information (as defined in
the Directory Agreement) without the consent of the other Party, unless, and to
the extent that, such disclosure is required by law, rule, regulation or
government or court order. In such event (with the sole exception of (a) a
Company Form 8-K filing to be made with the Commission in connection with the
announcement of the execution of this Agreement, which Form 8-K filing the
Company has afforded the Purchaser a reasonable period of time to review under
the circumstances and (b) the mutually agreed-upon press release to be issued by
the Parties in connection with such announcement), the disclosing Party will
provide at least five (5) business days prior written notice to the other Party
(unless otherwise required by law or mutually agreed-upon by the Parties) of
such proposed disclosure. Further, in the event such disclosure is required of
either Party under the laws, rules and regulations of the Commission or any
other applicable governing body, such Party will, in the reasonable discretion
of such Party, upon good faith consultation with the other Party, (i) redact
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to the Commission or such
governing body that such portions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Commission or otherwise
be held in the strictest confidence to the fullest extent permitted under the
laws, rules and regulations of any other applicable governing body.
Notwithstanding anything to the contrary in this Agreement or in the Directory
Agreement, neither Party shall be restricted from disclosing any Confidential
Information to the extent such Party reasonably believes such disclosure is
required pursuant to applicable law or stock market or exchange requirements.
* * * * *
-15-
Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
PURCHASER:
AMERICA ONLINE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
-16-
Annex 5.1(a)
------------
INVESTMENT LETTER
Switchboard Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In order to induce Switchboard Incorporated, a Delaware corporation (the
"Company"), to issue and sell to America Online, Inc., a Delaware corporation
(the "Investor"), 746,260 shares (the "Shares") of Common Stock, $.01 par value
per share, of the Company (the "Common Stock"), the Investor hereby represents,
warrants and covenants as follows:
(a) The Investor is accepting the Shares for its own account for
investment only, and not with a view to, or for sale in connection with, any
distribution of the Shares in violation for the Securities Act of 1933, as
amended (the "Securities Act"), or any rule or regulation under the Securities
Act.
(b) The Investor has had such opportunity as it has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit it to evaluate the merits and risks of its investment in the Company.
(c) The Investor has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Shares and to make an informed investment decision with respect to such
purchase.
(d) The Investor can afford a complete loss of the value of the Shares and
is able to bear the economic risk of holding the Shares for an indefinite
period.
(e) The Investor understands that (i) the Shares have not been registered
under the Securities Act and the Shares are "restricted securities" within the
meaning of Rule 144 under the Securities Act, (ii) the Shares cannot be sold,
transferred or otherwise disposed of unless so sold, transferred or otherwise
disposed of in compliance with the restrictions on transfer set forth in Section
8 of that certain Common Stock and Warrant Purchase Agreement dated as of
December 11, 2000 between the Company and the Purchaser ("Section 8"); (iii) in
any event, the exemption from registration under Rule 144 or otherwise may not
be available for the Shares, may not be available for at least one year and even
then will not be available unless a public market then exists for the Common
Stock, adequate information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied with; and (iv)
other than as specifically provided for in that certain Registration Rights
Agreement dated as of December 11, 2000 between the Company and the Investor,
the Company has no current obligation or current intention to register the
Shares under the Securities Act.
5.1(a) - 1
(f) Legends substantially in the form of those set forth in Section 8 will
be placed on any certificate representing the Shares.
Very truly yours,
INVESTOR:
AMERICA ONLINE, INC.
By: _______________________________
Name:
Title:
Dated: ____________________________
5.1(a) - 2
Annex 5.1(b)
------------
INVESTMENT LETTER
Switchboard Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In order to induce Switchboard Incorporated, a Delaware corporation (the
"Company"), to issue and sell to America Online, Inc., a Delaware corporation
(the "Investor"), 746,260 shares (the "Shares") of Common Stock, $.01 par value
per share, of the Company (the "Common Stock"), the Investor hereby represents,
warrants and covenants as follows:
(a) The Investor is accepting the Shares for its own account for
investment only, and not with a view to, or for sale in connection with, any
distribution of the Shares in violation for the Securities Act of 1933, as
amended (the "Securities Act"), or any rule or regulation under the Securities
Act.
(b) The Investor has had such opportunity as it has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit it to evaluate the merits and risks of its investment in the Company.
(c) The Investor has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Shares and to make an informed investment decision with respect to such
purchase.
(d) The Investor can afford a complete loss of the value of the Shares and
is able to bear the economic risk of holding the Shares for an indefinite
period.
(e) The Investor understands that (i) the Shares have not been registered
under the Securities Act and the Shares are "restricted securities" within the
meaning of Rule 144 under the Securities Act, (ii) the Shares cannot be sold,
transferred or otherwise disposed of unless so sold, transferred or otherwise
disposed of in compliance with the restrictions on transfer set forth in Section
8 of that certain Common Stock and Warrant Purchase Agreement dated as of
December 11, 2000 between the Company and the Purchaser ("Section 8"); (iii) in
any event, the exemption from registration under Rule 144 or otherwise may not
be available for the Shares, may not be available for at least one year and even
then will not be available unless a public market then exists for the Common
Stock, adequate information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied with; and (iv)
other than as specifically provided for in that certain Registration Rights
Agreement dated as of December 11, 2000 between the Company and the Investor,
the Company has no current obligation or current intention to register the
Shares under the Securities Act.
5.1(b) - 1
(f) Legends substantially in the form of those set forth in Section 8 will
be placed on any certificate representing the Shares.
Very truly yours,
INVESTOR:
AMERICA ONLINE, INC.
By: ____________________________
Name:
Title:
Dated: _________________________
5.1(b) - 2
Annex 5.1(c)
------------
INVESTMENT LETTER
Switchboard Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In order to induce Switchboard Incorporated, a Delaware corporation (the
"Company"), to issue and sell to America Online, Inc., a Delaware corporation
(the "Investor"), the Common Stock Purchase Warrant No. AOL-1 (the "Warrant")
and any and all of the shares of Common Stock, $.01 par value per share, of the
Company (the "Common Stock") issuable upon any exercise or partial exercise of
the Warrant (the "Shares"), the Investor hereby represents, warrants and
covenants as follows:
(a) The Investor is accepting the Warrant and the Shares for its own
account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Warrant and/or Shares in violation for the
Securities Act of 1933, as amended (the "Securities Act"), or any rule or
regulation under the Securities Act.
(b) The Investor has had such opportunity as it has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit it to evaluate the merits and risks of its investment in the Company.
(c) The Investor has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Warrant and/or the Shares and to make an informed investment decision with
respect to such purchase.
(d) The Investor can afford a complete loss of the value of the Warrant
and/or the Shares and is able to bear the economic risk of holding the Warrant
and/or the Shares for an indefinite period.
(e) The Investor understands that (i) neither the Warrant nor the Shares
have been registered under the Securities Act and both the Warrant and the
Shares are "restricted securities" within the meaning of Rule 144 under the
Securities Act, (ii) neither the Warrant nor the Shares can be sold, transferred
or otherwise disposed of unless so sold, transferred or otherwise disposed of in
compliance with the restrictions on transfer set forth in Section 4 of the
Warrant; (iii) in any event, the exemption from registration under Rule 144 or
otherwise may not be available for the Warrant or the Shares, may not be
available for at least one year and even then will not be available unless a
public market then exists for the Common Stock, adequate information concerning
the Company is then available to the public, and other terms and conditions of
Rule 144 are complied with; and (iv) other than as specifically provided for in
that certain Registration Rights Agreement dated as of December 11, 2000 between
the Company and the
Investor, the Company has no current obligation or current intention to register
the Warrant or the Shares under the Securities Act.
(f) Legends substantially in the form of those set forth in Section 4 of
the Warrant will be placed on any certificate representing the Shares.
Very truly yours,
INVESTOR:
AMERICA ONLINE, INC.
By: ____________________________
Name:
Title:
Dated: _________________________
