<PAGE>
As filed with the Securities and Exchange Commission on November 18, 1999
Registration No. 333-90013
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
AMENDMENT NO. 1
To
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
SWITCHBOARD INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
------------------
<TABLE>
<S> <C>
Delaware 7375 04-3321134
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
</TABLE>
115 Flanders Road
Westboro, Massachusetts 01581
(508) 898-1122
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
------------------
Dean Polnerow
President
SWITCHBOARD INCORPORATED
115 Flanders Road
Westboro, Massachusetts 01581
(508) 898-1122
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
------------------
Copies to:
<TABLE>
<S> <C>
Mark G. Borden Brian D. Goldstein
Virginia K. Kapner Testa, Hurwitz & Thibeault, LLP
Hale and Dorr LLP 125 High Street
60 State Street Boston, Massachusetts 02110
Boston, Massachusetts 02109 Telephone: (617) 248-7000
Telephone: (617) 526-6000 Telecopy: (617) 248-7100
Telecopy: (617) 526-5000
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date hereof.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Registrant's Registration Statement on Form S-1
(Commission File No. 333-90013) is being filed solely for the purpose of filing
Exhibits 10.10, 10.21 and 10.22 thereto.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses, all of which will be
borne by the Registrant, in connection with the sale and distribution of the
securities being registered, other than the underwriting discounts and
commissions. All amounts shown are estimates except for the Securities and
Exchange Commission registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $16,680
NASD filing fee.................................................. 6,500
Nasdaq National Market listing fee...............................
Blue Sky fees and expenses.......................................
Transfer Agent and Registrar fees................................
Accounting fees and expenses.....................................
Legal fees and expenses..........................................
[Director and Officer Liability Insurance].......................
Printing and mailing expenses....................................
Miscellaneous....................................................
-------
Total.......................................................... $
=======
</TABLE>
Item 14. Indemnification of Directors and Officers
Article SEVENTH of the Registrant's amended and restated certificate of
incorporation provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation Law prohibits the
elimination or limitation of liability of directors for breach of fiduciary
duty.
Article EIGHTH of the Registrant's amended and restated certificate of
incorporation provides that a director or officer of the Registrant:
(a) shall be indemnified by the Registrant against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement incurred in
connection with any litigation or other legal proceeding (other than an action
by or in the right of the Registrant) brought against him by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with any
action by or in the right of the Registrant brought against him by virtue of
his position as a director or officer of the Registrant if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, except that no indemnification shall be made
with respect to any matter as to which such person shall have been adjudged to
be liable to the Registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has
been successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
the Registrant against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer at
his request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
II-1
<PAGE>
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director
or officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article EIGHTH of the Registrant's amended and restated certificate of
incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors or officers
the Registrant must indemnify those persons to the fullest extent permitted by
such law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent
of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding, if such
person had no reasonable cause to believe his conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
Under the Underwriting Agreement, the underwriters are obligated, under
certain circumstances, to indemnify directors and officers of the Registrant
against certain liabilities, including liabilities under the Securities Act.
Reference is made to the form of Underwriting Agreement filed as Exhibit 1
hereto.
Item 15. Recent Sales of Unregistered Securities
Certain Sales of Securities. Since July 1996, the Registrant has issued the
following securities that were not registered under the Securities Act, as
summarized below.
(a) Issuances of capital stock.
1. On April 18, 1996, the Registrant issued and sold 10 shares of its
common stock to Banyan Worldwide for nominal consideration, in
connection with its formation.
2. On November 5, 1996, the Registrant issued and sold 6,999,990 shares
of its common stock to Banyan Worldwide in consideration for the
transfer of its core technologies and other assets.
3. On November 5, 1996, the Registrant issued and sold an aggregate of
750,000 shares of its Series A Convertible Preferred Stock, $0.01 par
value per share, to Digital City Inc. and America Online, Inc.
(375,000 shares to each entity) for an aggregate purchase price of
$3,000,000, pursuant to a Series A Preferred Stock Purchase Agreement.
4. On May 4, 1999, the Registrant issued and sold 140,000 shares of its
common stock to Continuum Software Inc. in consideration for delivery
of a subsequent technology release Marketing Agreement, dated as of
November 7, 1997.
5. On June 30, 1999, the Registrant issued and sold 7,463,216 shares of
its common stock and one share of its Series E Special Voting
Preferred Stock to CBS Corporation for consideration of $5
II-2
<PAGE>
million in cash, advertising and promotion value and a license to use
the "CBS" trademarks, and "eye" device pursuant to a Common Stock and
Warrant Purchase Agreement.
6. On June 30, 1999, the Registrant issued 2,655,916 shares of its Series
C Convertible Preferred Stock to Banyan Worldwide in connection with
the conversion of a Convertible Secured Note issued by the Registrant
on August 29, 1997, with a principal and interest balance of
$10,623,664 on the date of conversion.
7. On June 30, 1999, the Registrant issued 87,345 shares of its Series D
Convertible Preferred Stock to Banyan Worldwide in connection with the
conversion of a Convertible Secured Note issued by the Registrant on
May 3, 1999, with a principal and interest balance of $655,089 on the
date of conversion.
8. On July 21, 1999, the Registrant issued 1,875 shares of its common
stock to an executive search firm pursuant to a stock option exercise,
for a purchase price of $15,000.
9. Since January 1998, the Registrant has issued and sold 53,499 shares
of common stock to employees of the Registrant pursuant to stock
option exercises, for an aggregate purchase price of $77,185.
(b) Stock option grants.
Since the adoption of the 1996 Stock Incentive Plan, the Registrant
granted options to purchase an aggregate of 2,929,600 shares of its common
stock, net of cancellations of 661,851 options and exercises of 55,374 options
at a per share weighted average exercise price of $1.66.
(c) Grants of other securities.
1. On December 31, 1997, the Registrant issued a common stock purchase
warrant to Continuum Software Inc. to purchase 300,000 shares of its
common stock at an exercise price of $2.00 per share.
2. On March 31, 1999, the Registrant issued a common stock purchase
warrant to US West Dex, Inc. to purchase 96,250 shares of its common
stock at an exercise price of $8.00 per share.
3. On March 31, 1999, the Registrant issued a common stock purchase
warrant to Ameritech Interactive Media, Inc. to purchase 96,250 shares
of its common stock at an exercise price of $8.00 per share.
4. On March 31, 1999, the Registrant issued a common stock purchase
warrant to Intelligent Media Ventures, Inc. to purchase 96,250 shares
of its common stock at an exercise price of $8.00 per share.
5. On April 13, 1999, the Registrant issued a common stock purchase
warrant to SBC Communications Inc. to purchase 96,250 shares of its
common stock at an exercise price of $8.00.
6. On June 30, 1999, the Registrant issued a common stock purchase
warrant to CBS Corporation to purchase 1,066,174 shares of its common
stock at an exercise price of $1.00 per share.
No underwriters were involved in any of the foregoing sales of securities.
Such sales were made in reliance upon an exemption from the registration
provisions of the Securities Act set forth in Section 4(2) thereof relative to
sales by an issuer not involving any public offering or the rules and
regulations thereunder, or, in the case of the options to purchase common
stock described in paragraph (b) above, Rule 701 of the Securities Act. All of
the foregoing securities are deemed restricted securities for the purposes of
the Securities Act.
II-3
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of the Registrant, as amended.
3.2* Amended and Restated Certificate of Incorporation of the Registrant.
3.3* Amended and Restated By-Laws of the Registrant.
4* Specimen certificate for shares of Common Stock, $0.01 par value per
share, of the Registrant.
5* Opinion of Hale and Dorr LLP.
10.1** 1996 Stock Incentive Plan, as amended, including forms of stock option
agreement for incentive and nonstatutory stock options.
10.2** 1999 Stock Incentive Plan, including forms of stock option agreement
for incentive and nonstatutory stock options.
10.3** 1999 Employee Stock Purchase Plan.
10.4** Common Stock and Warrant Purchase Agreement, as amended, by and among
Switchboard Incorporated, Banyan Worldwide and CBS Corporation, dated
June 1, 1999 (Incorporated herein by reference to Exhibit 10.1 of
Banyan System Incorporated's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, File No. 000-20364, filed August 16, 1999
(the "August 16, 1999 Banyan Worldwide 10-Q")).
10.5** Advertising and Promotion Agreement by and among Switchboard
Incorporated, Banyan Worldwide and CBS Corporation, dated June 30,
1999 (Incorporated by reference to Exhibit 10.3 of the August 16, 1999
Banyan Worldwide 10-Q).
10.6** License Agreement by and between Switchboard Incorporated and CBS
Corporation, dated June 30, 1999 (Incorporated by reference to Exhibit
10.4 of the August 16, 1999 Banyan Worldwide 10-Q).
10.7** Common Stock Purchase Warrant issued by Switchboard Incorporated to
CBS Corporation, dated June 30, 1999 (Incorporated by reference to
Exhibit 10.2 of the August 16, 1999 Banyan Worldwide 10-Q).
10.8** Registration Rights Agreement by and between Switchboard Incorporated
and CBS Corporation, dated June 30, 1999.
10.9** Right of First Refusal Agreement by and among Switchboard
Incorporated, Banyan Worldwide and CBS Corporation, dated June 30,
1999.
10.10 Participation Agreement by and among Switchboard Incorporated, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.11** Stockholders' Voting Agreement by and among Switchboard Incorporated,
Banyan Worldwide and CBS Corporation, dated June 30, 1999.
10.12** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Continuum Software Inc., dated December 31, 1997.
10.13** Registration Rights Agreement by and between Switchboard Incorporated
and Continuum Software Inc., dated December 31, 1997.
10.14** Common Stock Purchase Warrant issued by Switchboard Incorporated to US
WEST Dex, Inc., dated March 31, 1999.
10.15** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Ameritech Interactive Media, Inc., dated March 31, 1999.
10.16** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Intelligent Media Ventures, Inc., dated March 31, 1999.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.17** Common Stock Purchase Warrant issued by Switchboard Incorporated to
SBC Communications Inc., dated April 13, 1999.
10.18** Amended and Restated Registration Rights Agreement, as amended, by and
among Switchboard Incorporated, America Online, Inc., Digital City
Inc. and Banyan Worldwide, dated February 20, 1998.
10.19** Amended and Restated Registration Rights Agreement by and between
Switchboard Incorporated and Banyan Worldwide, dated May 3, 1999.
10.20** Services Agreement between Switchboard Incorporated and Banyan
Worldwide, dated November 1, 1996.
10.21+ Database License Agreement, as amended, by and between Switchboard
Incorporated and infoUSA Inc., dated December 31, 1997.
10.22+ Internet Provider Agreement, as amended, by and between Switchboard
Incorporated and Etak, Inc., dated November 25, 1996.
21** Subsidiaries of the Registrant.
23.1** Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Hale and Dorr LLP (included in Exhibit 5).
24** Power of Attorney (included on page II-8).
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to a Confidential Treatment Request.
(b) Financial Statement Schedules
All other schedules have been omitted because they are not required or
because the required information is given in the Registrant's consolidated
financial statements or notes to those statements.
II-5
<PAGE>
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions contained in the Amended and Restated
Certificate of Incorporation of the Registrant and the laws of the State of
Delaware, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
II-6
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
Boston, Massachusetts, on this 18th day of November, 1999.
Switchboard Incorporated
By:/s/ John P. Jewett
-----------------------------------
John P. Jewett
Vice President and Chief
Financial Officer
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer November 18, 1999
______________________________________ (Principal Executive
Douglas J. Greenlaw Officer)
* President and Director November 18, 1999
______________________________________
Dean Polnerow
/s/ John P. Jewett Vice President, Chief November 18, 1999
______________________________________ Financial Officer,
John P. Jewett Treasurer and Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
* Chairman of the Board of November 18, 1999
______________________________________ Directors
William P. Ferry
* Director November 18, 1999
______________________________________
Richard M. Spaulding
* Director November 18, 1999
______________________________________
David N. Strohm
* Director November 18, 1999
______________________________________
Robert M. Wadsworth
* Director November 18, 1999
_____________________________________
Fredric G. Reynolds
* Director November 18, 1999
______________________________________
Daniel R. Mason
*By: /s/ John P. Jewett
_________________________________
John P. Jewett
Attorney-in-Fact
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of the Registrant, as amended.
3.2* Amended and Restated Certificate of Incorporation of the Registrant.
3.3* Amended and Restated By-Laws of the Registrant.
4* Specimen certificate for shares of Common Stock, $0.01 par value per
share, of the Registrant.
5* Opinion of Hale and Dorr LLP.
10.1** 1996 Stock Incentive Plan, as amended, including forms of stock option
agreement for incentive and nonstatutory stock options.
10.2** 1999 Stock Incentive Plan, including forms of stock option agreement
for incentive and nonstatutory stock options.
10.3** 1999 Employee Stock Purchase Plan.
10.4** Common Stock and Warrant Purchase Agreement, as amended, by and among
Switchboard Incorporated, Banyan Worldwide and CBS Corporation, dated
June 1, 1999 (Incorporated herein by reference to Exhibit 10.1 of
Banyan System Incorporated's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, File No. 000-20364, filed August 16, 1999
(the "August 16, 1999 Banyan Worldwide 10-Q")).
10.5** Advertising and Promotion Agreement by and among Switchboard
Incorporated, Banyan Worldwide and CBS Corporation, dated June 30,
1999 (Incorporated by reference to Exhibit 10.3 of the August 16, 1999
Banyan Worldwide 10-Q).
10.6** License Agreement by and between Switchboard Incorporated and CBS
Corporation, dated June 30, 1999 (Incorporated by reference to Exhibit
10.4 of the August 16, 1999 Banyan Worldwide 10-Q).
10.7** Common Stock Purchase Warrant issued by Switchboard Incorporated to
CBS Corporation, dated June 30, 1999 (Incorporated by reference to
Exhibit 10.2 of the August 16, 1999 Banyan Worldwide 10-Q).
10.8** Registration Rights Agreement by and between Switchboard Incorporated
and CBS Corporation, dated June 30, 1999.
10.9** Right of First Refusal Agreement by and among Switchboard
Incorporated, Banyan Worldwide and CBS Corporation, dated June 30,
1999.
10.10 Participation Agreement by and among Switchboard Incorporated, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.11** Stockholders' Voting Agreement by and among Switchboard Incorporated,
Banyan Worldwide and CBS Corporation, dated June 30, 1999.
10.12** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Continuum Software Inc., dated December 31, 1997.
10.13** Registration Rights Agreement by and between Switchboard Incorporated
and Continuum Software Inc., dated December 31, 1997.
10.14** Common Stock Purchase Warrant issued by Switchboard Incorporated to US
WEST Dex, Inc., dated March 31, 1999.
10.15** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Ameritech Interactive Media, Inc., dated March 31, 1999.
10.16** Common Stock Purchase Warrant issued by Switchboard Incorporated to
Intelligent Media Ventures, Inc., dated March 31, 1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.17** Common Stock Purchase Warrant issued by Switchboard Incorporated to
SBC Communications Inc., dated April 13, 1999.
10.18** Amended and Restated Registration Rights Agreement, as amended, by and
among Switchboard Incorporated, America Online, Inc., Digital City
Inc. and Banyan Worldwide, dated February 20, 1998.
10.19** Amended and Restated Registration Rights Agreement by and between
Switchboard Incorporated and Banyan Worldwide, dated May 3, 1999.
10.20** Services Agreement between Switchboard Incorporated and Banyan
Worldwide, dated November 1, 1996.
10.21+ Database License Agreement, as amended, by and between Switchboard
Incorporated and infoUSA Inc., dated December 31, 1997.
10.22+ Internet Provider Agreement, as amended, by and between Switchboard
Incorporated and Etak, Inc., dated November 25, 1996.
21** Subsidiaries of the Registrant.
23.1** Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Hale and Dorr LLP (included in Exhibit 5).
24** Power of Attorney (included on page II-8).
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to a Confidential Treatment Request.
<PAGE>
Exhibit 10.10
-------------
PARTICIPATION AGREEMENT
-----------------------
This Participation Agreement (this "Agreement") dated as of June 30, 1999
is entered into by and among Switchboard Incorporated, a Delaware corporation
(the "Company"), Banyan Systems Incorporated, a Massachusetts corporation
("Banyan"), and CBS Corporation, a Pennsylvania corporation ("CBS"). Banyan and
CBS are together referred to herein as the "Purchasers," and are sometimes
individually referred to herein each as a "Purchaser."
Recitals
--------
WHEREAS, the Company, Banyan and CBS are parties to a Common Stock and
Warrant Purchase Agreement of even date herewith (the "Purchase Agreement")
pursuant to which CBS is acquiring certain shares of Common Stock and a warrant
to purchase shares of Common Stock;
WHEREAS, Banyan is a stockholder of the Company; and
WHEREAS, the parties desire to provide for certain arrangements with
respect to CBS' and Banyan's right to purchase shares of Common Stock of the
Company simultaneously with the Company's initial public offering;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, 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 at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of
------------
the Company.
"Initial Public Offering" means an initial underwritten public
-----------------------
offering of shares of Common Stock pursuant to an effective Registration
Statement under the Securities Act in which the Company, prior to giving effect
to the proceeds of such offering, is valued at at least $135,000,000 (determined
by multiplying the number of outstanding shares of capital stock of the Company
on a fully diluted basis by the per
<PAGE>
share initial public offering price) and resulting in at least $15,000,000 of
net proceeds (determined by subtracting underwriters' discounts and commissions
from gross proceeds) to the Company.
"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).
"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.
2. Participation Right.
-------------------
2.1 Rights of CBS.
-------------
(a) Except as (and to the extent) prohibited by law, the Company
shall (i) provide CBS with written notice pursuant to Rule 134 or Rule 135
promulgated under the Securities Act (or any successor rule thereto) of the
Company's proposed Initial Public Offering (the "Notice") and (ii) use its
reasonable best efforts to issue and sell to CBS, simultaneously with the
closing of the Initial Public Offering, such whole number of shares of Common
Stock, if any, as would be necessary to increase CBS' ownership of Common Stock,
warrants and other securities of the Company to an amount that would most
closely result in CBS owning 37.5% of the outstanding Common Stock on a fully
diluted basis upon the closing of the Initial Public Offering (after taking into
account whether any other person with rights similar to the rights granted
herein to CBS, including, without limitation, Banyan, elects to purchase shares,
and taking into account any shares issued by the Company in the Initial Public
Offering to persons without such rights). For purposes of this Agreement, "fully
diluted" shall mean assuming the conversion into Common Stock of all convertible
securities and the exercise of all outstanding vested and unvested options and
warrants. The Notice shall be given no later than ten (10) days after the filing
with the Commission of the Registration Statement for the Initial Public
Offering.
(b) CBS must notify the Company within ten (10) days of the date
of the Notice if CBS has a non-binding interest in purchasing any shares. If CBS
remains interested in purchasing shares, CBS and the Company will execute a
stock purchase agreement in substantially the form attached hereto as Exhibit A
---------
on the date the Company enters into an underwriting agreement relating to the
Initial Public
-2-
<PAGE>
Offering. If CBS informs the Company that it does not have an interest in
purchasing any shares or fails to respond within such 10 day period, then CBS'
rights under this Agreement shall expire.
(c) If CBS has executed with the Company such a stock purchase
agreement, upon the closing of the Initial Public Offering, CBS shall purchase
from the Company, and the Company shall issue and sell to CBS, the number of
shares of Common Stock that CBS is entitled to purchase pursuant thereto.
2.2 Rights of Banyan.
----------------
(a) Except as (and to the extent) prohibited by law, the Company
shall (i) provide Banyan with the Notice and (ii) use its reasonable best
efforts to issue and sell to Banyan, simultaneously with the closing of the
Initial Public Offering, such whole number of shares of Common Stock, if any, as
would be necessary to increase the Banyan's ownership of Common Stock, warrants
and other securities of the Company to an amount that would most closely result
in Banyan owning 37.5% of the outstanding Common Stock on a fully diluted basis
upon the closing of the Initial Public Offering (after taking into account
whether any other person with rights similar to the rights granted herein to
Banyan, including, without limitation, CBS, elects to purchase shares, and
taking into account any shares issued by the Company in the Initial Public
Offering to persons without such rights). The Notice shall be given no later
than ten (10) days after the filing with the Commission of the Registration
Statement for the Initial Public Offering.
(b) Banyan must notify the Company within ten (10) days of the
date of the Notice if Banyan has a non-binding interest in purchasing any
shares. If Banyan remains interested in purchasing shares, Banyan and the
Company will execute a stock purchase agreement in substantially the form
attached hereto as Exhibit A on the date the Company enters into an underwriting
---------
agreement relating to the Initial Public Offering. If Banyan informs the Company
that it does not have an interest in purchasing any shares or fails to respond
within such 10 day period, then Banyan's rights under this Agreement shall
expire.
(c) If Banyan has executed with the Company such a stock
purchase agreement, upon the closing of the Initial Public Offering, Banyan
shall purchase from the Company, and the Company shall issue and sell to Banyan,
the number of shares of Common Stock that Banyan is entitled to purchase
pursuant thereto.
2.3 Limitations. The Company's obligations in Sections 2.1 and 2.2
-----------
of this Agreement, including any obligations to provide the Notice and issue and
sell
-3-
<PAGE>
shares of Common Stock to CBS and/or Banyan, are subject in all respects to the
managing underwriter of the Initial Public Offering determining in its sole
discretion that the Company's fulfillment of such obligations will have no
adverse impact on the Initial Public Offering, including, without limitation,
the offering price, offering size, likelihood of completion or completion date.
2.4 Termination. This Agreement shall terminate upon the first to
-----------
occur of the following events:
(a) The sale of all or substantially all of the assets or
business of the Company, by merger, sale of assets or otherwise;
(b) The termination of the Advertising and Promotion Agreement
dated the date hereof between the Company and CBS by the Company by reason of a
breach by CBS of such agreement;
(c) The termination of the Licensing Agreement dated the date
hereof between the Company and CBS by the Company by reason of a breach by CBS
of such agreement; or
(d) The consummation by the Company of an initial public
offering of shares of Common Stock pursuant to an effective Registration
Statement under the Securities Act in which the Company, prior to giving effect
to the proceeds of such offering, is valued at less than $135,000,000
(determined by multiplying the number of outstanding shares of capital stock of
the Company on a fully diluted basis by the per share initial public offering
price) and/or resulting in less than $15,000,000 of net proceeds (determined by
subtracting underwriters' discounts and commissions from gross proceeds) to the
Company.
2.5 Private Placement. To the extent permitted by law, at the
-----------------
request of a Purchaser, the Company will use its reasonable best efforts to
structure the issuance and sale of Common Stock contemplated by this Agreement
as a private placement transaction.
3. Transfers of Rights. This Agreement, and the rights and obligations
-------------------
of CBS and Banyan hereunder, may not be assigned by CBS or Banyan; provided,
--------
however, that, notwithstanding the foregoing, a Purchaser may assign its rights
- -------
and obligations under the Agreement to any entity controlling, controlled by or
under common control of such Purchaser if (1) written notice of such action is
provided to the Company and the other Purchaser, (2) the transferee agrees in
writing as part of such notice to be bound by this Agreement.
-4-
<PAGE>
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, each Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of New York (without
reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
-------
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 115 Flanders Road, Westboro, MA 01581, Attention:
Chief Financial Officer, or at such other address or addresses as may have been
furnished in writing by the Company to the Purchasers, with a copy to the
Company at the foregoing address, Attention: General Counsel, and with a copy to
Hale and Dorr LLP, 60 State Street, Boston, MA 02109, Attention: Mark G.
Borden, Esq.;
If to Banyan, at 120 Flanders Road, Westboro, MA 01581, Attention: Chief
Financial Officer, or at such other address or addresses as may have been
furnished to the Company and the Purchaser in writing by Banyan, with a copy to
Hale and Dorr LLP, 60 State Street, Boston, MA 02109, Attention: Mark G.
Borden, Esq.; or
If to CBS, at CBS Corporation, 51 West 52nd Street, New York, NY 10019,
Attention: Chief Financial Officer, or at such other address or addresses as may
have been furnished to the Company in writing by CBS, with a copy to CBS
Corporation, 51 West 52nd Street, New York, NY 10019, Attention: General
Counsel.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such
-5-
<PAGE>
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) Complete Agreement. This Agreement constitutes the entire
------------------
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
(f) Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Purchasers. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
(g) Pronouns. Whenever the context may require, any pronouns
--------
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(i) Section Headings. The section headings are for the
----------------
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
[signatures on following page]
-6-
<PAGE>
Executed as of the date first written above.
SWITCHBOARD INCORPORATED
By: /s/ Dean Polnerow
--------------------------------------------
Name: Dean Polnerow
Title: President
BANYAN SYSTEMS INCORPORATED
By: /s/ Richard M. Spaulding
--------------------------------------------
Name: Richard M. Spaulding
Title: Vice President & CFO
CBS CORPORATION
By: /s/ Fredric G. Reynolds
--------------------------------------------
Name: Fredric G. Reynolds
Title: Executive Vice President
and Chief Financial Officer
(signature page to participation agreement)
-7-
<PAGE>
EXHIBIT 10.21
-------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
DATABASE LICENSE AGREEMENT
This AGREEMENT made and entered into as of December 31, 1997 (the
"Effective Date") by and between American Business Information, Inc.(R) ("ABI"),
a Delaware corporation, and Switchboard Incorporated ("LICENSEE"), a Delaware
corporation.
WHEREAS, ABI owns a proprietary database as defined in paragraph 1 of this
AGREEMENT containing information on businesses and individuals in the United
States and desires to license this database on the terms provided in this
AGREEMENT.
WHEREAS, the LICENSEE desires to license ABI's database on the terms provided in
this Agreement.
Now therefore the parties mutually agree as follows:
1. DEFINITIONS.
-----------
1.1 ABI DATABASE refers to:
a) a national database of approximately 10 million businesses in the
United States with data elements described in APPENDIX A, Attachment A
and any additional data elements which may be added from time to time
at ABI's sole discretion; and
b) a national database of approximately 115,000,000 individuals in the
United States with data elements described in APPENDIX A, Attachment B
and any additional data elements which may be added from time to time
at ABI's sole discretion.
1.2 USER refers to any company, organization or individual which has access to
the SERVICE for its own internal use through LICENSEE under the terms of
this AGREEMENT.
1.3 LICENSE FEES refers to the fees due ABI for the use of the ABI DATABASE as
provided in paragraph 3 below, and fully described in APPENDIX B.
1.4 SERVICE refers to:
a) LICENSEE's internet-based directory service known as Switchboard,
which includes a free business and residential telephone look-up
SERVICE for USERS, including as such services may be accessed through
or from any third party web site or interfaces, co-branded or
otherwise which will display information from the ABI DATABASE
pursuant to the terms of this Agreement. In the event that any third
party web site or interface is constructed in partnership with
Switchboard, the web site or
1
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions
interface shall include Switchboard brand identification. USERS may
search the ABI DATABASE through the SERVICE by business name or
business category within a state, city, zip code or local proximity.
In addition, business name searches can be conducted on a nationwide
basis. Nationwide business name searches are subject to the further
restrictions as outlined in APPENDIX D section D1.1B. Business search
results may show up to, but not exceed [**] search results per screen.
Users may search the ABI DATABASE through the SERVICE by individual
name within the United States, state, city, zip code. Individual
search results may show up to, but not exceed [**] listings per
screen. In the event LICENSEE's competitors show more than [**]
listings per screen and, in LICENSEE's sole discretion, this becomes a
competitive threat to LICENSEE, ABI agrees to work with LICENSEE to
relax this restriction to eliminate the competitive threat.
b) SERVICE also includes additional enhanced SERVICES which may be
developed by LICENSEE allowing access to information in the ABI
DATABASE through data access mechanisms, including but not limited to
Lightweight Directory Assistance and Protocol Directory Assistance, as
well as Intranet Directory Assistance for corporate USERS subject to
the terms outlined in paragraph 2.2 herein.
2. LICENSE.
-------
2.1 Subject to the terms and conditions of this AGREEMENT, ABI grants the
LICENSEE a limited non-exclusive, non-transferable license during the term
of this AGREEMENT to incorporate the ABI DATABASE into the SERVICE in the
manner described in paragraph 1.4.a. above and to allow USERS to access the
ABI DATABASE through the SERVICE for USERS' internal purposes only.
In the event that LICENSEE develops additional SERVICES as described in
paragraph 1.4.b. above, Switchboard shall compensate ABI for additional use
of the ABI DATABASE by
a) paying ABI [**] of the "net revenue" derived by Switchboard from
such additional Services which return results from the ABI Database of
individuals pursuant to Section 1.1b and
b) payments to be mutually agreed upon from such additional services
which return results from the ABI Database of businesses pursuant to
Section 1.1a.
For the purposes of the preceding sentences, "net revenue" shall mean
Switchboard's revenue from such additional Services less any commissions,
fees, revenue splits, uncollectable accounts receivables, and applicable
sales and use taxes in connection therewith.
2
<PAGE>
2.2 Any use of the ABI DATABASE not expressly authorized in this AGREEMENT is
strictly prohibited. Without limiting the generality of the foregoing,
LICENSEE and the USERS are expressly prohibited from (i) sublicensing or
reselling the ABI DATABASE; (ii) [NOTE: THIS COVERED IN SECTION 2.6] using
the ABI DATABASE, in any PRODUCT or SERVICE, or offering it through any
third party, other than as specifically authorized in this AGREEMENT; or
(iii) disassembling, decompiling, reverse engineering, modifying or
otherwise altering the ABI DATABASE, except as required to provide the
SERVICE, or any part thereof without ABI's prior written consent, such
consent may be withheld in ABI's sole discretion.
2.3 LICENSEE acknowledges that any unauthorized use of the ABI DATABASE may
cause irreparable harm and injury to ABI for which there is no adequate
remedy at law. In addition to all other remedies available under this
AGREEMENT, at law or in equity, LICENSEE further agrees that ABI shall be
entitled to seek injunctive relief in the event LICENSEE uses the ABI
DATABASE in violation of the limited license granted hereunder and fails to
cure within thirty (30) days after notice of such violation from ABI.
2.4 LICENSEE agrees to provide appropriate legal notices relevant to the ABI
DATABASE on the SERVICE as reasonably requested by ABI to protect its
rights therein including: "Data provided by American Business Information,
Inc.(R), Omaha, Nebraska, Copyright (C) 1997 All Rights Reserved", and as
further described in APPENDIX C. The LICENSEE must receive ABI's prior
written approval to use any ABI logo, trademark, service mark or trade name
except as mandated in this AGREEMENT.
2.5 LICENSEE shall maintain a system of controls set forth in Appendix D which
are designed to:
(a) Protect the integrity of the ABI DATABASE;
(b) Control access to the ABI DATABASE;
(c) Prevent unauthorized usage of the ABI DATABASE; and
(d) Reasonably ensure that the amount of usage of the ABI DATABASE is
accurately recorded.
2.6 LICENSEE shall:
(a) House the ABI DATABASE on the Internet behind firewalls necessary
to prevent unauthorized usage of the ABI DATABASE.
(b) Allow ABI access to its computers, software, and technicians as
reasonably necessary and upon reasonable prior notice to insure
and confirm that the security designed to prevent unauthorized
usage of the ABI DATABASE by Internet Users is adequate.
Unauthorized usage shall be defined to include any downloading or
printing of the ABI DATABASE in whole or in part (except as to
printing of single listings or listings up to the number stated in
Appendix D)
3
<PAGE>
and any other use which is either expressly prohibited by this
AGREEMENT or not specifically authorized under this AGREEMENT.
(c) Include a policy statement on the LICENSEE's SERVICE which states
that USERS may not use the ABI DATABASE for the purpose of
compiling, enhancing, verifying, or modifying in any way any
mailing list, directory, or other compilation of information
which is sold, rented, published, furnished, or in any other
manner provided to third parties.
3. LICENSEE FEES.
-------------
3.1 The LICENSEE shall pay to ABI LICENSE FEES, and shall promote ABI's Sales
Leads and Business Profiles through Banner Advertising on the SERVICE, as
described in APPENDIX B.
3.2 Within thirty (30) days following the close of each month during the term
of this AGREEMENT, the LICENSEE will supply ABI with a Banner Advertising
Report which documents the actual number of ABI Banner Advertising
impressions which were displayed the previous month.
3.3 Any fees payable under this AGREEMENT by LICENSEE which are not paid when
due shall accrue interest at the annual rate of 10% from the due date until
paid.
3.4 Time is of the essence with respect to LICENSEE's payment of any fees under
this AGREEMENT, and LICENSEE specifically acknowledges that failure to make
payment when due may, at ABI's sole discretion, be treated as a material
breach of this AGREEMENT pursuant to the provisions of paragraph 6.1(a)
herein. In the event this AGREEMENT is terminated for whatever reason,
LICENSEE acknowledges that such termination shall not terminate, diminish
or otherwise affect LICENSEE's obligation to pay any fees as described in
this paragraph 3 and in APPENDIX B which have accrued under this AGREEMENT
up to the date of termination.
4. DELIVERY.
--------
4.1 Time is of the essence with respect to ABI's provision of the initial ABI
DATABASE and updates under this AGREEMENT and ABI specifically acknowledges
that failure to make a delivery thereof when due may, at LICENSEE's sole
discretion, be treated as a material breach of this AGREEMENT pursuant to
the provisions of paragraph 6.1(a) herein. ABI will supply the LICENSEE
with the initial ABI DATABASE within ten (10) working days of the Effective
Date of this AGREEMENT.
4.2 ABI will supply LICENSEE with a monthly updated transaction file containing
new adds, changes, and deletes of the ABI DATABASE throughout the term of
the AGREEMENT. ABI shall not be required to deliver updates pursuant to
this agreement during the period of
4
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
Switchboard's material breach of its payment obligations pursuant to
Section 3, provided that ABI shall provide a current update upon
Switchboard's cure of such breach.
4.3 The ABI DATABASE shall be delivered to and used exclusively at:
Switchboard, Inc.
ATTN: [**]
115 Flanders Road
Westboro, MA 01581
4.4 In the event that ABI achieves the ability to update the ABI DATABASE via
electronic means and as a result could offer more frequent updates than as
provided in paragraph 4.2 above, ABI shall provide LICENSEE access to said
enhanced services.
5. TERM.
----
5.1 The term of this AGREEMENT will be for one (1) year and shall commence on
December 31, 1997 and terminate on December 30, 1998, and shall
automatically renew for successive one year periods unless terminated by
either party with sixty (60) days written notice.
6. TERMINATION.
-----------
6.1 Either party may terminate this AGREEMENT if the other party:
(a) materially breaches any term or condition of this AGREEMENT
(except as provided in paragraph 6.2 of this AGREEMENT) and fails
to remedy such breach within thirty (30) days after written
notice of such breach; or
(b) becomes subject to any receivership, insolvency, bankruptcy,
moratorium or similar proceeding for more than thirty (30) days.
6.2 Switchboard may terminate this AGREEMENT with sixty (60) days written
notice if the quality of data supplied by ABI, as measured according to the
provisions of APPENDIX E of this Agreement, falls below the minimum
thresholds described therein. Any payments due by LICENSEE shall be
prorated in the event that termination is to occur prior to the end of a
calendar quarter.
6.3 Both parties will work together to reach a mutually agreeable solution to
ABI's concerns regarding the unauthorized mining of data associated with
business category searches. In the event a mutually agreeable solution can
not be reached, ABI may terminate this AGREEMENT with ninety (90) days
written notice. Any payments due by LICENSEE shall be prorated in the event
that termination is to occur prior to the end of a calendar quarter.
6.4 Upon termination of this AGREEMENT for any reason, LICENSEE shall (i)
ensure that all copies of the ABI DATABASE and any related data and
information is deleted from its computers and the computers of any service
provider or other third party who processed the
5
<PAGE>
ABI DATABASE for the LICENSEE; (ii) cease any and all use of the ABI
DATABASE; (iii) return all copies, whether in print, tape or other media,
of all or any part of the ABI DATABASE to ABI no later than five (5) days
after termination of this AGREEMENT; and, (iv) certify in writing within
ten (10) days after termination of this AGREEMENT that LICENSEE and its
service providers have deleted or returned to ABI all copies of the ABI
DATABASE.
6.5 Except as otherwise provided in this AGREEMENT, the remedies contained in
this AGREEMENT are in addition to all other remedies available to either
party at law or in equity.
7. PROPRIETARY RIGHTS. The LICENSEE acknowledges that all rights, title and
------------------
interest to the ABI DATABASE, regardless of the form of media in which it
is contained, shall be retained by ABI, subject to the license granted to
LICENSEE hereunder. Notwithstanding the foregoing or any other provision of
this Agreement, as between the parties hereto, LICENSEE owns any changes to
the data made by registered users of LICENSEE's SERVICE; ABI acknowledges
and agrees that (i) LICENSEE may use the ABI DATABASE and/or such modified
data for the purpose of enhancing the utility of the SERVICE for registered
users of the LICENSEE; and (ii) such modifications made by registered users
of LICENSEE's SERVICE shall not be deemed part of the ABI DATABASE,
including as such term is used in this AGREEMENT.
8. CONFIDENTIALITY. Except as required by law or any provision of this
---------------
AGREEMENT (and then only after prior reasonable written notice thereof),
the parties agree during the term of this AGREEMENT and for a period of one
(1) year thereafter to retain in confidence and not disclose to any third
party all confidential information whether tangible or intangible, or
stored electronically or in magnetic media) received from the other party
within the scope of this AGREEMENT, provided that if in tangible form, the
confidential information is marked "Confidential," and that if in oral
form, is identified as confidential at the time of disclosure and
summarized in a writing which identifies such information as confidential
within thirty (30) days after such oral disclosure. Information received
from the other party shall be deemed confidential pursuant to this Section
8 except where the party receiving such disclosures can establish that: (i)
such information was known to the receiving party prior to disclosure by
the other; (ii) such information was known to the public prior to
disclosure to the receiving party, or has become known to the public
through no fault of the receiving party; (iii) such information was
subsequently disclosed to the receiving party by a third party with a
lawful right to make such disclosure without limitation on disclosure; or
(iv) such information was independently developed by the recipient party
without resort to the other party's confidential information. For purposes
of this AGREEMENT, the parties expressly agree that the ABI DATABASE and
its contents are confidential and proprietary to ABI.
6
<PAGE>
9. WARRANTY, DISCLAIMER LIMITATION OF LIABILITY, AND INDEMNIFICATION.
-----------------------------------------------------------------
9.1 ABI represents and warrants that (a) it is authorized to enter into this
Agreement, to grant the licenses and rights and perform its obligations
herein; (b) the ABI DATABASE as licensed herein shall not infringe any
copyrights, patents, trade secrets, or any intellectual property and
privacy rights of any person or entity; (c) the ABI DATABASE is derived
from public sources, that it uses reasonable efforts to screen unlisted
telephone numbers therefrom, and that it will remove such data upon notice
from LICENSEE; and (d) the ABI DATABASE will conform to the quality
standards set forth in Appendix E.
9.2 Except as set forth in Section 9.1, the ABI DATABASE is licensed on an "AS
IS" basis without guarantee. ABI does not guarantee that the ABI DATABASE
will meet the LICENSEE's or USER's requirements; that it will operate in
the combinations, or in the equipment, selected by the LICENSEE or USERs;
or that its operation will be error-free or without interruption.
9.3 LICENSEE represents and warrants that it is authorized to enter into this
AGREEMENT and to perform its obligations herein.
9.4 EXCEPT AS STATED HEREIN, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
9.5 EXCEPT FOR INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9.7, IN NO EVENT
SHALL EITHER PARTY'S LIABILITY HEREUNDER TO THE OTHER PARTY OR THIRD
PARTIES CLAIMING THROUGH SUCH PARTY (WHETHER SUCH CLAIMS ARE BASED IN
CONTRACT, TORT OR OTHERWISE), EXCEED the lesser of TWO HUNDRED THOUSAND
DOLLARS ($200,000) or the amounts paid under this Agreement.
9.6 EXCEPT FOR INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9.7, NEITHER
PARTY SHALL BE LIABLE HEREUNDER TO THE OTHER PARTY OR THIRD PARTIES
CLAIMING THROUGH SUCH PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, OR
INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR ANY CLAIM OR DEMAND OF A
SIMILAR NATURE OR KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9.7 LICENSEE agrees to indemnify and hold ABI harmless from any and all third
party claims, actions, demands, and liability, and from all losses, costs,
or expenses, including reasonable attorneys' fees, in connection therewith
(collectively herein, "Liabilities") which result from the use of the ABI
Database through LICENSEE or from LICENSEE'S breach of the warranties set
forth in Section 9.3, except to the extent in either case that such
Liabilities result from ABI's breach of warranty, negligence, or willful
misconduct.
7
<PAGE>
9.8 ABI agrees to indemnify and hold LICENSEE harmless from any and all third
party claims, actions, demands, liability, and from all losses, costs, or
expenses, including reasonable attorneys' fees, in connection therewith
(collectively herein, "Liabilities") which result from ABI's breach of the
warranties set forth in Section 9.1, except to the extent that such
Liabilities result from LICENSEE's breach of warranty, negligence, or
willful misconduct.
10. FORCE MAJEURE. Neither party shall be responsible for delays or failures in
-------------
performance resulting from acts beyond the reasonable control of such
party. Such acts shall include but not be limited to acts of God, riots,
acts of war, and other disasters.
11. ASSIGNMENTS. Neither party shall assign this AGREEMENT, or any rights or
-----------
obligations hereunder, except to an entity acquiring all or substantially
all of the assets or stock of such party, without the prior written consent
of the other party and any attempt to do so shall be void and of no effect.
This Agreement shall be fully binding on any permitted assigns.
12. MODIFICATION. No modification of this AGREEMENT shall be binding upon the
------------
LICENSEE and ABI unless made in writing and signed by duly authorized
officers of both parties.
13. WHOLE AGREEMENT. This AGREEMENT and any Appendices attached hereto
---------------
constitute the entire agreement between the parties and supersedes all
prior agreements, representations, warranties, statements, promises,
information, arrangements and understandings, whether oral or written,
express or implied, with respect to the subject matter hereof.
14. WAIVERS. The failure of either party to require the performance of any term
-------
or condition of this AGREEMENT, shall not prevent any subsequent
enforcement of this term or condition, nor shall it be deemed a waiver of
any subsequent breach.
15. GOVERNING LAW. This AGREEMENT shall be governed by and construed in
-------------
accordance with the laws of the State of Nebraska, without regard to
Nebraska's conflicts of laws principles.
16. SEVERABILITY. A decision by any court of competent jurisdiction
------------
invalidating or holding unenforceable any part of this AGREEMENT will not
affect the validity and enforceability of any other part of this AGREEMENT.
17. NO THIRD PARTY BENEFICIARIES. This AGREEMENT is made solely and
----------------------------
specifically between and for the benefit of the parties signatory hereto,
and no other person or entity whatsoever shall have any rights, interests
or claims hereunder or be entitled to any benefits under or on account of
this AGREEMENT as a third party beneficiary or otherwise.
18. NOTICES. All correspondence and data deliveries required by this AGREEMENT
-------
shall be addressed as follows:
8
<PAGE>
If to LICENSEE: Dean Polnerow
Senior Vice President
Switchboard, Incorporated
115 Flanders Road
Westboro, MA 01581
with a copy to: Mary Regan
General Counsel
Switchboard Incorporated
115 Flanders Road
Westboro, MA 01581
If to ABI: Bill Kerrey, Sr. Vice President
American Business Information, Inc.
5711 South 86/th/ Circle, Box 27347
Omaha, NE 68127
with a copy to: Michael C. Pallesen, Esq.
Corporate Counsel
American Business Information
5711 South 86/th/ Circle, Box 27347
Omaha, NE 68127
Any notice required shall be given in writing and shall be deemed
effectively given upon personal delivery, deposit in the U.S. post office
as certified or registered mail or deposited in a private next day delivery
service.
19. RELATIONSHIP OF PARTIES. This AGREEMENT does not create a joint venture or
-----------------------
partnership between ABI and the LICENSEE, and each will act independently
of the other. Neither party is empowered to bind or commit the other to any
contract or other obligation.
20. COMPLIANCE. With respect to its rights and obligations pursuant to this
----------
Agreement, each party shall comply with all applicable federal, state and
local laws, rules and regulations.
21. TAXES. LICENSEE shall be responsible to pay all taxes of any type, nature
-----
or description (including, but not limited to, sale, use, gross receipts,
excise, import, export, income and employment taxes); provided, however,
LICENSEE shall not be responsible for any income taxes imposed upon ABI by
any taxing jurisdiction, arising by virtue of the performance of this
AGREEMENT.
9
<PAGE>
READ AND APPROVED
SWITCHBOARD, INCORPORATED AMERICAN BUSINESS INFORMATION, INC.
Signature /s/ Dean Polnerow Signature /s/ Bill Kerrey
Dean Polnerow Bill Kerrey
- ------------- -----------
Name Name
Senior Vice President Senior Vice President
- --------------------- ---------------------
Title Title
12/24/97 12/30/97
- --------------------- ----------------------
Date Date
10
<PAGE>
APPENDIX A
----------
ATTACHMENT A
------------
SWITCHBOARD, INC.
-----------------
DATA ELEMENTS FOR BUSINESS FILE
-------------------------------
Name, Address and City should be mixed "Proper" case. Ascii, Fixed field, 4 MM
dat.
Field Name Length
Business Name/Professional Name 30
Address (Location) 30
City 16
State 2
Zip Code 5
Zip 4 4
Phone 11
Last Name 14
First Name 11
Professional Title 3
Professional Flag 1
primary_sic 6
yellowpage_code 5
franchise_code 6
industry_spec_code 1
filler 1
sec_sic_1 6
sec yellowpage_code_1 5
sec_franchise_code 1 6
sec industry spec_code_1 1
filler 1
sec_sic_2 6
sec_yellowpage_code_2 5
sec_franchise_code_2 6
sec_industry_spec code 2 1
filler 1
sec_sic_3 6
sec_yellowpage_code_3 5
sec_franchise code 3 6
sec_industry_spec_code_3 1
filler 1
sec_sic_4 6
sec yellowpage_code_4 5
sec franchise_code_4 6
sec industry_spec_code_4 1
filler 1
ABI # 9
Note: Code Master File, including Franchise Master and Industry Master is to be
included.
Note: When there are multiple professional names for a business, the entire
record is repeated.
Sort records by city within state, then by company name.
11
<PAGE>
APPENDIX A
----------
ATTACHMENT B
------------
SWITCHBOARD, INC.
-----------------
DATA ELEMENTS FOR WHITE PAGES FILE
----------------------------------
Sequence Number
First Name
Middle Initial
Last Name
Last Name Suffix
Primary Number
Pre Directional
Primary Name: RR, HC, General Delivery, Street Name
Street Suffix
Post Direction
Unit Type
Unit Number
City
State
Zip code
Zip + 4
Phone
Sort Sequence:
- -------------
1. Last Name
2. First Name
3. Middle
4. Last name suffix
5. Balance
Sort by city within state, then by last name
4MM, Ascii, Fixed field.
12
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
APPENDIX B
----------
SWITCHBOARD, INC.
-----------------
LICENSE FEES
------------
LICENSEE shall pay to ABI LICENSE FEES and shall provide Banner Advertising on
its SERVICE as follows:
B.1.1 LICENSEE shall pay an annual database LICENSE FEE of [**] per year.
B.1.2 LICENSEE shall pay the first [**] payment of the LICENSE FEE within thirty
days after the effective date, provide that ABI has delivered the initial ABI
DATABASE to LICENSEE pursuant to Section 4.1. Thereafter, LICENSEE shall make
quarterly payments of [**] in advance of each quarter due and payable on the
last day of the previous calendar quarter for each year of the term of this
AGREEMENT, provided that ABI shall have delivered all monthly updates to
LICENSEE during such quarter and that ABI shall have invoiced LICENSEE for such
payments. If ABI shall not have delivered all monthly updates by such time,
LICENSEE's payment obligation shall be deferred until fifteen (15) days after
all such monthly updates for the quarter have been delivered.
B.2.1 LICENSEE shall display a minimum of [**] impressions (page views) per
month of ABI's Sales Leads and Business Profiles through Banner Advertisements
on its SERVICE throughout the term of this AGREEMENT. ABI and LICENSEE will
discuss the placement of the ABI Banner Advertisements within the LICENSEE'S
SERVICE, however the final determination as to placement of such Banner
Advertisements shall be LICENSEE's.
B.3.1 ABI shall provide to LICENSEE monthly updates of the ABI DATABASE [**] to
LICENSEE.
13
<PAGE>
APPENDIX C
----------
SWITCHBOARD, INC.
-----------------
INTERNET SERVICE
----------------
The following announcements shall appear on all search screens and response
screens:
"Business and Residential Information provided by American Business
Information(R), Omaha, Nebraska, Copyright(C) 1997 All Rights
Reserved."
This announcement shall be hyperlinked to ABI's home page.
Attached are samples of how these buttons shall appear.
14
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
APPENDIX D
----------
SWITCHBOARD INC. DATA MINING PROTECTION
---------------------------------------
D.1.1 LICENSEE agrees to incorporate the following protection measures in
connection with the SERVICE to prevent unauthorized downloading of mailing
information which may harm ABI's business:
A) Each query to the SERVICE shall be broken into a number of
client/server requests. Only a small number of names will be returned per
request to the SERVICE (for example, 8). This shall require repeated calls
to be made to the SERVICE, which slows automated programs down and make
detection of a violation easier.
B) There will be an upper limit on the number of names returned from a
single unmodified query ([**] on residential,[**] on business). Secure
encryption keys with download limits will be issued by the service and
attached to each request to the SERVICE to enforce this limit. The use of
such keys will not require any special action on the part of the USER.
Certain businesses categories will be subject to a further restriction of
[**] records returned. ABI and LICENSEE shall work together to agree upon
the further restricted categories. The parties have already agreed that
Nationwide business name searches will be subject to the [**] record
restriction.
C) SERVICE logs will be continuously generated and will be reviewed
manually or programmatically on a regular basis to look for patterns of
abuse, particularly multiple queries from a single address. LICENSEE
expects to build log analysis tools that can run automatically and flag
potential violations based upon criteria such as frequency of queries from
individual addresses.
D) LICENSEE agrees to work with ABI in good faith throughout the term of
the Agreement to prevent abuse by users attempting to collect names for
the purposes of creating mailing lists, and agrees to implement mutually
agreed upon additional safeguards to prevent such abuse.
15
<PAGE>
APPENDIX E
----------
ABI DATABASE QUALITY STANDARDS
------------------------------
Switchboard will regularly review the quality of the ABI Database as delivered
to Switchboard during the Term of this Agreement. The method for this review is
described below.
1. Switchboard will spot check the ABI Database monthly with each delivery.
Approximately 300 Switchboard members, and approximately 200 businesses will be
chosen at random from a base of approximately 1 million. Members chosen will
have supplied Switchboard with their current address and phone number
information some time within the previous 18 months.
2. Switchboard will use a "reverse lookup" technique to verify the information
in the ABI Database. Using a software tool, Switchboard will input the phone
number in a query and analyze the resulting information for that phone number
from the ABI Database. The results will be scored according to partial and
complete matches.
3. Starting with the third month of this Agreement, if the score negatively
deviates more than 15% in any given month from the average score for all
previous months, Switchboard will do a more comprehensive test on the ABI
Database, using the same technique but with a substantially larger sample size.
4. If the score on the subsequent test negatively deviates more than 15% from
the average score from all previous months, then Switchboard shall notify ABI in
writing of the suspected deficiency in the ABI Database quality.
5. ABI agrees to quickly work with Switchboard to identify the source of the
deficiency and agrees to correct the problem, if one exists, with a new delivery
of the ABI Database within thirty (30) days.
6. If the deficiency cannot be corrected within thirty (30) days, and a mutually
agreeable solution cannot be identified, Switchboard shall have the right to
terminate this Agreement with sixty (60) days written notice to ABI.
16
<PAGE>
AMENDMENT NUMBER ONE (1) TO
DATABASE LICENSE AGREEMENT
This is AMENDMENT Number One (1) (the "AMENDMENT") to the Database License
Agreement, between Switchboard Incorporated (LICENSEE), and infoUSA Inc,
formerly American Business Information, Inc. ("INFOUSA") dated December 31,
1997, (the AGREEMENT) and is effective as of the later of the two signature
dates below (the "Amendment Effective Date").
The parties desire to amend the AGREEMENT to provide, among other things,
for:
(i) An extension of the term of the AGREEMENT through December 31, 1999;
and
(ii) The incorporation of a link to INFOUSA'S LIST EXPRESS products (as
defined below) from LICENSEE'S SERVICE.
The parties hereby agree to the following amendments to the AGREEMENT:
1) Unless otherwise set forth herein,, all capitalized terms shall have the
meanings ascribed to them in the AGREEMENT.
2) The following definition is added to Section 1 of the AGREEMENT:
1.5 LIST EXPRESS allows the USER to purchase data from
the INFOUSA DATABASE in a mailing list format.
3) APPENDIX F, which sets forth the requirement for incorporating INFOUSA's
LIST EXPRESS hyper-linked button to the SERVICE is added to the AGREEMENT
following APPENDIX E. APPENDIX F is attached hereto and incorporated herein
by this reference.
4) Paragraph 1.4 is amended by adding subparagraph c) as follows:
c) With respect to LIST EXPRESS products, the term SERVICE specifically
excludes any third-party websites linking to http://www.switchboard.com,
--------------------------
through co-branded interfaces or otherwise, on which LICENSEE or such third
party does not wish to promote LIST EXPRESS products.
5) Paragraph 2.5 is amended by changing the copyright notice by substituting
infoUSA for American Business Information and the date to 1998, and adding
the following paragraph to Paragraph 2.5:
"In the event that INFOUSA makes reasonable changes to its copyright
or other proprietary legal notices set forth herein, LICENSEE agrees
to incorporate the changes into its SERVICE within thirty (30) days of
INFOUSA's prior written notice of such change."
6) Paragraph 3.1 is amended by changing "ABI's Sales Leads and Business
Profiles" to "INFOUSA's List Express and Profile Express".
1
<PAGE>
7) Paragraph 4.2 is amended and replaced in its entirety as follows:
"INFOUSA will supply LICENSEE with a monthly updated full-file to the
business portion of the INFOUSA DATABASE (the "Business File")
described in Attachment A to APPENDIX A, and a monthly updated full-
file to the residential portion of the INFOUSA DATABASE (the "White
Pages File") described in Attachment B to APPENDIX A throughout the
term of the AGREEMENT. After LICENSEE's notice of its election to have
the Business File delivered in transaction-file form, containing only
new adds, changes and deletes, INFOUSA shall deliver such monthly
updates in such requested transaction-file form, provided that such
election shall take effect no sooner than thirty (30) days after
notice from LICENSEE. LICENSEE will receive transaction-file updates
for the White Pages File when the file becomes available, provided
that LICENSEE has given INFOUSA written notice of its election to
receive the White Pages File in such format. As of the date of
delivery of any updated file pursuant to this Section 4.2, the
delivered portion of the INFOUSA DATABASE shall be as complete and
accurate as that made available by INFOUSA to its own users or other
third parties. INFOUSA shall not be required to deliver updates
pursuant to this AGREEMENT during the period of LICENSEE's material
breach of its payment obligations pursuant to Section 3, provided that
INFOUSA shall provide a current update upon LICENSEE's cure of such
breach."
8) Paragraph 5 is amended and replaced in its entirety to read:
"The term of this AGREEMENT shall commence on December 31, 1997 and
expire on December 31, 1999 and shall automatically renew for
successive one year periods unless terminated by either party with
sixty (60) days written notice."
9) Section 6 is hereby amended by adding the following Paragraph 6.6:
"In the event that either party materially breaches Section B.3.1 of
Appendix B or any provision of Appendix F, in each case as amended by
this Amendment Number One, the other party shall have a right to
terminate only that portion of the AGREEMENT which relates to LIST
EXPRESS products, which shall be deemed to be only the provisions
referenced in this sentence. Breach of such stated provisions shall in
no event be cause for termination of the AGREEMENT. Termination of the
LIST EXPRESS portion of the AGREEMENT shall take effect only after the
non-breaching party provides the breaching party with thirty (30) days
prior written notice of such breach and the breaching party fails to
remedy such breach within such notice period."
10) The following paragraph is added to Section 9 of the AGREEMENT:
9.9. INFOUSA's Internet division will place an opt in function on the
registration screen so that a customer may choose to be included
in regular communications from INFOUSA or SWITCHBOARD. Customer
who opt out will not be included in these solicitations.
11) APPENDIX B is replaced in its entirety with the amended APPENDIX B attached
to this AMENDMENT incorporated herein by this reference.
2
<PAGE>
12) Wherever in the AGREEMENT the name "American Business Information, Inc."
("ABI") appears, the name "infoUSA Inc.", is hereby substituted therefor.
All references to INFOUSA are hereby deemed to be references to infoUSA.
Wherever in the AGREEMENT the term, "ABI DATABASE" appears, the term,
"INFOUSA DATABASE" is hereby substituted therefor.
13) Except as set forth in this AMENDMENT, the AGREEMENT shall remain unchanged
and in full force and effect.
WHEREBY, the parties enter into this AMENDMENT as of the later of the two
signature dates below.
SWITCHBOARD INCORPORATED infoUSA, INC.
Signature /s/ Dean Polnerow Signature /s/ Bill Kerrey
Dean Polnerow Bill Kerrey
- --------------------- ---------------------
Name Name
Senior Vice President Senior Vice President
- --------------------- ---------------------
Title Title
12/24/97 12/30/97
- --------------------- ---------------------
Date Date
3
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
APPENDIX B
----------
SWITCHBOARD, INC.
-----------------
LICENSE FEES
------------
LICENSEE shall pay to INFOUSA LICENSE FEES and shall provide Banner Advertising
on its SERVICE as follows:
B.1.1 LICENSE FEES.
------------
a) LICENSEE shall pay an annual, database LICENSEE FEE of [**] for the
first year of the term of the AGREEMENT. INFOUSA shall provide to
LICENSEE monthly updates of the INFOUSA DATABASE at no additional fee
to LICENSEE.
b) For the second year of the term (12/30/98 - 12/31/99) LICENSEE shall
pay an annual, LICENSE FEE of [**] which includes a monthly update FEE
totaling [**] for the second year term of the AGREEMENT for the
updated versions of the INFOUSA DATABASE described in Paragraph 4.2.
B.1.2 PAYMENT SCHEDULE.
----------------
a) For the first year of the term, LICENSEE shall pay the first [**]
payment of the LICENSE FEE within thirty days after the effective
date, provided that INFOUSA has delivered the initial INFOUSA DATABASE
to LICENSEE pursuant to Section 4.1. Thereafter, LICENSEE shall make
quarterly payments of [**] in advance of each quarter due and payable
on the last day of the previous calendar quarter for each year of the
term of this AGREEMENT, provided that INFOUSA shall have delivered all
monthly updates to LICENSEE during such quarter and that INFOUSA shall
have invoiced LICENSEE for such payments. If INFOUSA has not delivered
all monthly updates by such time, LICENSEE's payment obligation shall
be deferred until fifteen (15) days after all such monthly updates for
the quarter have been delivered.
b) For the second year of the term, LICENSEE shall pay the first [**]
payment of the LICENSE FEE within thirty days after the Amendment
Effective Date. Thereafter, LICENSEE shall make quarterly payments of
[**] in advance of each quarter due and payable on the last day of the
previous calendar quarter for each year of the term of this AGREEMENT,
provided that INFOUSA shall have delivered all monthly updates to
LICENSEE during such quarter and that INFOUSA shall have invoiced
LICENSEE for such payments. If INFOUSA has not delivered all monthly
updates by such time, LICENSEE's payment obligation shall be deferred
until fifteen (15) days after all such monthly updates for the quarter
have been delivered.
4
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
B.2.1 BANNER ADVERTISING.
------------------
LICENSEE shall display an aggregate minimum of [**] impressions (page
views) per month of INFOUSA's List Express and Profile Express through
Banner Advertisements on its SERVICE throughout the term of this
AGREEMENT. INFOUSA and LICENSEE will discuss the placement of the INFOUSA
Banner Advertisements within the LICENSEE'S SERVICE, however the final
determination as to placement of such Banner Advertisements shall be
LICENSEE's.
B.3.1. REVENUE SHARE FOR HYPERLINKED BUTTONS.
-------------------------------------
INFOUSA will pay LICENSEE a royalty of [**] of "Net Revenue" for all
sales generated from the hyperlink to INFOUSA's web-site from the month
in which such net revenues were collected, which payment shall be made
within thirty (30) days after the end of the month such Net Revenues were
collected. "Net Revenue" means the revenue collected by INFOUSA, less any
third-party commissions or fees applicable to such sales. INFOUSA will
report monthly to LICENSEE showing Net Revenue and, in reasonably
sufficient detail, the calculation of royalties due hereunder.
5
<PAGE>
APPENDIX F
----------
SWITCHBOARD, INC.
-----------------
LIST EXPRESS
------------
F.1 HYPER-LINKED ICON
-----------------
The LICENSEE shall post on the screens of its SERVICE the following
"hyperlinked" button for LIST EXPRESS products as set forth below:
For every business category search in the SERVICE, which results in more than
one page of search results, LICENSEE will feature a hyper-linked icon on the
bottom of the second screen of search results. LICENSEE may feature such hyper-
linked icon on other pages of the SERVICE at LICENSEE'S sole discretion.
LICENSEE may change the placement of any hyper-linked icons in connection with
any change to the functionality or look and feel of the SERVICE.
The hyper-linked icon will contain a text message to be agreed upon by both
parties. An example would be "Download All Found Records ($)".
The hyper-linked icon will link the USER'S search criteria and attach to the
following URL: [______] (To be provided by INFOUSA) or, at LICENSEE's election,
to an interim co-branded page hosted by LICENSEE from which a USER can link to
the foregoing URL.
F.2 CO-BRANDED PAGES.
----------------
The hyper-linked icon referenced in APPENDIX F will link USERS to the web pages
hosted by INFOUSA which contain equal branding of LICENSEE and INFOUSA ("
Co-Branded Pages.") All pages accessible to Users directly or indirectly through
such hyper-linked icons shall feature: (i) the co-branding referenced in the
prior sentence, (ii) mutually agreeable navigation buttons allowing Users to
link back to the LICENSEE's SERVICE. Neither the hyperlinked icon described in
Section F.1 above nor the Co-Branded Pages shall allow USERS to link directly or
indirectly to any content on the INFOUSA web site other than content directly
associated with the description, promotion or sale of LIST EXPRESS products.
F.3 SAMPLE SCREEN SHOT(S).
---------------------
Sample screen shots from the Co-Branded Pages are attached hereto as Attachment
A.
F.4 CONTRACTS; BILLING INFORMATION.
------------------------------
All contracts for the sale of LIST EXPRESS products shall be directly between
INFOUSA and USERS. LICENSEE shall not be a party to such contracts. As between
the parties hereto, INFOUSA shall be solely responsible for the performance of
such contracts, and for the billing and collection of amounts due thereunder.
All billing information collected by INFOUSA including USER name, address,
telephone number and email address will be forwarded to LICENSEE on a monthly
basis.
6
<PAGE>
F.5 LICENSEE REPORTING.
------------------
LICENSEE will report monthly to INFOUSA showing total click-through rate from
the hyperlinked icon referenced in paragraph F.1.
7
<PAGE>
FINAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
1999 RENEWAL to
DATABASE LICENSE AGREEMENT
This is a Renewal to the Database License Agreement between Switchboard
Incorporated ("Licensee") and infoUSA Inc ("infoUSA) dated December 31, 1997, as
amended September 28, 1998 (the "Agreement"). This Renewal is effective as of
December 31, 1999 (the "Renewal Effective Date").
The parties desire to renew the Agreement as follows:
1) Unless otherwise set forth herein, all capitalized terms shall have the
meanings ascribed to them in the Agreement. Wherever in the Agreement the
name "American Business Information, Inc." ("ABI") appears, the name
"infoUSA Inc.", is hereby substituted therefor. All references to ABI are
hereby deemed to be references to infoUSA. All references to "License Fees"
hereinafter are referenced as "CPM Royalties". Unless referenced below, all
terms and conditions of the Agreement are unchanged.
2) Paragraphs 1.4 and 1.5, DEFINITIONS, are replaced in their entirety as
follows:
1.4 "SERVICE or "Service" refers to Licensee's Internet directory service
which will incorporate the infoUSA Database as described in Appendix C -
Renewal:
1.5 "Buttons" refers to hyperlinked icons or text links displayed on
Licensee's Service which allow Users access to specified pages of the
infoUSA web site where they can purchase infoUSA products and services
electronically as described in Appendix F -Renewal.
1.6 "Direct Competitor(s)" shall mean [**], and any other parties which
directly compete, as a primary part of their business, with infoUSA in the
data compilation or direct marketing industry, provided that infoUSA has
given Licensee prior written notice during the term of this Agreement that
such parties are to be deemed "Direct Competitors" of infoUSA for the
purposes hereof.
3) Paragraphs 2.1 and 2.5, LICENSE, are replaced in their entirety as follows:
2.1 Subject to the terms and conditions of this AGREEMENT, infoUSA grants
LICENSEE a limited non-exclusive, non-transferable license during the term
of this AGREEMENT to incorporate the infoUSA DATABASE into the SERVICE in
the manner described in Appendix C.
1.5 LICENSEE agrees to provide appropriate legal notices relevant to the
infoUSA DATABASE on the SERVICE as described in Appendix C.
Page 1
<PAGE>
4) Paragraph 2.4 is hereby amended by adding the following paragraph 2.4(a):
"infoUSA acknowledges that its failure to provide the infoUSA Database or any
updates thereto in accordance with the terms of this Agreement may cause
irreparable harm and injury to Licensee for which there is no adequate remedy at
law. In addition to all other remedies available under this Agreement, at law
or in equity, infoUSA further agrees that Licensee shall be entitled to seek
injunctive relief in the event that infoUSA fails to provide the infoUSA
Database or any updates thereto in accordance with the terms hereof and fails to
cure within thirty (30) days after notice of such violation from Licensee."
5) Paragraph 2.7(b) is hereby amended by deleting the second sentence and
replacing it with the following:
"Unauthorized usage shall be defined to include any downloading or printing
of the infoUSA Database in whole or in part (except as expressly authorized by
this Agreement) and any other use which is either expressly prohibited by this
Agreement or not specifically authorized by this Agreement."
6) Paragraphs 3.1 and 3.2 are hereby deleted in its entirety.
7) Paragraph 4.3 is hereby amended by adding to the end:
"provided that Switchboard may use the infoUSA Database at hosting
locations for the primary and back-up Licensee sites for the Service, which
locations are listed on Appendix G. Licensee will provide infoUSA written notice
of any changes or additions to the locations shown on Appendix G.
8) Paragraph 4.4 is deleted in its entirety.
9) Paragraph 5.1, TERM, is replaced in its entirety as follows:
5.1 The term of this AGREEMENT will be for three (3) years and shall commence
on December 31, 1999 and terminate on December 30, 2002 ("Term").
Thereafter, the Agreement shall automatically renew for successive one-year
periods (each a "Renewal Term") unless written notice of non-renewal is given by
either party at least sixty (60) days prior to the expiration of the then-
current Term or Renewal Term.
At least 120 days prior to the expiration of the then-current Term (or Renewal
Term), the parties shall negotiate the terms which will be applicable during the
following Renewal Term.
Page 2
<PAGE>
10) Paragraph 6.3 is hereby deleted in its entirety.
11) The following paragraph 6.6 is added to section 6, TERMINATION:
6.6 infoUSA may terminate this Agreement immediately upon written notice
if Licensee materially and willfully breaches this Agreement by
participating in any unauthorized use of the infoUSA Database, or the
infoUSA Brand Features in a way that significantly harms infoUSA's business
or intellectual property rights, provided that Licensee fails to remedy
such breach within ten (10) days of written notice of such breach, which
notice expressly states that it is given pursuant to this Section 6.6 which
allows only ten (10) days to cure.
Either party may terminate this Agreement with 90 day prior written notice,
if (a) all or substantially all of the assets of Licensee are sold,
assigned or otherwise transferred to a Direct Competitor (as defined in
paragraph 1.6 above) (b) 50% or more of the equity securities or voting
interests of Licensee or the ultimate parent of Licensee is sold, assigned
or otherwise transferred in a single transaction or a series of related
transactions to a Direct Competitor; or (c) Licensee or its ultimate parent
is a party to a merger, consolidation or other similar transaction with a
Direct Competitor.
infoUSA may terminate this Agreement with 90 day prior written notice if
Licensee has materially breached any term or condition of this Agreement on
3 or more occasions in any one year of the Agreement, even if previous
breaches were cured in accordance with the provisions of Paragraph 5.1(a),
provided that infoUSA provided Licensee with written notice of each breach
within a reasonable time after infoUSA's discovery of such breach.
If Licensee feels the quality of the infoUSA Database is less than the
quality of previous versions of the infoUSA Database or than that of a
competitor database, Licensee will provide written notice to infoUSA. Upon
infoUSA's receipt of Licensee's notice, the parties will discuss Licensee's
database issues, and infoUSA will have 90 days from the conclusion of
discussions to remedy the quality issues raised by Licensee, provided that
infoUSA shall use commercially reasonable efforts to remedy such quality
issues as soon as practicable. If, after such 90 day period Licensee is not
satisfied with the improvements made by infoUSA, Licensee may terminate the
Agreement with 90 day prior written notice to infoUSA.
12) Paragraph 9.1 is amended by adding subparagraph (e) as follows:
and (e) infoUSA will provide Licensee the most current, accurate and
complete information infoUSA has available for license.
Paragraph 9.3 is replaced in its entirety as follows:
9.3 Licensee warrants and represents that it (a) it has the necessary
power and authority to enter into and perform its obligations under this
Agreement and has properly authorized the same
Page 3
<PAGE>
by all requisite action; and (b) it has all necessary rights to accept the
license granted to Licensee under this Agreement.
13) Paragraph 9.5 is replaced in its entirety as follows:
EXCEPT FOR INDEMNIFICAITON OBLIGATIONS PURSUANT TO SECTION 9.7, IN NO EVENT
SHALL EITHER PARTY'S LIABILITY HEREUNDER TO THE OTHER PARTY OR THIRD
PARTIES CLAIMING THROUGH SUCH PARTY (WHETHER SUCH CLAIMS ARE BASED IN
CONTRACT, TORT, OR OTHERWISE) EXCEED THE CPM ROYALTIES PAID OR PAYABLE BY
LICENSEE TO INFOUSA DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE
THE CAUSE OF ACTION AROSE.
14) Paragraphs 9.7 and 9.7[sic] are hereby replaced in their entirety as
follows:
8.7 LICENSEE agrees to indemnify, defend and hold infoUSA harmless from
any and all third party claims, actions, demands, and liability, and from
all losses costs, or expenses, including reasonable attorneys' fees, in
connection therewith (collectively herein, "Liabilities") which result from
(i) Licensee's breach of any terms, conditions, or warranties under this
Agreement; or (ii) any infringement or alleged infringement by the Service
(specifically excluding any content provided by infoUSA) of any third
party's trademark, copyright, trade secret, patent, or other intellectual
property right, except to the extent in either case that such Liabilities
result from infoUSA's breach of warranty, negligence, or willful
misconduct.
9.8 infoUSA agrees to indemnify, defend and hold Licensee harmless from any and
all third party claims, actions, demands, and liability, and from all losses
costs, or expenses, including reasonable attorneys' fees, in connection
therewith (collectively herein, "Liabilities") which result from (i) infoUSA's
breach of any terms, conditions, or warranties under this Agreement; or (ii) any
infringement or alleged infringement by the infoUSA Database (specifically
excluding any content provided by Licensee) of any third party's trademark,
copyright, trade secret, patent, or other intellectual property right, except to
the extent in either case that such Liabilities result from Licensee's breach of
warranty, negligence, or willful misconduct.
15) Paragraph 11, ASSIGNMENTS, is replaced in its entirety as follows:
Neither party shall assign this AGREEMENT, or any rights or obligations
hereunder, except to an entity acquiring all or substantially all of the
assets or stock of such party (unless such entity is a "Direct Competitor"
of infoUSA) without the prior written consent of the other party and any
attempt to do so shall be void and of no effect. This Agreement shall be
fully binding on any permitted assigns.
Page 4
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
16) The following changes are made to paragraph 18, NOTICES:
If to Licensee: Switchboard Incorporated
115 Flanders Road
Westboro, MA 01581
Attn: President
Fax No: (508)870-2000
With a copy to: Switchboard Incorporated
115 Flanders Road
Westboro, MA 01581
Attn: General Counsel
Fax No: (508)870-2000
If to infoUSA: infoUSA Inc.
5711 S. 86 Circle
Omaha, NE 68127
Attn: Director, Internet License Division
Fax No.: (402) 331-4950
with a copy to: infoUSA Inc.
5711 S.86 Circle
Omaha, NE 68127
Attn: Corporate Counsel
Fax No.: (402) 537-6197
From time to time, infoUSA receives urgent requests to remove or modify
certain listings. In such cases, Licensee can be contacted via e-mail at
----------
the following address or such other email address provided by Licensee: For
both business and residential: [**] @switchboard.com with a copy to for
business listing updates: bus_and for residential updates:
[email protected].
17) The following Appendices to the Agreement remain unchanged, but are
attached:
Appendix A, Data Elements
Appendix D, Data Mining Protection
Appendix E, infoUSA Database Quality Standards
Page 5
<PAGE>
FINAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
18) The following Appendices to the Agreement are replaced in their entirety or
added to this Renewal:
Appendix B, License Fees is replaced with Appendix B-Renewal, CPM Royalties
& License Fees
Appendix C, Internet Service is replaced with Appendix C-Renewal, Internet
Service
Appendix F, List Express is replaced with Appendix F-Renewal, Merchandizing
Appendix G, Licensee's Hosting Locations
19) Except as set forth in this Renewal, the Agreement shall remain unchanged
and in full force and effect.
In consideration of the foregoing promises and covenants, and for other good
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties enter into this Renewal as of December 31, 1999 ("Renewal Effective
Date").
READ AND APPROVED
Switchboard Incorporated, Licensee infoUSA Inc.
Signature /s/ Dean Polnerow Signature /s/ William J. Chasse
Dean Polnerow William J. Chasse
- ------------- -----------------
Name Name
President President & CEO, infoUSA.com
- --------- ----------------------------
Title (a division of infoUSA Inc.)
Page 6
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
APPENDIX B - RENEWAL
SWITCHBOARD, INC.
CPM ROYALTIES
-------------
Licensee shall pay to infoUSA CPM Royalties as follows:
1) CPM ROYALTIES: Subject to adjustment in accordance with Section 2 below,
Licensee shall pay infoUSA "CPM Royalties" based on the number of "Pages"
as displayed to Users of the Service. "Page" is defined as any display of
[**] Listings (as defined in Appendix C.1a - c), specifically excluding any
web pages or other displays accessed through clicking on a Listing. For
each Page viewed, Licensee will pay infoUSA:
a) For the Service (other than as set forth in Paragraph 1(b) below:
Less than [**] in CPM Royalties: [**] per thousand)
More than [**] in CPM Royalties: [**] per thousand)
b) For Wireless and XML Applications (as defined in C.1.d of appendix
C):
[**] per thousand)
2) MINIMUM CPM ROYALTIES AND CAP: If the CPM Royalties otherwise payable
pursuant to Section 1 are less than the applicable Annual Minimum Royalties
set forth in this Paragraph, Licensee shall be obligated to pay the
applicable Annual Minimum Royalties. If the CPM Royalties otherwise payable
pursuant to Section 1 are more than the applicable Annual Minimum
Royalties, then Licensee shall pay the CPM Royalties as calculated pursuant
to Section 1, but only up to, and not exceeding, the applicable Annual Cap
set forth in this Paragraph.
Annual Annual Quarterly
Year Minimum Royalty Minimum
Royalties Cap Payment
----------------------------------------
1 [**] [**] [**]
2 [**] [**] [**]
3* [**] [**] [**]
*The parties may review and renegotiate the Annual Minimum CPM
Royalties and Annual Cap prior to the second anniversary of the
Renewal Effective Date of this Agreement.
Page 7
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
3) PAYMENT OF CPM ROYALTIES. Licensee shall pay infoUSA the CPM Royalties in
accordance with sections 1 and 2 of this Appendix B, as follows:
Licensee shall pay the Annual Minimum Royalties in the Quarterly Minimum
Payments as set forth in Section 2. Except for the first Quarterly Minimum
Payment, which shall be payable within thirty (30) days after the Renewal
Effective Date, Licensee shall pay each Quarterly Minimum Payment prior to
the last day of the previous calendar quarter, provided that (a) infoUSA
has delivered the initial INFOUSA DATABASE or all monthly updates for the
quarter, as applicable, to Licensee pursuant to Section 4; and (b) infoUSA
shall have invoiced Licensee for such payments at least thirty (30) days
prior to the end of such previous calendar quarter. If infoUSA has not
delivered all monthly updates or any invoice by such time, Licensee's
payment obligation shall be deferred until fifteen (15) days after all such
monthly updates for the quarter and the invoice have been delivered. Within
thirty (30) days after the end of each one-year period of this Agreement,
Licensee shall pay infoUSA the difference, if any, between the CPM
Royalties payable pursuant to Section 1 of this Appendix B, and the Annual
Minimum Royalties paid by Licensee applicable to such one-year period. In
no event shall Licensee be obligated to pay any amount exceeding the Annual
Cap for any one-year period or any other license or other fees not
expressly set forth in this Appendix B.
4) REPORTING: Within thirty (30) days following the close of each month during
the term of this Agreement, Licensee will supply infoUSA with a CPM Report
setting forth the number of Pages viewed by Users, the breakdown between
Pages on the Service and those displayed through Wireless and XML
Applications, and the applicable CPM rate applied pursuant to Section 1(a)
of this Appendix B.
5) UPDATES: There will be [**] the monthly updates of the infoUSA Database. In
the event infoUSA offers updates of the infoUSA Database on a more frequent
basis than monthly to any other licensees, whether via electronic means or
otherwise, infoUSA shall notify Licensee, and Licensee may elect to receive
updates with the same frequency and/or in the same electronic format
offered to such other licensees.
6) BUTTONS REVENUE SHARE DUE TO LICENSEE: infoUSA will pay Licensee on a
quarterly basis, a royalty equal to [**] of Net Revenues from sales to
Users who accessed infoUSA's web site through the Buttons (described in
Appendix F).
"Net Revenue" means the amounts collected by infoUSA from such sales, less
any third-party commissions or fees applicable to such sales. infoUSA will
report quarterly to Licensee showing the Net Revenue and applicable third
party commissions or fees in reasonably sufficient detail to allow
verification of the calculation thereof.
Page 8
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
7) AUDIT: Each party hereto shall permit the other party, through an
independent certified public accountant reasonably acceptable to the
audited party, to audit its accounts, books and records, as they relate to
the audited party's obligation to make payments hereunder (or, in the case
of the Licensee, as they relate specifically to the number of co-branding
relationships of Licensee). Such audits shall be at the expense of the
auditing party and shall be made only upon reasonable notice. The right
granted under this Section shall exist during the term of this Agreement
and for one year thereafter. Upon concluding any audit, the auditing shall
notify the other party of the results thereof. In the event that the
auditing party notifies the other that an adjustment must be made to the
royalties or payments previously paid by such audited party hereunder, the
parties shall use their best efforts in good faith to agree upon the amount
of any such adjustment. Any such adjustment shall be paid within 5 business
days after such agreement is reached. In the event the parties agree that
the total amount of royalties or payments previously paid was less than the
amount required to be paid under this Agreement and such deficiency is 10%
or more of the amount previously paid, the audited party shall pay the
reasonable and actual audit costs incurred by the auditing party.
8) ADDRESS BOOK ROYALTIES: In connection with Address Book features set forth
in Section C.1.f.(iii) of Appendix C, (in which more than [**] Listings
and/or Records may be downloaded into the Address Book), Licensee will pay
infoUSA an additional [**] per thousand) on CPM Royalties attributable to
Pages of Listings and/or Records displayed by Licensee to Users of such
third party Co-Branded Sites or Wireless or XML Applications.
Page 9
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
APPENDIX C - RENEWAL
--------------------
SWITCHBOARD, INC.
-----------------
THE INTERNET DIRECTORY SERVICE
------------------------------
C. Licensee may reproduce, distribute, display and transmit (collectively,
"Display") the infoUSA Database in electronic form as a part of the Service
(defined below) and may permit Users to search for, locate and subsequently
view, download and print (with the right to actively enable Users to download
and print limited to the Address Book applications only) (collectively "Access")
such infoUSA Database.
C.1 The Service: The Service is an Internet directory service known as of the
Renewal Effective Date as "Switchboard," "Switchboard.com," and/or "CBS
Switchboard.com", and also includes other Licensee- owned or operated web sites
which offer similar business and residential directory services (expressly
including, without limitation, Licensee's "Maps On Us" web site and service),
which enable Users to Access, at no charge, information on businesses and
persons from the infoUSA Database in the following manner:
a. SEARCHES BY NAME OR REVERSE-SEARCHES BY TELEPHONE NUMBER
. The Service shall permit Users to search by a business or persons' name or
by telephone number by a city name, metropolitan statistical area ("MSA") or
other local geographic area, or state.
. In response to a search by name or phone number, the Service may display a
"Page" of listings of persons or businesses which show name, street address,
city, state, and/or phone number and, for only the first [**] listings
displayed in response to a single search, zip code (no infoUSA number)(each
such listing is hereinafter referred to as a "Listing").
. A User may click on a Listing in order to view a Page showing a single
record which includes zip code and infoUSA number (each such record is
hereinafter referred to as a "Record").
. No Page shall show more than [**] Listings at one time.
b. SEARCHES BY BUSINESS CATEGORY
. The Service shall permit Users to search by one business category at a time
by a city name, metropolitan statistical area ("MSA") or other local
geographic area, state, or proximity from a location Nationwide searches
within a business category shall be prohibited unless the User includes a
business name as described in subparagraph c below.
In response to a search by a business category, the Service may display a
Page of listings of businesses which show name, street address, city, state
and/or phone number and, for only the first [**] listings displayed in
response to a single search, zip code (no infoUSA number)(each such listing
is hereinafter referred to as a "Listing".
. A User may click on one of the Listings to view one business record on a
Page which includes zip code and infoUSA number (a "Record").
. No page shall show more than [**] Listings.
Page 10
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
c. NATIONWIDE SEARCHES BY NAME or by BUSINESS NAME & CATEGORY
. The Service shall permit Users to search nationwide by a business or
persons' name, or by business category and business name. (Nationwide
---
searches solely by business category are expressly prohibited)
. In response to a nationwide search by a person's or business name or, by
business name and category, the Service may display a Page of listings of
persons or businesses with the same or similar names which show name, street
address, city, state and/or phone number and, for only the first [**]
listings displayed in response to a single search, zip code (no infoUSA
number)(each such listing is hereinafter referred to as a "Listing").
. A User may click on one of the Listings to view one business or person's
record on a Page which includes zip code and infoUSA number (a "Record").
. No page shall show more than [**] Listings.
From time to time, infoUSA may provide written notice to Licensee
regarding a change to the search and display provisions described herein,
and Licensee agrees to discuss in good faith the feasibility of making
such changes, but will be under no obligation to make such changes.
d. In addition to the services specified in Section C.1. of this Appendix C,
the Service shall also be deemed to include the following: (i) additional
enhanced Services developed by LICENSEE, including but not limited to
Lightweight Directory Assistance and Protocol Directory Assistance, as well as
Intranet Directory Assistance for corporate USERS; (ii) applications that allow
API access to search results/content from the infoUSA Database as used in the
Licensee's services referenced in Section C.1 through wireless devices and/or
other types of applications that are designed to accept XML results
(collectively, "Wireless and XML Applications"); and (iii) third party web sites
to the extent that they access the ABI Database through links to the Licensee's
services in accordance with Section C.3.
e. At Licensee's option, Licensee may post navigation buttons which allow
its Users to link back to the SERVICE from the infoUSA web site.
f. ADDRESS BOOK FEATURE: The Service may include a feature which allows each
User to download Listings and/or Records from the infoUSA Database for
incorporation, possibly along with other information, into the User's personal
address book ("Address Book") for such User's personal use, subject to the
following restrictions:
(i) For the Service (including Co-Branded sites and Wireless and XML
Applications), where Licensee provides the technology for the Address
Book feature: For searches other than reverse searches by telephone
number, Licensee shall use commercially reasonable efforts to limit Users
to downloading and storing [**] Listings and/or Records into such Address
Book, including the requirement that Users select individual Listings
and/or Records on a one-by-one basis into the Address Book.
Page 11
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
(ii) For the Service (including Co-Branded sites and Wireless and XML
Applications) where Licensee or a third party provides the technology for
the Address Book Feature: For reverse-searches by telephone number, Users
shall not be subject to the [**] Listing and/or Record restriction set
forth in (i) above.
(iii) For those Co-Branded sites and Wireless and XML Applications where
Licensee does not provide the technology for the Address Book feature, and
the Address Book permits Users to download and store more than [**]
Listings and/or Records, Licensee shall pay infoUSA the applicable Address
Book Royalty described in Section 8 of Appendix B - Renewal.
C.2 LEGAL, COPYRIGHT AND OTHER NOTICES
Each search results page on a standard computer display containing infoUSA
Content will continuously display the following logo, copyright notice, and
"click here" language:
data by
[LOGO OF INFOUSA]
Click here for sales leads, mailing lists and business credit reports.
----------
The infoUSA logo will provided by infoUSA. and will be 113 pixels x 54 pixels in
size.
Search results from the infoUSA Database displayed other than on a standard
computer display (for example, on a wireless device such as a pager or mobile
phone) shall contain the following textual copyright notice in a manner, size,
and placement which is reasonable given the type of display: "Listings by
infoUSA, O 1999".
Listing: A Listing(s) will appear as follows (except that Licensee may elect to
display less information to Users as part of the Listing or to format
information differently) , with the zip code displayed only for the first 10
Listings in response to a single search:
XYZ Company
123 Main Street
Anywhere, USA [98765]
(123)456-7890
Record: A Record will appear as a result of a User clicking on a Listing, with
the infoUSA number displayed in connection therewith:
Page 12
<PAGE>
XYZ Company
123 Main Street
Anywhere, USA 98765
(123)456-7890
infoUSA No. 123456789
C.3 Co-Branding
Licensee may co-brand the service to a third party's web site. "Co-Branding"
shall mean that the third party (hereinafter "Co-Brander") publishes Licensee's
corporate name, link or logo on its web site.
Licensee will publish infoUSA's Buttons and copyright logo (as described in this
Appendix C and in Appendix F) on every such Co-Branded site, provided however,
that Licensee may honor all co-branding requirements under its current co-
branding agreements, until such time as they expire or are renewed, so long as
the current Co-Branders display the infoUSA text copyright statement during the
remainder of their current term with Licensee.
Licensee is prohibited from pursuing or establishing co-branding relationships
with then-current, direct licensees of infoUSA with the intended purpose of
supplanting the infoUSA Database with Licensee's Service, without prior written
approval from infoUSA
Licensee shall provide infoUSA with quarterly reports identifying the number of
all Co-Branding relationships Licensee has established with Co-Branders who have
access to the infoUSA Database through the Service.
Licensee will immediately notify Co-Brander upon learning of any breach in
connection with the use of the infousa data in order to start the applicable
cure period, AND LICENSEE AGREES THAT IT shall terminate the Co-Branding
Agreement if such breach is not cured within such cure period.
Page 13
<PAGE>
APPENDIX F - RENEWAL
--------------------
SWITCHBOARD, INC.
-----------------
BUTTONS
-------
F.1 HYPER-LINKED "BUTTONS".
-----------------------
Buttons: Licensee will post on the screens of its Service the following
advertisements in the form of buttons ("Buttons"). Such Buttons will provide a
hyperlink to URLs specified by infoUSA to allow Users to link to the
infoUSA.com web site to purchase the following "infoUSA Products":
a) Sales Leads and Mailing Labels: Allows Users to purchase infoUSA Content
in a mailing list format through the Service. Licensee will feature Button
on the search results screen for every Category search on the Service.
b) Business Credit Reports: Allows Users to purchase infoUSA Content in a
print report format through the Service.
Screen shots showing examples of the type of placement and presentation of the
Buttons and Logo on the Service are attached hereto as Appendix G. Switchboard
shall have the right to determine the placement of the Buttons and Logo,
provided that the parties shall mutually review the placement of Buttons and
Logos on a quarterly basis to ensure that the placement and presentation is
reasonably satisfactory to both parties.
F.2 CONTRACTS; BILLING INFORMATION. All contracts for the sale of infoUSA
------------------------------
Products shall be directly between infoUSA and USERS. Licensee shall not be a
party to such contracts. As between the parties hereto, infoUSA shall be solely
responsible for the performance of such contracts, and for the billing and
collection of amounts due thereunder.
F.3 REPORTING. Licensee will report monthly to infoUSA showing total click-
---------
through rate from the hyperlinked Button referenced in paragraph F.1.
Page 14
<PAGE>
APPENDIX G - RENEWAL
--------------------
SWITCHBOARD, INC.
-----------------
LICENSEE'S HOSTING LOCATIONS
----------------------------
(as described in paragraph 7 of this 1999 Renewal of Database License Agreement)
[TO BE PROVIDED BY LICENSEE WHEN APPLICABLE]
Page 15
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
ETAK, INC.
The Digital Map Company
A Unit of Sony Corporation
Exhibit 10.22
-------------
INTERNET PROVIDER
AGREEMENT
Lucent Technologies Inc.
IP-96-007
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
ETAK, INC.
INTERNET PROVIDER AGREEMENT
AGREEMENT NO. IP-96-007
ARTICLE 1: PARTIES, BACKGROUND AND DEFINITIONS
1.1 Parties to Agreement. This Internet Provider Agreement (the
--------------------
"Agreement") is entered into by and between Etak, Inc., a California corporation
("Etak") and Lucent Technologies Inc., a Delaware corporation ("Lucent").
1.2 Background. Etak develops and distributes digital geographic data,
----------
geographic access software, navigation products, geocoding services, and related
materials. Lucent wishes to obtain from Etak the Licensed Products listed on
Exhibit A so that Lucent can create Derivative Products that are used to provide
Geographic Services to End Users via the Internet as further set forth in
Article 2. Defined terms used in this Agreement are set forth in Section 11.1.
ARTICLE 2: APPOINTMENT OF LUCENT AND GRANT OF LICENSE
2.1 Appointment. Etak hereby appoints Lucent, on a non-exclusive basis,
-----------
and Lucent accepts such appointment, as an authorized Etak Internet Provider.
2.2 Grant of Development License. Etak hereby grants to Lucent a non-
----------------------------
exclusive, non-transferable, license to use each Licensed Product in object-code
form for the limited purpose of in-house development by Lucent of (i) Derivative
Products and (ii) Geographic Services on the Internet using those Derivative
Products.
2.3 Grant of Right to Provide Geographic Services on the Internet. Etak
-------------------------------------------------------------
hereby grants to Lucent the non-exclusive, non-transferable right to use the
Derivative Products to provide Geographic Services on the Internet to End Users,
provided that (i) Lucent has paid to Etak all fees due in accordance with
Exhibit A; and (ii) Lucent continues to comply with all provisions of this
Agreement.
2.4 Permitted Geographic Services. Lucent is permitted to provide the
-----------------------------
following Geographic Service to End Users via the Internet, subject to the
following restrictions:
(a) Three Classes of Geographic Services.
------------------------------------
(1) "Maps On Us" WWW Site. Lucent is authorized to operate the
---------------------
"Maps on Us" World Wide Web site to provide Map Images (as defined below in
section 2.4(b)) and Route Guidance (as defined below) to End Users. "Route
Guidance" means providing text-based or bit-map graphical directions regarding
how to travel from Point A to Point B in response to an End User inquiry for
such information, but does not include requests or instructions for more than
[**] endpoints [**] per request or more than [**] intermediate points per
request. The Maps On Us World Wide Web site shall be marketed and provided (i)
directly on behalf of Lucent and not on behalf of or by any third party, and
(ii) only under trade names and trademarks owned and controlled directly by
Lucent (except that Lucent shall include Etak's copyright notice and license
agreement link in accordance with section 2.4(b)(4)).
1
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
(2) "Maps On Us" Internet Service. Lucent is authorized to
-----------------------------
operate the "Maps on Us" Internet Service by which Lucent will provide a
linked Internet service to a third party (the "Lucent Customer") with its
own World Wide Web site so that End Users of the Lucent Customer's World
Wide Web site can obtain Map Images and Route Guidance pertinent to the
information contained on the Lucent Customer's World Wide Web site. Unlike
the Maps On Us WWW Site, the Maps On Us Internet Service may be marketed
and provided so that Lucent is invisible to the End User and is offered
under the trade names and trademarks of the Lucent Customer, provided,
however, that all other restrictions and conditions set forth in this
Agreement are met.
(3) "Maps On Us" Intranet Service. Lucent is authorized to
-----------------------------
operate the "Maps on Us" Intranet Service with the same scope of services
as permitted above with respect to the Maps On Us World Wide Web Site, with
the following distinction: the only End Users who shall be permitted to
obtain access to the Maps on Us Intranet Service are those who have been
granted a password by Lucent to access the Intranet Service, and Lucent
shall retrieve and retain an audit trail showing each hit when a particular
End User is using the Service, the particular End User using the Service,
and what type and level of Service that End User is accessing as defined in
section B3 of Exhibit A.
(b) Restrictions Applicable to all Classes of Geographic Services.
-------------------------------------------------------------
(1) The Geographic Services shall be provided via
telecommunications connection to the Internet, by means of a World Wide Web
site owned and controlled by Lucent, the site server for which is located
at a geographic location controlled by Lucent.
(2) Products shall not be disclosed, disseminated or distributed
in digital form to any third party, including without limitation any End
User or Lucent Customer. Products in digital form shall be used only on
Lucent's own in-house server and not anywhere else or by anyone else.
(3) The Geographic Services shall consist of bit-mapped (raster)
graphics images derived from the Products ("Map Images") and standard
English text derived from the Products. In order to minimize data transfer
time, Lucent is permitted to utilize Java Applets or Plug-in Mechanisms to
provide the Geographic Services to the End User and Lucent Customer in
digital, vector-based form. However, such digital form shall be invisible
to and unusable by the End User and Lucent Customer. The End User and
Lucent Customer shall be able to access, utilize and store the Map Images
in bit-mapped (raster) graphic form, and in no other form. Lucent shall not
authorize or enable the End User or Lucent Customer to download or access
the Map Images or the Products in any form except as expressly authorized
in this paragraph. Except as expressly permitted above in this section 2.4,
Lucent shall not distribute, disclose, or market the Map Images or Products
in any vector-based or digital form. Lucent may allow the Map Images to be
rotated or zoomed by the End User's entering a manual keystroke for each
such movement or rotation. A single Map Image shall not contain more than
[**] "Features" derived from Etak's original digital Licensed Product. A
"Feature" is defined as a one-cell as denoted in Etak's database. The Map
Images may include icons added by Lucent representing the location of
points, lines and areas of interest. End Users may be permitted to download
more than one selected Image Map at a time, provided that all Map Images
together do
2
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
not contain more than [**] Features; however, if the screen consists of an
Etak U.S. small scale Map Image or a portion thereof, plus an inset large-
scale map or maps showing details of an area or areas of interest from
within the bounds of the small scale Map Image, then only the Features
contained in the inset large-scale Map Image(s) shall be counted towards
the limit of [**] total Features. In no event shall End Users be
authorized, enabled or permitted to download, access, utilize or store the
Products or Map Images in any form except as expressly authorized above in
this section 2.4.
(4) Lucent shall include an initial screen that must necessarily
and unavoidably be viewed by each user that contains the following notice
in conspicuous type: "Copyright Etak, Inc. 1984-1996. All Rights Reserved.
By using this site, you agree to the attached LICENSE AGREEMENT." The term
-----------------
LICENSE AGREEMENT shall, when clicked on, hot link to a page containing the
-----------------
full, unaltered text of the End User Internet License Agreement attached
hereto as Exhibit B. In the same location Lucent shall also include a
conspicuous disclaimer stating "Routes and road conditions may change and
may not be accurately reflected in all cases. Please pay attention at all
times to road conditions, routes, and street signs and other posted
directional information."
Each Map Image displayed shall conspicuously include the
following notice: "Copyright Etak, Inc. 1984-1996. All Rights Reserved. Use
Subject to LICENSE." The term LICENSE shall, when clicked on, hot link to a
------- -------
page containing the full, unaltered text of the End User Internet License
Agreement attached hereto as Exhibit B. If it is not technically possible
to include the "LICENSE" hot link within the Map Image itself, then the Map
Image may include the notice as ordinary text, provided that the hot link
is placed immediately adjacent to the Map Image.
Lucent shall submit Lucent's web page designs to Etak for Etak's
review and approval as being compliant with this section 2.4 before Lucent
utilizes any such designs. Lucent may submit a web page template to Etak
that Etak approves and a new web page design need not be submitted to Etak
if the notices as required by this section are included in the same manner
as Etak previously approved in the template. Etak agrees to review and
respond to Lucent's submission of a web page design within ten (10) working
days of the date of receipt by Etak.
2.5 Ownership. This Agreement does not constitute a transfer of any
---------
title or interest in the Licensed Products, and Etak reserves all rights in
the Licensed Products not expressly granted to Lucent by this Agreement.
Any portion of the Licensed Products that is modified or merged into other
computer programs or data by Lucent, or is combined with other programs or
data to form Derivative Products, shall continue to be subject to the
provisions of this Agreement, and Etak retains ownership of all such
Licensed Products and all such portions. However, Lucent shall be owner of
any item which Lucent can show through contemporaneous, tangible evidence
to be a Lucent Product. Nothing in this Agreement shall be construed as, or
deemed to be, an express or implied license for Lucent to obtain or utilize
any of Etak's patents, copyrights, trade secrets, or other intellectual
property, except for the limited license with respect to Etak's copyrights
and trade secrets for Etak's software and data expressly granted under the
terms and conditions set forth in this Article 2.
2.6 Authorized Purpose. Lucent shall not use the Products for any
------------------
purpose except as
3
<PAGE>
expressly authorized by this Article 2. By way of example and not by way of
limitation, Lucent is expressly prohibited from enabling the Product with any of
the following functions, or from creating a capability that allows third parties
to enable any of the following functions:
PROHIBITED FUNCTIONS:
--------------------
. Batch Geocoding (that is, determining geographic location such as
latitude and longitude from address or intersection information
through any means other than manual entry by the user of each request
for geographic information); provided, however, that Lucent shall be
permitted to utilize batch geocoding for Lucent's internal use only,
and shall not provide Batch Geocoding services to any third party or
enable the Product with Batch Geocoding.
. Communications to other devices for purposes of in-vehicle navigation
or automated vehicle tracking, including without limitation:
. Interfacing to any user or vehicle motion or location sensors,
including but not limited to CPS, gyroscopes, and wheel sensors;
. Rotating or moving map display (other than that produced by the user
manually entering a keystroke for each given movement or rotation).
. Distribution by any means other than electronic telecommunications
through the Internet as expressly authorized above. 2.7
2.7 Object Code and Data Only. This license from Etak is for data and
-------------------------
software in object code only. Etak does not grant any rights whatsoever to, and
Lucent shall not obtain access to or any use of, Etak source code or files.
However, if the parties agree, Etak will provide source code to Lucent for
certain software, subject to the terms and conditions of a mutually acceptable
separate agreement. In order to preserve Etak's trade secret, proprietary
information that is contained in the Products, Lucent shall not derive or
attempt to derive the source code, files or structure of all or any portion of
the Licensed Products by reverse engineering, disassembly, decompilation or any
other means.
2.8 Copyrights. The Licensed Products are copyrighted by Etak, and
----------
unauthorized copying of the Licensed Products, or any portion thereof, is
expressly prohibited. Lucent shall ensure that each copy of a Product and any
portion thereof shall bear the same trademarks, logos, copyright notices and
proprietary legends as the Licensed Products which Lucent received from Etak,
and Lucent shall not remove such notice or alter or augment it (except for
adding Lucent's own copyright notice for Lucent Products). Specifically, Lucent
shall conspicuously display Etak's copyright notice as described above in
section 2.4.
2.9 Duplication of Products. Lucent shall not duplicate, manufacture, copy
-----------------------
or reproduce any Products, or any portion thereof, except as necessary for (i)
internal use as expressly permitted in this Article 2; (ii) distribution in Map
Image form only to End Users via the Internet subject to the restrictions set
forth in Section 2.4; (iii) a limited number of copies at Lucent's own site for
back-up and archival purposes. Under no circumstances shall Lucent permit any
third parties to duplicate, manufacture, copy or reproduce any Products, or any
portion thereof.
4
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2.10 Electronic Shipping. If Etak delivers any Licensed Products to
-------------------
Lucent via modem or other electronic means, all terms and conditions of this
Agreement shall apply to those Licensed Products in the same manner as if they
were delivered via traditional physical media.
ARTICLE 3: ORDERS AND PAYMENT TERMS
3.1 License Fees, Royalties. Lucent shall pay to Etak (i) fees, and (ii)
-----------------------
royalties; in accordance with the Schedule of Fees and Royalties set forth in
Exhibit A with respect to each of the three authorized classes of Geographic
Services set forth in Section 2.4 of this Agreement.
3.2 Shipment of Licensed Products. Etak shall ship to Lucent any Licensed
-----------------------------
Products ordered by Lucent under this Agreement within a commercially reasonable
time after receipt of Lucent's order therefor.
3.3 Order Procedure. All orders by Lucent shall be controlled by the terms
---------------
and conditions of this Agreement. Any proposed variation from or addition to
these terms and conditions appearing on any purchase order or other document
submitted by Lucent shall be null and void, unless specifically accepted in a
writing signed by an authorized officer of Etak. Purchase orders are not valid
until accepted in writing by Etak. Shipments will be scheduled by Etak only upon
receipt of a duly executed purchase order from Lucent and upon acceptance of the
purchase order by Etak.
3.4 Shipment Terms. All Licensed Products licensed under this Agreement
--------------
shall be shipped F.O.B. from a facility of Etak. Lucent is responsible for all
shipping, insurance and related charges, and all risk of damage or loss to the
Licensed Products shall pass to Lucent at Etak's facility upon tender by Etak to
the carrier.
3.5 Payment Terms. Net payment for fees and royalties due Etak from Lucent
-------------
shall be due and payable in accordance with Exhibit A. Etak may refuse to ship,
or may delay the shipment of, any Licensed Products on order if Lucent becomes
delinquent in the payment of any of its obligations to Etak. All outstanding
amounts which are not paid when due shall bear interest at the lesser of: (i)
the maximum allowable statutory rate at the time, or (ii) 16% per annum. All
prices are net of any local, state or federal taxes, fees, assessments or other
levies, which shall be the sole obligation of Lucent. Lucent shall pay to Etak
all applicable local, state and federal taxes and levies unless Lucent has
presented to Etak a valid and appropriate certificate of exemption from those
taxes and levies.
ARTICLE 4: PROTECTION OF ETAK'S INTELLECTUAL PROPERTY
4.1 Confidentiality of the Licensed Products. Lucent shall be the owner of
----------------------------------------
the storage media on which Etak delivers the Licensed Products. However, the
Licensed Products themselves, including all aspects thereof used or incorporated
in Derivative Products, together with all materials and knowledge related
thereto (the "Confidential Items"), are obtained by Lucent, and its employees,
agents and representatives, in confidence and except as expressly permitted by
this Agreement, shall not be used, duplicated or disclosed by any of them in any
form for the use or benefit of any person or entity, nor reproduced,
transcribed, imitated or
5
<PAGE>
simulated in whole or in part, except for distribution in Map Image form or text
for Route Guidance to End Users via the Internet subject to the restrictions set
forth in Article 2. Lucent may disclose relevant aspects of the Confidential
Items to its employees, agents or representatives with a need to know who have
been advised that the Confidential Items are proprietary and confidential, and
who have previously or contemporaneously signed a nondisclosure agreement with
Lucent that is consistent with the standard Lucent Employee Intellectual
Property Agreement attached hereto as Exhibit C. Lucent shall protect and
preserve the confidentiality of the Licensed Products in accordance with
Lucent's standard policies applicable to Lucent's own confidential information
of an equivalent level of security, but in no event with less than reasonable
care.
4.2 Duty to Assist. Lucent shall notify Etak promptly if Lucent has
--------------
knowledge of any misappropriation of the Products or use of the Products by
anyone in any manner not expressly authorized by this Agreement, and shall
cooperate with any efforts by Etak to prevent any misappropriation or misuse of
the Products. The foregoing sentence does not obligate Lucent to conduct an
investigation of suspected misappropriation. In the event of any violation or
suspected violation of any provisions of this Article 4, Lucent shall promptly
notify Etak and shall, at Etak's expense, assist Etak in Etak's enforcement of
Article 4 against any current or former employee, agent or representative of
Lucent or any End User.
ARTICLE 5: WARRANTIES AND DISCLAIMER THEREOF
5.1 Limited Warranty By Etak.
------------------------
(a) Etak warrants to Lucent that the Software Licensed Products will,
for ninety (90) days from the date of initial delivery, and that the Data
Licensed Products will, for one (1) year from the date of initial delivery,
substantially conform to the contemporaneous specifications contained in Etak's
Documentation, when used in an Etak-approved operating environment; and that the
media (if any) on which Etak delivers the Licensed Products to Lucent will be
free of manufacturing defects on the date of initial delivery.
(b) Lucent acknowledges that the Licensed Products are complex and
may contain some nonconformities, defects or errors. Etak does not warrant that
the Licensed Products will meet Lucent's needs or expectations, that operations
of the Licensed Products will be error free or uninterrupted, or that all the
nonconformities can or will be corrected. Lucent must notify Etak in writing
within the applicable warranty period set forth above of any claim that the
Licensed Products do not meet this Limited Warranty. Etak's SOLE OBLIGATION and
Lucent's SOLE REMEDY under this Limited Warranty is for Etak to use reasonable
efforts to repair or replace the Licensed Products or to provide an avoidance
procedure at Etak's expense within a commercially reasonable time so that the
Licensed Products substantially conform to the specifications contained in the
Documentation, or at Etak's option, to refund the royalties previously paid by
Lucent for the units of Licensed Products involved. If Lucent is unable to
describe the claimed nonconformity with sufficient specificity to enable Etak to
confirm it, then no nonconformity shall be deemed to exist.
(c) If the media delivered to Lucent by Etak containing the Licensed
Products possess manufacturing defects, upon notice from Lucent, Etak will
provide Lucent with a replacement copy of the Licensed Products, and Lucent
shall return to Etak the defective copy.
6
<PAGE>
Etak's policy is to use virus-checking software on the Licensed Products before
they are shipped; however, because virus-checking software is not one hundred
percent reliable, Etak cannot and does not warrant that the Licensed Products
will be free from all viruses. Accordingly, Lucent should run its own virus-
checking software on the Licensed Products before loading them. If Lucent
discovers a virus on a Licensed Product as delivered by Etak that Lucent cannot
remove, Etak shall make another delivery of that Licensed Product to Lucent upon
Lucent's return of the first delivery. Etak agrees not to intentionally insert
into the Licensed Products any malicious code, program or other internal
component (e.g. computer virus, computer worm, computer time bomb, or similar
component) which is designed to damage, destroy or alter software or data.
(d) Etak agrees that Etak's pricing to Lucent will be consistent with
applicable trade regulations.
(e) This warranty shall not apply to any nonconformities arising from
Lucent's modification or attempted modification of the Licensed Products. If,
upon Lucent's request, Etak chooses to correct nonconformities resulting from
Lucent's modification of the Licensed Products, Lucent shall be charged for and
agrees to pay for custom programming at Etak's then current standard hourly
rate.
(f) This Limited Warranty is void if any nonconformity has resulted from
accident, abuse, misuse, or misapplication. This Limited Warranty is for
Lucent's exclusive benefit and is non-transferable, and Lucent agrees that this
Limited Warranty fulfills its essential purpose.
(g) THE EXPRESS WARRANTY PROVIDED IN SECTIONS 5.1(a) THROUGH (f) IS A
LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY ETAK. ETAK MAKES AND LUCENT
RECEIVES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
THE STATED EXPRESS WARRANTY IS THE EXCLUSIVE REMEDY FOR DAMAGES AND IS IN LIEU
OF ALL LIABILITIES OR OBLIGATIONS OF ETAK. NO ORAL OR WRITTEN ADVICE OR
INFORMATION PROVIDED BY ETAK OR ANY OF ITS AGENTS OR EMPLOYEES SHALL CREATE A
WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY, AND LUCENT
IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION.
5.2 Lucent Express Warranty. Lucent represents and warrants that it
-----------------------
possesses the financial resources, technical facilities and skill, and other
requirements necessary for its timely and full performance pursuant to the terms
and conditions of this Agreement, and that it is an experienced and
knowledgeable user and distributor of computer software and data.
ARTICLE 6: INDEMNIFICATION
6.1 Indemnification by Etak.
-----------------------
(a) Lucent shall notify Etak promptly upon learning of any threatened
or asserted claim that the Licensed Products infringe any patents, copyrights,
trade secrets or other intellectual property rights of any third party. Etak
shall have the sole right to control the
7
<PAGE>
defense and negotiation of all such claims with respect to the Licensed Products
as originally delivered to Lucent or as incorporated within the Derivative
Products, and Lucent shall fully cooperate in Etak's defense of all such claims
at Etak's expense.
(b) Etak shall protect, defend (or in Etak's discretion, settle),
indemnify and hold Lucent harmless from any and all claims, demands,
liabilities, obligations, damages, suits, judgments or settlements
(collectively, "Claims"), including reasonable costs and attorneys' fees, that
are asserted against Lucent to the extent that such Claims are based upon a
contention that the Licensed Products used within the scope of this Agreement
infringe any patents, copyrights, trade secrets or other intellectual property
rights of any third party created by United States federal law, the law of any
of the United States, or the law of any nation that is a signatory to the Berne
Convention or the General Agreement on Tariffs and Trade, provided that Lucent
notified Etak in writing of such claim in sufficient time to enable Etak to
fully protect its interests without prejudice.
(c) If, as a result of any claim of infringement described in this
Section 6.1, Etak reasonably believes that an injunction or temporary
restraining order or such a claim is likely, Etak may in its sole discretion and
at its expense procure the right for Lucent to continue to use said Licensed
Product, or replace or modify the Licensed Product so as to make it non-
infringing. If, as a result of any claim of infringement described in this
Section 6.1, a temporary restraining order or injunction is issued prohibiting
Etak from licensing or sublicensing any Licensed Product, or prohibiting Lucent
from using any Licensed Product, Etak may in its sole discretion and at its
expense procure the right for Lucent to continue to use said Licensed Product,
replace or modify the Licensed Product so as to make it non-infringing, or if
the above options are not available to Etak on a commercially reasonable basis,
terminate this Agreement and refund the unamortized portion of the license fees
and royalties previously paid by Lucent for the use of the affected units said
Licensed Product. Calculation of the unamortized portion of the license fees
royalties shall be based upon five (5) years' straight line depreciation.
(d) Etak shall not have any liability under this Article 6 to the
extent that such a claim of infringement is based upon the use of the Licensed
Products in combination with other products not furnished or made by Etak (other
than a claim based upon the combination of the Licensed Products with operating
software that Etak lists as compatible with the Licensed Products), the use of
the Licensed Products in practicing any infringing process, the modification of
the Licensed Products or any portion thereof by anyone other than Etak, or
application or for the use Licensed Products in a manner for which they were not
designed or specified by Etak.
(e) Sections 6.1(a) through 6.1(e) state the entire and exclusive
obligation of Etak to Lucent or Lucent's End User for any claim of infringement
relating to the Licensed Products.
6.2 Indemnification by Lucent. Lucent shall protect, defend, indemnify and
-------------------------
hold Etak harmless from any and all claims, demands, liabilities, obligations,
damages, suits, judgments or settlements (collectively, "Claims"), including
reasonable costs and attorneys' fees, that arise from the act, neglect, omission
or unperformed obligation of Lucent in the development, modification, use or
distribution of the Derivative Products or Lucent Products or Lucent's breach of
any provision of this Agreement.
8
<PAGE>
ARTICLE 7: LIMITATION ON LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CLAIM OR LOSS INCURRED BY
THE OTHER PARTY (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT,
INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS,
EXPENDITURES, LOSS OF GOODWILL, OR DAMAGES RESULTING FROM LOST DATA OR INABILITY
TO USE DATA) IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN INFORMED OF, KNEW OF,
OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES, EXCEPT AS EXPRESSLY
PROVIDED IN ARTICLES 5 AND 6 AND 9, AND IN THE SENTENCE SET FORTH BELOW AT THE
END OF THIS ARTICLE 7. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE
AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, NOR SHALL
EITHER PARTY BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST THE OTHER PARTY BY ANY
OTHER PERSON, ORGANIZATION OR ENTITY (EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE
6). ETAK SHALL NOT BE LIABLE TO LUCENT BECAUSE OF ANY EXPIRATION, TERMINATION
OR FAILURE TO RENEW OR EXTEND THIS AGREEMENT, OR FOR FAILURE TO TIMELY DELIVER
PRODUCT. IF ETAK'S LIMITED WARRANTY OR THE LIMITATION OF LIABILITY SET FORTH IN
THIS AGREEMENT SHALL FOR ANY REASON WHATSOEVER BE HELD UNENFORCEABLE OR
INAPPLICABLE, EACH PARTY AGREES THAT THE OTHER PARTY'S LIABILITY SHALL NOT
EXCEED FIFTY PERCENT (50%) OF THE ROYALTIES PAID BY LUCENT TO ETAK WITH RESPECT
TO THE LICENSED PRODUCTS UNITS THAT ARE THE SUBJECT OF THE CLAIM. EXCEPTION:
THIS ARTICLE 7 SHALL NOT APPLY TO ANY CLAIM BY ETAK AGAINST LUCENT WITH RESPECT
TO: (1) VIOLATION OF ANY OF ETAK'S INTELLECTUAL PROPERTY RIGHTS; (2) VIOLATION
BY LUCENT OF ARTICLES 2 OR 4 HEREOF. FURTHER, THIS ARTICLE 7 SHALL NOT BE
CONSTRUED TO PRECLUDE ETAK FROM COLLECTING FEES AND ROYALTIES OWED BY LUCENT
UNDER THE PROVISIONS OF THIS AGREEMENT.
ARTICLE 8: RECORDS, REPORTS AND AUDITS
8.1 Required Records. Lucent shall prepare and maintain at its expense
----------------
complete and accurate books and records documenting the provision of any
Geographic Services to End Users and Lucent Customers, and any revenues of any
type received or derived therefrom. The books and records prepared by Lucent
shall be retained for a minimum of three (3) years from the date on which Lucent
is obligated to pay such fee to Etak.
8.2 Reports to Etak. Lucent shall, within thirty (30) days after the end
---------------
of each calendar month, provide Etak with a written report of Lucent activities
under this Agreement. Such report shall include the number of Internet accesses
of the Geographic Services occurring that month, and shall state the gross
revenue received or derived by Lucent from the Products or related services.
Etak shall hold such information confidential, except as needed by Etak to
enforce its rights or Lucent's obligations under this Agreement.
8.3 Audit. During the initial term hereof, any renewal periods, and for a
-----
period of one (1) year after expiration or termination of this Agreement, Etak
shall have the right, not more
9
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
often than once per year, at its expense and upon reasonable notice, to examine
or have examined by its authorized representative, Lucent's books and records to
determine or verify Lucent's performance hereunder with respect to license and
confidentiality provisions (Articles 2 and 4), the amounts of license, support
and other fees due to Etak by Lucent hereunder, and the extent that such amounts
have been paid, and the accuracy of any such reports furnished by Lucent to
Etak. If the audit demonstrates that Lucent has paid to Etak 95% or less of the
fees or royalties actually owed to Etak, then Lucent shall promptly pay the cost
of such audit, in addition to the amounts actually owed. Etak shall hold
confidential the information obtained from Lucent through such audit, except as
needed by Etak to enforce its rights or Lucent's obligations under this
Agreement. Lucent shall have the option of requiring Etak to use an outside,
independent auditor, for such examination, upon written request to Etak,
provided that Lucent first deposits with such outside auditor the estimated cost
thereof.
ARTICLE 9: TERM AND RENEWAL
Unless terminated earlier pursuant to any provision of Article 10, this
Agreement shall commence on the date countersigned by an authorized officer of
Etak after having been signed by Lucent, and shall continue in force for three
(3) years from said date. However, Lucent shall have the right to terminate this
Agreement at the end of the first year or second year that this Agreement is in
effect by giving written notice thereof to Etak at least ninety (90) days before
the end of the first year or second year of this Agreement, respectively,
provided that Lucent first pays to Etak a $25,000 termination fee in addition to
all fees and royalties owed by Lucent hereunder through the date of termination.
Thereafter, this Agreement shall be automatically renewed for one-year periods,
unless during any such one-year period either party notifies the other party at
least ten months before the expiration date of this Agreement, as it may have
been extended, of that party's intention not to extend the Agreement, in which
event this Agreement shall expire automatically without judicial action. Etak
shall notify Lucent at least 120 days before the expiration date of this
Agreement, as it may have been extended, of any proposed changes in the
royalties and fees to be paid by Lucent in the renewal period. [**] the [**] the
[**] that [**] is then [**] who are [**] the [**] and [**] the [**] the same
type [**]. If the above sentence is violated, then as Lucent's SOLE REMEDY and
Etak's SOLE OBLIGATION, Etak shall [**] to the [**] the [**] by [**] and the
[**] by the [**] during which [**] than what the [**]. This [**] but only as
[**]. This [**] provision shall not apply to [**] settlement or litigation.
Lucent does not have or acquire by execution of this Agreement, by
performance hereunder, or otherwise, any vested right with respect to the
distribution of Products or the renewal of this Agreement. If Etak continues a
business relationship with Lucent after termination or nonrenewal of this
Agreement, that relationship shall not be construed as a renewal of this
Agreement or a waiver of termination, but such relationship shall be "at will,"
terminable at any time with or without cause or notice by either party, and all
such transactions shall be governed by terms otherwise identical to the relevant
provisions of this Agreement, unless the parties have executed a new written
agreement superseding this Agreement.
10
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ARTICLE 10: TERMINATION, EFFECTS THEREOF AND REMEDIES
10.1 Termination Events.
------------------
(a) Etak may terminate this Agreement immediately, without judicial
action, and (i) with two (2) days' notice if Lucent violates any of the
provisions of Articles 2 or 4; and (ii) with thirty days, notice and opportunity
to cure: if Lucent commits a material breach of any other provision of this
Agreement or otherwise fails materially to fulfill any of its obligations
hereunder, or if Lucent neglects or fails to conduct its business in a manner
that represents fairly Etak products and the good name, goodwill and reputation
of Etak. In addition, Lucent shall have the right to terminate this Agreement
with thirty days' notice and opportunity to cure if Etak commits a material
breach of any provision of this Agreement.
(b) Either party hereto may terminate this Agreement immediately upon
written notice to the other party without opportunity for cure if such other
party becomes insolvent or, whether voluntary or involuntary, if any process or
proceeding of any court is instituted against such party by attachment or levy
or execution, in insolvency or bankruptcy, or in receivership, or if any general
assignment is made or attempted to be made for the benefit of creditors by such
party. If either party ceases to conduct its business in the normal course of
business, the other party may by thirty (30) days written notice terminate this
Agreement.
10.2 Survival. Termination of this Agreement for any reason or its natural
--------
expiration shall not relieve Lucent of its obligations to make full payment to
Etak for any and all amounts that are owed by Lucent to Etak. In addition,
Sections 2.5, 2.7, 2.8, 2.9, Article 4, Article 5, Article 6, Article 7, Article
8, Section 10.3, and Article 11 hereof shall survive any such termination or
expiration.
10.3 Return of Information. Promptly upon expiration or termination of this
---------------------
Agreement Lucent shall, at its expense, return to Etak all copies of the
Products, related materials, and other materials developed by or belonging to
Etak which are in possession or control of Lucent, and shall make no further use
thereof in any form. Concurrently therewith, a duly authorized employee of
Lucent shall certify in writing to Etak that all such materials have been
returned to Etak.
ARTICLE 11: GENERAL PROVISIONS
11.1 Definitions. In this Agreement, the following are defined terms:
-----------
(a) "Licensed Products' means all software ("Software"), data ("Data"),
documentation and related materials as listed on Exhibit A hereto, as amended
from time to time by the mutual consent of the parties, or supplied by Etak to
Lucent.
(b) "Products" means Licensed Products and Derivative Products.
(c) "Lucent Products" means all new and original products independently
created by Lucent without use or inclusion of any portion of a Licensed Product.
(d) "Derivative Products" means all works created by Lucent which are
based upon or incorporate all or part of one or more Licensed Products, such as
a revision, modification, translation, abridgment, condensation, expansion,
collection, compilation or any other form in which such Licensed Products may be
recast, transformed or adapted.
11
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
(e) "End User" means any third party who is granted the right to use any
of the Products.
(f) "Geographic Services" shall have the meaning set forth in section 2.4
of this Agreement.
11.2 Final Agreement. This Agreement supersedes all prior and
---------------
contemporaneous agreements and understandings between the parties relating to
its subject matter and is the complete and exclusive statement of the terms of
their Agreement, and may be amended only by a writing so stating its purpose,
and signed by both parties.
11.3 Governing Law; Jurisdiction. This Agreement and all aspects of the
---------------------------
relationship between Etak and Lucent shall be governed by and construed in
accordance with the internal laws of the State of California.
11.4 Product Changes. Etak has the right to modify or discontinue any of
---------------
the Licensed Products at any time whatsoever, with [**] written notice to
Lucent. If Etak modifies or discontinues any License Product, Etak shall [**]
make any [**] with respect to Licensed Products previously delivered to Lucent.
11.5 Arbitration. Any dispute arising out of, connected with or relating to
-----------
this Agreement, the past, present or future relationship between Etak and
Lucent, or the termination or non-renewal of this Agreement or of the
relationship between Etak and Lucent, whether sounding in contract, tort or
otherwise, shall be finally resolved exclusively by arbitration. Such
arbitration shall be conducted by a panel of three arbitrators. To the greatest
extent practicable, the arbitrators shall be appointed from a pool of
arbitrators who are stated to have experience or expertise in the computer
industry. The arbitration shall proceed in accordance with the then current
commercial rules of the American Arbitration Association. Any award made by the
arbitration panel, however constituted, shall be final, binding and conclusive
on all parties for all purposes and judgment may be entered thereon by any state
or federal court having jurisdiction.
11.6 Notices. Any notice, request or demand required to be given or made
-------
hereunder in writing, and may be delivered in person, by certified or registered
mail, postage prepaid, or by facsimile confirmed by overnight courier. All
notices shall be addressed to the party and address set forth at the end of this
Agreement, unless and until a party provides written notice of a new address for
receipt of notice. All notices shall be deemed received when (i) received; or
(ii) when delivery is first attempted by the carrier at the address of record,
whichever comes first. A copy of all notices to Etak shall also be sent to Etak
Contract Administration
11.7 Severability. If any provision of this Agreement or the application
------------
thereof to any party or circumstance shall to any extent be invalid or
unenforceable in any jurisdiction, that provision shall be severed from this
Agreement as to such jurisdiction (but, to the extent permit by law, not
elsewhere), and shall not affect the remainder hereof.
11.8 No Waiver. No waiver of any obligation or right of either party shall
---------
be effective unless in writing, executed by the party against whom it is being
enforced. Any such waiver shall not preclude a party from exercising any other
right or later exercising the same right.
12
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11.9 Attorney Fees. If either party defaults in the performance of its
-------------
material obligations under this Agreement, such party shall pay to the other
party all reasonable costs and expenses incurred by such other party in
enforcing its rights under this Agreement, including without limitation, costs
and attorneys' fees.
11.10 Assignment. This Agreement shall inure to the benefit of and shall be
----------
binding upon the parties hereto and their respective successors, legal
representatives and permitted assigns, except that Lucent shall not assign or
transfer this Agreement or any part hereof without Etak's prior written consent,
which consent shall not be unreasonably withheld. This restriction on
assignments or transfers shall apply to assignments or transfers by operation of
law, as well as by contract, merger or consolidation. Any attempted assignment
or transfer in derogation of this prohibition is void.
11.11 Force Majeure. Neither party shall be liable for non-performance or
-------------
delays in performance hereunder if caused by factors beyond its reasonable
control; provided, however, that Lucent shall be liable regardless of the
circumstances if Lucent is overdue by more than two (2) weeks in making payments
to Etak.
11.12 Compliance with Laws. Lucent acknowledges and understands that the
--------------------
Products may be subject to restrictions on exportation and re-exportation
pursuant to the United States Export Administration Regulations, 15 CFR Parts
368-399. Prior to export of any Product, Lucent will be familiar with the
requirements of the Export Administration Regulations and will comply strictly
with those requirements in all transactions involving any Products supplied by
Etak hereunder. Lucent shall comply with all applicable laws and regulations,
and maintain all required licenses and permits.
11.13 Government Right. If any Product is used in any fashion, directly or
----------------
indirectly, in connection with foreign or domestic government contracting or
subcontracting, including without limitation, Lucent's performance of any
government contracts or subcontracts, then Lucent shall ensure that the
government entity receives nothing more than limited license rights to use the
Products pursuant to a sublicense agreement equivalent to that allowed under
section 2.4 and Exhibit B of this Agreement. Lucent shall inform any government
entity or prime contractor with which it is contracting exactly how it intends
to use the Products in connection with its government contracts, that such
Products are proprietary to Etak and that Licensee has no right to grant to the
government entity or prime contractor any rights in the Products. The software
is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995)
consisting of "commercial computer software" and "commercial computer
documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4
(June 1995), all U.S. Governmental End Users acquire the software with only
those license rights set forth herein. For purpose of any public disclosure
provision under any federal, state or local law, it is agreed that these
Products are trade secret and proprietary commercial products and not subject to
disclosure. The Products are copyright (c) 1984-1996 by Etak, Inc. UNPUBLISHED.
ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES.
11.14 No Joint Relationship. Lucent and Etak are independent contractors and
---------------------
neither has nor shall have any power, nor will either represent that either has
any power to bind the other party, or to assume or create any obligation or
responsibility, express or implied, on behalf of the other party or in the other
party's name. This Agreement shall not be construed as constituting Lucent and
Etak as employees, agents, partners, joint venturers, franchisors or
franchisees, to create any other form of legal association or arrangement which
might impose liability upon Etak or Lucent for any act or failure to act of the
other.
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and entered into this
Agreement as of the date indicated below on which it is countersigned by an
authorized officer of Etak after having been signed by Lucent.
<TABLE>
<S> <C>
LUCENT TECHNOLOGIES INC. ETAK, INC.
A Delaware corporation a California corporation
600 Mountain Avenue 1430 O'Brien Drive
Room 2A-536 Menlo Park, CA 94025
Murray Hill, NJ 07974 (415) 328-3825
(908) 582-5590
By: /s/ Stephen J. Socolof By: /s/ Steven T. Dodds
------------------------------------ -----------------------------------
Name: Stephen J. Socolof Name: Steven T. Dodds
--------------------------------- --------------------------------
Title: Strategy & Business Development Title: VP of Product Marketing & Sales
--------------------------------- --------------------------------
Date: 11-21-96 Date: November 25, 1996
--------------------------------- --------------------------------
</TABLE>
14
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
EXHIBIT A
A. LICENSED PRODUCTS:
-----------------
Upon final execution of this Agreement by the parties, Etak agrees to deliver to
Lucent the following Licensed Products at no charge:
[ ] RELEASED
*Software
- MapDraw Library
- MapRetrieve Library
- Etak GeoCode Library
- GeoRetrieve Library
- GeoCoder Workstation for Windows (qty. 3)
*Data
- US Database/MapAccess Format
- EtakMap USA
- Business Listings in Etak standard released format
[ ] UNRELEASED
*Software
- [**]
- [**]
- [**]
- [**]
- [**]
*Data
- [**] (as release during the first 18 months
of the term of this Agreement)
- [**] Format
Etak agrees to provide each calendar quarter those updates to the above released
items that are generally released by Etak.
B. FEES AND ROYALTIES:
------------------
(1) Maps On Us WWW Site
Lucent shall pay Etak the greater of (a) or (b) below in this section B.(1)
(a) Lucent shall pay to Etak in each year that this Agreement is in effect,
a minimum annual guaranteed royalty of [**], payable in installments in the
following manner: [**] shall be paid within thirty (30) days of the commencement
of each annual period, then [**] shall be paid three months after such
commencement. The minimum annual guaranteed royalty shall be payable regardless
of the actual Gross Revenues of Maps On US. For purposes of royalty calculation,
the first annual period shall commence on the earlier of (i) the date that
Lucent first offers to any Lucent customer one or more of the services described
in this Agreement, or (ii) December 15, 1996.
15
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
(b) Maps on Us WW Site Royalty Rate (Percent of Maps On Us Gross Revenues)
<TABLE>
<S> <C> <C>
Level 1 Etak Map Premium Databases with available one ways [**]
In year one of this Agreement: [**]
Level 2 Above including Imputed Turn Restrictions and [**]
Highway Netfiles
Level 3 Above including full Turn By Turn attributes [**]
After year one of this Agreement:
</TABLE>
The percentage Royalty Rate shall be based on a weighted formula,
calculated as follows:
Etak will report at the beginning of each calendar quarter the percentage
of the Untied States population that is covered by Etak Level 2 databases and
that has been shipped to Lucent over the term of this Agreement (EL2), and the
percentage of the United States population that is covered by Etak Level 3
databases and that has been shipped to Lucent over the term of this Agreement
(EL3).
Divide [**]
Divide [**]
Multiply [**]
Multiply [**]
Divide [**] = the percentage Royalty Base.
Example: If Etak Level 2 databases cover [**] of the population, while Etak
Level 3 databases cover [**] of the population, the formula would operate as
follows:
[**] divided by [**]
[**] divided by [**]
Multiply [**] by [**]
Multiply [**] by [**]
Add [**] and [**]
Through payment of the [**] minimum annual guaranteed royalty set forth above in
B(1)(a), Lucent will have in effect prepaid royalties for that year up to [**]
for the Maps On Us WWW Site. Thus, Lucent shall not be required to actually pay
the royalty amounts set forth above in this section B(1)(b) until the accrued
royalties owed Etak for that year exceed [**], at which point Lucent shall
commence paying to Etak the above royalties.
After Lucent has paid to Etak royalties equal to [**] (including the minimal
annual guaranteed royalty paid by Lucent) in any given annual period that this
Agreement is in effect, the Royalty Rate for the remainder of that same annual
period as set forth above in this
16
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
subsection B(1)(b) of this Exhibit A shall decrease to [**] of the percentages
set forth above for Level 1, Level 2, and Level 3. However, at the start of the
next annual period the Royalty Rate shall increase to the figures set for Level
1, Level 2, and Level 3.
Optional Additional Fees (applicable if Etak provides the following updates to
Lucent)
Updates to Business Listings [**] per update
Etak's goal is to update Business Listings once per quarter.
If Lucent is paying Etak the minimum annual license fees and royalties due
under this section 1, then Lucent is permitted to offer the following additional
two classes of services:
(2) "Maps On Us" Internet Service
-----------------------------
Lucent shall pay Etak the greater of (a) or (b) below in this section B.(2)
(a) Lucent shall pay to Etak in each year that this Agreement is in
effect, a minimum annual guaranteed royalty of [**] per Lucent Customer without
Business Listings, and [**] per Lucent Customer with Business Listings, payable
within thirty (30) days of the commencement of each annual period. The minimum
annual guaranteed royalty shall be payable regardless of the actual Gross
Revenues of Lucent.
(b) Royalty Rate (Percent of Maps On Us Gross Revenues)
<TABLE>
<S> <C>
Level 1 EtakMap Premium databases with available one ways [**]
In year one of this Agreement:
Level 2 Above including Imputed Turn Restrictions and [**]
Highway Netfiles
Level 3 Above including full Turn By Turn attributes [**]
After year one of this Agreement:
</TABLE>
The percentage Royalty Rate shall be based on a weighted formula,
calculated as follows:
Etak will report at the beginning of each calendar quarter the percentage
of the United States population that is covered by Etak Level 2 databases and
that has been shipped to Lucent over the term of this Agreement (EL2), and the
percentage of the United States population that is covered by Etak Level 3
databases and that has been shipped to Lucent over the term of this Agreement
(EL3).
Divide [**]
Divide [**]
Multiply [**]
Multiply [**]
Add [**] = the percentage Royalty Rate.
17
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
Through payment of the [**], as the case may be, per Customer minimum annual
guaranteed royalty set forth above in B(2)(a), Lucent will have in effect
prepaid royalties for that year up to [**], as the case may be, per Customer for
the Maps On Us Internet Service. Thus, Lucent shall not be required to actually
pay the royalty amounts set forth in this section B(2)(b) until the accrued
royalties owed Etak with respect to that Customer for that year exceed [**], as
the case may be, at which point Lucent shall commence paying to Etak the above
royalties for that Customer.
There are no additional discounts which apply to the Maps On Us Internet Service
royalty calculation.
(3) "Maps On Us" Intranet Service
(a) Lucent shall pay to Etak in each year that this Agreement is in
effect, a minimum annual guaranteed royalty of [**] per Lucent Customer without
Business Listings, and [**] per Lucent Customer with Business Listings, payable
within thirty (30) days of the commencement of each annual period. The minimum
annual guaranteed royalty shall be payable regardless of the actual Gross
Geographic Service Revenues of Lucent.
(b) Lucent shall pay to Etak the following royalty per "hit", based on the
number of hits per month and the Level of service provided.
<TABLE>
<CAPTION>
Number of Hits Per Month
<S> <C> <C> <C>
less than 25k 25-100k greater than 100k
Level 1 [**] [**] [**]
</TABLE>
In year one of this Agreement:
<TABLE>
<S> <C> <C> <C>
Level 2 [**] [**] [**]
Level 3 [**] [**] [**]
</TABLE>
After year one of this Agreement:
The per hit Royalty shall be based on a weighted formula, calculated as
follows:
Etak will report at the beginning of each calendar quarter the percentage
of the United States population that is covered by Etak Level 2 databases and
that has been shipped to Lucent over the term of this Agreement (EL2), and the
percentage of the United States population that is covered by Etak Level 3
databases and that has been shipped to Lucent over the term of this Agreement
(EL3).
Divide [**]
Divide [**]
Multiply [**] from the table below = [**]
Multiply [**] from the table below = [**]
18
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
<TABLE>
<CAPTION>
Number of Hits Per Month
<S> <C> <C> <C>
less than 25k 25-100k greater than 100k
FACTOR (f2 or f3)
Level 2 [**] [**] [**]
Level 3 [**] [**] [**]
</TABLE>
Add [**] = the percentage Royalty Rate.
Levels of Service are defined as follows:
Level 1 EtakMap Premium Databases with available one ways
Level 2 Above including Imputed Turn Restrictions and Highways Netfiles
Level 3 Above including full Turn by Turn attributes
For purposes of this section B.3. of this Exhibit A, a "hit" means each access
to a Map Image by any End User or Customer.
Through payment of the [**], as the case may be, per Customer minimum annual
guaranteed royalty set forth above in B(3)(a), Lucent will have in effect
prepaid royalties for that year up to [**], as the case may be, per Customer for
the Maps On Us Intranet Service. Thus, Lucent shall not be required to actually
pay the royalty amounts set forth above in this section B(3)(b) until the
accrued royalties owed Etak with respect to that Customer for that year exceed
[**], as the case may be, at which point Lucent shall commence paying to Etak
the above royalties for that Customer.
---
For purposes of this Exhibit A, sections B.1. and B.2., "Gross Revenues" shall
include any consideration in any form received by Lucent or any affiliate of
Lucent with respect to any Web Site that includes or uses any Etak Licensed
Products or any portion thereof in any form.
For purposes of this Exhibit A, section B.3., "Gross Geographic Services
Revenues" shall include any consideration in any form received by Lucent or any
affiliate of Lucent with respect to the Geographic Services portion of any Web
Site that includes or uses any Etak Licensed Product or any portion thereof in
any form.
Under this Exhibit A, the Royalty shall both be accrued and paid on a monthly
basis at the same time that the report is due in accordance with section 8.2 of
the Agreement.
19
<PAGE>
EXHIBIT B
END USER INTERNET LICENSE
IMPORTANT-READ CAREFULLY BEFORE ACCESSING THIS WEB SITE.
--------------------------------------------------------
BY ACCESSING THIS WEB SITE YOU ACCEPT THIS AGREEMENT.
-----------------------------------------------------
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE END USER, AND LUCENT. BY ACCESSING
THIS WEB SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF
YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS THIS WEB SITE.
1. GRANT OF LICENSE. Lucent is an authorized sublicensor of products owned and
----------------
created by Lucent's licensor. Lucent grants you a non-transferable, non-
exclusive license to use the map-images contained on this web site (the
"Products"), solely for internal use by your business or for your own personal
use, only with one central processing unit at any one time. You may not copy,
reverse engineer, translate, port, modify or make derivative works of the
Products. You may not rent, disclose, publish, sell, assign, lease, sublicense,
market, or transfer the Products or use them in any manner not expressly
authorized by this Agreement. You shall not derive or attempt to derive the
source code, source file or structure of all or any portion of the Products by
reverse engineering, disassembly, decompilation or other means. You shall not
use the Products to operate a service bureau or for any other uses involving the
processing of data of other persons or entities. You do not receive any, and
Lucent's licensor retains all, ownership rights in the Products. The Products
are copyrighted and may not be copied, even if modified or merged with other
Products. You shall not alter or remove any copyright notice or proprietary
legend contained in or on the Products.
2. LIMITED WARRANTY AND LIABILITY. The Products are provided to you on an "AS
------------------------------
IS" and "WITH ALL FAULTS" basis. You assume the entire risk of loss in using
the Products. The Products are complex and may contain some nonconformities,
defects or errors. Lucent does not warrant that the Products will meet your
needs or expectations, that operations of the Products will be error free or
uninterrupted, or that all nonconformities can or will be corrected. Routes and
road conditions may change and may not be accurately reflected in all cases.
Please pay attention at all times to road conditions, routes, and street signs
and other posted directional information. This Limited Warranty is non-
transferable.
THE EXPRESS WARRANTY IN THIS SECTION 2 IS A LIMITED WARRANTY AND IT IS THE ONLY
WARRANTY MADE BY LUCENT. LUCENT MAKES AND USER RECEIVES NO OTHER WARRANTY,
WHETHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTIBILITY, TITLE, AND
FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. THE STATED EXPRESS
WARRANTY IS THE EXCLUSIVE REMEDY FOR DAMAGES AND IS IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF LUCENT.
IN NO EVENT SHALL LUCENT BE LIABLE FOR ANY DAMAGES, CLAIM OR LOSS INCURRED BY
USER (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR BUSINESS,
EXPENDITURES,
20
<PAGE>
INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY
GOODWILL, OR DAMAGES RESULTING FROM LOST DATA OR INABILITY TO USE DATA)
IRRESPECTIVE OF WHETHER LUCENT HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE
KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES
OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER
TORTS. IF LUCENT'S LIMITED WARRANTY OR LIMITATION OF LIABILITY SET FORTH IN THIS
AGREEMENT SHALL FOR ANY REASON WHATSOEVER BE HELD UNENFORCEABLE OR INAPPLICABLE,
USER AGREES THAT LUCENT'S LIABILITY SHALL NOT EXCEED $100.00. SOME STATES DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE
LIMITATION OF DURATION OF AN IMPLIED WARRANTY, SO THE LIMITATION OR EXCLUSION
HEREIN MAY NOT APPLY TO YOU. THIS WARRANTY SHALL NOT BE APPLICABLE TO THE EXTENT
THAT ANY PROVISION OF THIS WARRANTY IS PROHIBITED BY ANY FEDERAL, STATE OR LOCAL
LAW WHICH CANNOT BE PREEMPTED. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS,
AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
3. MISCELLANEOUS. This is the exclusive Agreement between Lucent and you
-------------
regarding its subject matter. You may not assign any part of this Agreement
without Lucent's prior written consent. This Agreement shall be governed by the
internal laws of California. You shall pay any taxes on the Products or
transactions, except for those based on Lucent's annual net income. If any
provision of this Agreement is declared invalid or unenforceable, the remaining
provisions of this Agreement shall remain in effect. Any notice under this
Agreement shall be delivered by U.S. certified mail, return receipt requested,
or by overnight courier to Lucent at the address below. Lucent's licensor shall
be a third party beneficiary of Lucent's rights under this Agreement, but is not
a party hereto and shall have no obligation hereunder.
COMMERCIAL COMPUTER SOFTWARE
The software is a "commercial item," as that term is defined at 48 C.F.R. 2.101
(Oct. 1995) consisting of "commercial computer software" and "commercial
computer documentation," as such terms are used in 48 C.F.R. 12.212 (Sept.
1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995), all U.S. Governmental End Users acquire the software
with only those license rights set forth herein. For purpose of any public
disclosure provision under any federal, state or local law, it is agreed that
these Products are trade secret and proprietary commercial products and not
subject to disclosure. The Products are copyright (C) 1984-1996 by Etak, Inc.
UNPUBLISHED. ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES.
21
<PAGE>
EXHIBIT C
STANDARD LUCENT EMPLOYEE INTELLECTUAL PROPERTY AGREEMENT
22
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
March 21, 1997
Lucent Technologies, Inc.
Room 2C-220
600 Mountain Ave
Murray Hill, NJ 07974
Re: Amendment ("the Amendment") to Internet Provider Agreement NO. 96-007
between Lucent Technologies ("Provider") and Etak, Inc. ("Etak") dated November
25, 1996 (the "Agreement").
Provider hereby authorizes Etak to market, distribute and sublicense directly
and through Etak's channels of distribution the Maps On Us Service and Maps On
Us Products and other services that the parties agree to. For those services
that are actually fulfilled by Provider (rather than by Etak or another party),
Etak shall pay to Provider the greater of: (a) [**] the royalties that Etak
collects for said services, or (b) [**] of the then current Provider list price
for said services.
Notwithstanding the above, for current customers and prospective customers to
whom Etak has issued a quote as of the date of this Amendment, for which Etak
fulfills services using the Provider services, Etak shall pay Provider [**]
the royalties that Etak collects for said services.
The royalties payable by Provider to Etak as described in the Exhibit A of the
Agreement, shall be [**] for the subcontracted services (Maps On Us Service,
Maps On Us Products and other services that the parties agree to) that are
fulfilled by Provider under this Amendment.
This is a non-exclusive sub-contracting relationship. Either party may
terminate this sub contracting relationship with 120 days written notice,
without affecting the Agreement.
For each such service set forth above, Provider shall deliver to Etak an
accurate monthly report showing the number of hits that the service for each
particular Etak End User has generated, and based on that report Etak shall make
payment to Provider of applicable royalties within thirty (30) days of Etak's
receipt of that report.
23
<PAGE>
This Amendment shall be conterminous with Agreement.
<TABLE>
<CAPTION>
Accepted:
<S> <C>
LUCENT TECHNOLOGIES INC. ETAK, INC.
By: /s/ Narain Gehani By: /s/ Steven T. Dodds
------------------------------- -------------------------------
Name: Narain Gehani Name: Steven T. Dodds
----------------------------- -------------------------------
Title: President, Maps On Us Title:
Lucent Technologies ----------------------------
----------------------------
Date: 3/22/97 Date: March 22, 1997
---------------------------- ----------------------------
</TABLE>
24
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
AMENDMENT #2 TO INTERNET PROVIDER AGREEMENT
BETWEEN ETAK, INC. AND LUCENT TECHNOLOGIES INC.
This Amendment #2 (the "Amendment #2") to the Internet Provider Agreement
between Etak, Inc. ("Etak") and Lucent Technologies Inc. ("Provider") entered
into on November 22, 1996 (the "Agreement") is entered into as of March 31,
1997. Except as expressly amended herein, the Agreement shall remain in full
effect in accordance with its terms.
A. Etak's Internet Geocoding Server
--------------------------------
Provider wishes to obtain, and Etak agrees to provide, Etak's Internet
Geocoding Server (Formerly called E-Map Locate) (the "Geocoder") in conjunction
with the Maps On Us Web Site, the Maps On Us Internet Service, and the Maps on
Us Intranet Service. The purpose of this Amendment #2 is to set forth the
specific terms and conditions that apply to the Geocoder.
1. License for the Geocoder. Etak hereby agrees to grant a license to
------------------------
Provider to use the Geocoder solely in conjunction with the Maps On Us Web Site,
the Maps On Us Internet Service, and the Maps On Us Intranet Service under the
license restrictions and pursuant to the terms and conditions set forth in the
Agreement.
2. Term. The license for the Geocoder shall commence on the date
----
countersigned by an authorized officer of Etak after having been signed by
Lucent (the "Geocoder Commencement Date"), and shall continue in force for one
(1) year. Thereafter, this Agreement shall be automatically renewed for one (1)
year terms unless either party terminates the license for use of the Geocoder
for the next year with ninety (90) days written notice prior to the end of the
anniversary date of this Amendment #2.
3. License Fee. Provider agrees to pay to Etak a annual license free of
-----------
[**] (the "Geocoder Annual License Fee"), payable within thirty (30) days of
execution of this Amendment #2. Subsequent Geocoder Annual License Fees shall be
due on the anniversary of the execution of this Amendment #2. The Geocoder
Annual License Fee for any year in which the term of the Agreement shall expire
prior to twelve (12) months from the Geocoder Commencement Date shall be
prorated accordingly.
IN WITNESS WHEREOF, the parties hereto have executed and entered into this
Amendment #2 as of March 31, 1997, provided it has been countersigned by an
authorized officer of Etak after having been signed by Provider.
25
<PAGE>
<TABLE>
<S> <C>
LUCENT TECHNOLOGIES INC. ETAK, INC.
a Delaware corporation a California corporation
Room 2C-220 1430 O'Brien Drive
600 Mountain Avenue Menlo Park, California 94025
Murray Hill, NJ 07974 (415) 328-3825
(908) 582-4432
By: /s/ Narain H. Gehani By: /s/ Stephen T. Dodds
---------------------------- --------------------------------------
Name: Narain H. Gehani Name: Stephen T. Dodds
------------------------- -----------------------------------
Title: President, Maps On Us Title: VP of Product Marketing and Sales
------------------------- -----------------------------------
Date: May 16, 1997
-----------------------------------
</TABLE>
26
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
AMENDMENT #3 TO ETAK INTERNET PROVIDER AGREEMENT
NO IP-96-007
This is the third Amendment ("Amendment #3") to the Agreement (the "Agreement")
between Lucent Technologies Inc. ("Provider") and Etak, Inc. ("Etak"),
(collectively, the "parties") entered into as of November 25, 1996.
WHEREAS the parties have entered into the Agreement for the licensing of Etak
software and data, and
WHEREAS the parties now wish to amend said Agreement,
Now, therefore, in consideration of the mutual undertakings and agreements
hereinafter set forth the parties agree to amend the Agreement as follows:
1. Beginning with the second annual period commencing on December 15,
1997, through payment of the [**] minimum annual guaranteed royalty
set forth in Exhibit A, Section B, sub-section 1(a), Provider will
have, in effect, prepaid royalties for that year up to [**] for the
Maps On Us WWW site and the Maps on Us Internet Service. Thus, except
for the revised minimum annual guaranteed royalty of [**] per Lucent
Customer with Business Listings as set forth in paragraph 2 below,
Provider shall not be required to actually pay the royalty amounts set
forth in Section B(1)(b) or Section B(2)(b) until the accrued
royalties owed Etak for that year exceed [**], at which point Provider
shall commence paying to Etak the applicable royalties.
2. Beginning on June 1, 1997, the minimum annual guaranteed royalties set
forth in Exhibit A, Section B, sub-section 2(a) shall be [**] for
Lucent Customers without Business Listings; Lucent shall pay to Etak
in each year that this Agreement is in effect, a minimum annual
guaranteed royalty of [**] per Lucent Customer with Business Listings,
payable within thirty (30) days of the commencement period. This
minimum annual guaranteed royalty shall be payable regardless of the
actual Gross Revenues of Lucent and shall not be applied to the
minimum annual guaranteed royalty set forth in Exhibit A, Section B,
sub-section 1(a) of the Agreement.
Through payment of the minimum annual guaranteed royalty of [**] per
Lucent Customer with Business Listings, Lucent will have in effect
prepaid royalties for that year up to [**] per Customer with Business
Listings for the Maps On Us Internet Service. Thus, Lucent shall not
be required to actually pay the royalty amounts set forth above in
this section B(2)(b) until the accrued royalties owed Etak with
respect to that Customer for that year exceed [**], at which point
Lucent shall commence paying to Etak the above royalties for that
Customer.
3. Lucent shall report all royalties due Etak per Section 8 and Exhibit
A, Section B as contracted. Lucent shall pay all royalties due Etak
per Section 8 and Exhibit A,
27
<PAGE>
Section B within thirty (30) days of collection of payment by Lucent
or within sixty (60) days of report to Etak, whichever comes first.
Except as otherwise amended herein, all terms and conditions of the Agreement
shall remain in full force and effect. In the event of conflict in terms, this
Amendment shall take precedence over the Agreement.
THIS AMENDMENT SHALL BECOME EFFECTIVE UPON EXECUTION BY AN OFFICER OF ETAK.
<TABLE>
<CAPTION>
<S> <C>
LUCENT TECHNOLOGIES INC. ETAK, INC.
By: /s/ Stephen M. Clemente By: /s/ Joseph W. Petrucci
------------------------------ -------------------------------------
Name: Stephen M. Clemente Name: Joseph W. Petrucci
---------------------------- -----------------------------------
Title: CEO Maps On Us Title: Vice President, Sales & Marketing
---------------------------- -----------------------------------
Date: March 10, 1998 Date: March 16, 1998
---------------------------- -----------------------------------
</TABLE>
28
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
AMENDMENT #4 TO ETAK INTERNET PROVIDER AGREEMENT
NO. IP-96-007
This is the fourth Amendment ("Amendment #4") to the Internet Provider Agreement
(the "Agreement") between Lucent Technologies Inc. ("Customer") and Etak, Inc.
("Etak"), (collectively, the "parties") entered into as of November 25, 1996.
WHEREAS, the parties have entered into the Agreement for the licensing of Etak
software and data, and
WHEREAS, the parties now wish to amend said Agreement,
Now, therefore, in consideration of the mutual undertakings and agreements
hereinafter set forth, the parties agree to amend the Agreement as follows:
Pursuant to Section 11.4 of the Agreement, Etak hereby provides Customer with
written notice that the Business Listings and all updates to the Business
Listings as set forth on Exhibit A, Section A of the Agreement shall be
discontinued on June 15, 1998. In consideration of the discontinuance of the
Business Listings as set forth in Exhibit A, Section A of the Agreement, Etak
agrees to reduce the minimum annual guaranteed royalty set forth in Exhibit A,
Section B of the Agreement by [**] for each month remaining the second year
(12/15/97-12/15/98) of the Agreement in which Customer is no longer using the
Business Listings as provided prior to June 15, 1998 and thereafter by [**] for
each such month remaining in the third year (12/15/98-12/15/99) of the Agreement
following: 1) written notification by Customer to Etak that Customer is no
longer using the Business Listings; 2) return to Etak of all Business Listings
and all Derivative Products that include Business Listings and 3) certification
by a duly authorized employee of Customer that all such materials have been
returned to Etak.
The parties agree to amend Article 11.4 Product Changes of the Agreement by
adding the following sentence at the end of the existing paragraph: "Except
with respect to the Business Listings, the parties agree that Etak's right to
modify or discontinue any Licensed Product is applicable only to modifications
or discontinuances of the Licensed Products to Etak's customers as a whole due
to changes in the provision by Etak of such Licensed Products."
Except as otherwise amended herein, all terms and conditions of the Agreement
shall remain in full force and effect. In the event of conflict in terms, this
Amendment shall take precedence over the Agreement.
<TABLE>
<S> <C>
LUCENT TECHNOLOGIES INC. ETAK, INC.
a Delaware corporation a California corporation
600 Mountain Avenue 1430 O'Brien Drive
Murray Hill, NJ 07974 Menlo Park, CA 94025
908/582-5590 650/328-3825
By: /s/ Stephen M. Clemente By: /s/ Joseph W. Petrucci
------------------------------ -----------------------------
Name: Stephen M. Clemente Name: Joseph W. Petrucci
---------------------------- ---------------------------
Title: CEO Maps On Us Title: VP Sales & Marketing B&P
---------------------------- ---------------------------
Date: May 13, 1998 Date: May 13, 1998
---------------------------- ---------------------------
</TABLE>
29
<PAGE>
AGREEMENT OF ASSIGNMENT AND ASSUMPTION
WHEREAS, for good and sufficient consideration Lucent Technologies Inc., a
Delaware corporation ("Transferor"), has agreed in principle to assign and
----------
transfer to Switchboard Incorporated, a Delaware corporation ("Transferee"), all
----------
of Transferor's right, title, and interest in and to substantially all the
assets of its Maps on Us business (the "Assigned Assets"), including rights and
---------------
privileges under certain contracts and agreements assigned to Transferee; and
WHEREAS, in consideration of Transferor's assignment and transfer of the
Assigned Assets, Transferee has, among other things, agreed to assume certain
liabilities and obligations of Transferor from and after the Closing Date (as
defined below), including obligations and liabilities under certain contracts
and agreements assigned to Transferee; and
WHEREAS, that certain Etak Internet Provider Agreement (Agreement No. IP-
96-007), as amended (the "Assigned Contract") between Transferor and Etak, Inc.
-----------------
(the "Obligee") is one of the contracts and agreements to be assigned to
Transferor, and therefore all rights and privileges of Transferor under the
Assigned Contract are to be assigned to Transferee and all liabilities, duties,
and obligations of Transferor under the Assigned Contract are to be assumed by
Transferee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and representations set forth below, the parties to this Agreement of Assignment
and Assumption (this "Agreement") hereby agree as follows:
---------
1. Assignment of Assigned Contract at Closing Date. Transferor and
-----------------------------------------------
Transferee hereby notify Obligee of the assignment by Transferor to Transferee
of the Assigned Contract, effective as of consummation of the transfer of the
Assigned Assets, which consummation shall occur on such date as may be
determined by Transferor and Transferee (the "Closing Date"). The Closing Date
shall be deemed the effective date hereof. Promptly after the Closing Date,
------------
Transferor and Transferee will complete the Notice appended at the end hereof
and transmit executed counterparts hereof to Obligee.
2. Assumption of Obligations and Liabilities by Transferee. Transferee
-------------------------------------------------------
hereby assumes and agrees with Obligee and Transferor fully and faithfully to
discharge and perform all liabilities and obligations of Transferor under the
Assigned Contract from and after the Closing Date.
3. Approval of Assignment, Assumption and Guarantee. Obligee hereby
------------------------------------------------
approves, consents to, and accepts (a) the assignment by Transferor to
Transferee, effective as of the Closing Date of the Assigned Contract and all
rights and privileges of Transferor thereunder, and (b) the assumption by
Transferee, effective as of the Closing Date, of all liabilities and obligations
of Transferor under the Assigned Contract.
4. Modifications to Agreement. After the Closing Date, Obligee and
--------------------------
Transferee hereby agrees to work together in good faith to reach mutually
acceptance terms regarding
30
<PAGE>
modifications to the Agreement including the provision of ABI data and related
changes to financial terms, as are mutually agreed upon by Obligee and
Transferee.
IN WITNESS WHEREOF, the undersigned have executed this in multiple
counterparts upon the dates indicated below by their duly authorized
representatives, effective for all purposes as of the Closing Date.
TRANSFEROR
Lucent Technologies
- -------------------
By: /s/ Stephen M. Clemente
-------------------------------
Name: Stephen M. Clemente
----------------------------
Title: CEO Maps On Us
----------------------------
Date: May 13, 1998
----------------------------
OBLIGEE
- -------
Etak, Inc.
By: /s/ Joseph W. Petrucci
-------------------------------
Name: Joseph W. Petrucci
----------------------------
Title: VP Sales & Marketing B&P
----------------------------
Date: May 13, 1998
----------------------------
TRANSFEREE
- ----------
Switchboard Incorporated
By: /s/ Dean Polnerow
-------------------------------
Name: Dean Polnerow
----------------------------
Title: President
----------------------------
Date: May 13, 1998
----------------------------
31
<PAGE>
NOTICE
------
The Closing Date, as defined in paragraph 1 of this Agreement, was May 13, 1998.
TRANSFEROR
Lucent Technologies
- -------------------
By: /s/ Stephen M. Clemente
-------------------------------
Name: Stephen M. Clemente
----------------------------
Title: CEO Maps On Us
----------------------------
Date: May 13, 1998
----------------------------
TRANSFEREE
- ----------
Switchboard Incorporated
By: /s/ Dean Polnerow
-------------------------------
Name: Dean Polnerow
----------------------------
Title: President
----------------------------
Date: May 13, 1998
----------------------------
32
