EXHIBIT 10.25
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of March 7,
2000 is entered into by and between Switchboard Incorporated, a Delaware
corporation (the "Company"), and Banyan Systems Incorporated, a Massachusetts
corporation (together with any present or future, direct or indirect, wholly
owned subsidiary thereof, "Banyan").
Recitals
WHEREAS, Banyan holds 7,000,000 shares of the Company's Common Stock,
which were originally issued to Banyan during 1996; and
WHEREAS, the Company and Banyan desire to provide for certain arrangements
with respect to the possible future registration of such shares under the
Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other federal agency of the United States at the time administering the
Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
of the Commission issued the Exchange Act, as they each may, from time to
time, be in effect.
"Initial Public Offering" means the initial underwritten public
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).
"Prospectus" means the prospectus included in any Registration
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
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.
"Registrable Shares" means (i) the Shares and (ii) 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 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 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 included in a Registration Statement.
"Shares" means the 7,000,000 shares of Common Stock issued to Banyan
during 1996.
"Stockholders" means Banyan and any persons or entities to whom the
rights granted under this Agreement are transferred by Banyan, its
successors or assigns pursuant to Section 3 hereof.
2. Registration Rights
2.1 Required Registrations.
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(a) At any time after the first anniversary of the closing of
the Initial Public Offering, Banyan may request, in writing, that
the Company effect the registration on Form S-3 (or any successor
form) of Registrable Shares owned by Banyan, having an aggregate
value of at least $10,000,000 (based on the then current market
price or fair value). For avoidance of doubt, the parties agree that
the Company shall not be required to file a registration statement
on Form S-1 or Form S-2 (or any successor form which does not allow
the incorporation by reference of subsequently filed Exchange Act
reports).
(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 Banyan 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 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 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
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made pursuant to Section 2.1(a). For the avoidance of doubt, the
parties agree that no Stockholder shall be entitled to include any
shares in a registration requested pursuant to its rights under this
Section 2.1 unless each Other Holder under the following listed
agreements (which term includes Banyan to the extent so provided in
one of the following listed agreements) is entitled to include in
such registration all of the shares of Common Stock which it desires
to include and which are registrable shares under one of the
following listed agreements: (1) Amended and Restated Registration
Rights Agreement, dated as of February 20, 1998, as amended, among
the Company, America Online, Inc., Digital City Inc. and Banyan; (2)
Registration Rights Agreement dated as of December 31, 1997, between
the Company and Continuum Software, Inc.; (3) Amended and Restated
Registration Rights Agreement dated as of May 3, 1999 between the
Company and Banyan; and (4) Registration Rights Agreement dated as
of June 30, 1999 between the Company and CBS Corporation. 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 Banyan, which approval
will not be unreasonably withheld.
(e) The Company shall not be required to effect more than one
registration pursuant to Section 2.1(a) per year. 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
Banyan 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 Banyan 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 Banyan 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).
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(f) If at the time of any request to register Registrable
Shares by Banyan 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;
provided, however, that the Company may not utilize this right more
than twice in any twelve month period.
2.2 Incidental Registration.
(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 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 this 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
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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 as follows:
(i) first, there shall be included any shares proposed
to be sold by the Company;
(ii) second, there shall be included any shares
permitted to be included in the registration pursuant to
Section 3(b) of the Amended and Restated Registration Rights
Agreement, dated as of February 20, 1998, as amended, among
the Company, America Online, Inc., Digital City Inc., and
Banyan;
(iii) third, there shall be included in the registration
any shares permitted to be included pursuant to Section 2(b)
of the Registration Rights Agreement dated as of December 31,
1997 between the Company and Continuum Software, Inc.;
(iv) fourth, there shall be included in the registration
any shares permitted to be included pursuant to Section 3(b)
of the Amended and Restated Registration Rights Agreement
dated as of May 3, 1999 between the Company and Banyan;
(v) fifth, there shall be included in the registration
any shares permitted to be included pursuant to Section 2(b)
of the Registration Rights Agreement dated as of June 30, 1999
between the Company and CBS Corporation; and
(vi) sixth, except as otherwise required in any contract
to which the Company is a party, there shall be included in
the registration any shares requested to be included by the
Stockholders and any Other Holders 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 clause (vi) of 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
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securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
2.3 Registration Procedures.
(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;
(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
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;
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(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 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
Expenses for all registrations under this Agreement; provided, however,
that if a
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registration under Section 2.1 is withdrawn at the request of Banyan
(other than as a result of information concerning the business or
financial condition of the Company which is first made known to Banyan
after the date on which such registration was requested or pursuant to the
final sentence of Section 2.1(e)) and if Banyan elects not to have such
registration counted as a registration requested under Section 2.1, Banyan
shall pay the Registration Expenses of such registration. For purposes of
this Section 2.4, 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.
(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 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 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
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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 directors 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
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 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
2.5 (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 the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the
Indemnifying 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 give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 2.5 except to the extent that the
Indemnifying Party is adversely affected by such failure. The
Indemnified Party
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may participate in such defense at such party's expense; provided,
however, that the Indemnifying 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, 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 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 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
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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
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 Stockholder including Registrable
Shares in any registration shall furnish to the Company such information
regarding such Stockholder and the distribution proposed by such
Stockholder 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 Rule 144 Requirements. After the earliest of (i) the closing of
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(c) of the Securities Act and the
Exchange Act (at any time after it has become subject to such
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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.
2.9 Termination. All of the Company's obligations to register
Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall
terminate five years after the closing of the Initial Public Offering.
3. Transfers of Rights. This Agreement, and the rights and obligations of
Banyan hereunder, may not be assigned by Banyan except that (i) Banyan may
assign this Agreement, and its rights and obligations hereunder, to any person
to which at least 3,600,000 Shares are validly transferred by Banyan and (ii)
any other person to which Shares are validly transferred shall be deemed a
"Stockholder" 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.
4. General.
(a) 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.
(b) 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, Banyan
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 construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
(d) 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:
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If to the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer, or at such other address or addresses as may have been
furnished in writing by the Company to Banyan.
If to Banyan, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer, or at such other address or addresses as may have been
furnished to the Company in writing by Banyan.
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 not 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.
(e) Entire 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, and the holders of a
majority of the Registrable Shares; 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.
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(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 signature.
(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.
Executed as of the date first written above.
COMPANY:
SWITCHBOARD INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: V.P. & Chief Financial Officer
PURCHASER:
BANYAN SYSTEMS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: S.V.P. & C.F.O.
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