<PAGE>
As filed with the Securities and Exchange Commission on February 16, 2000
Registration No. 333-90013
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
AMENDMENT NO. 4
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(c)
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.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 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 4, 10.7A, 10.26, 10.27, 10.30 and 10.40 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.......................................... $ 20,878
NASD filing fee............................................... 8,090
Nasdaq National Market listing fee............................ 95,000
Blue Sky fees and expenses.................................... 15,000
Transfer Agent and Registrar fees............................. 10,000
Accounting fees and expenses.................................. 500,000
Indemnity insurance expenses.................................. 290,000
Legal fees and expenses....................................... 600,000
Printing and mailing expenses................................. 200,000
Miscellaneous................................................. 261,032
----------
Total....................................................... $2,000,000
==========
</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, warrants and convertible notes.
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 the Registrant's core technologies and net assets valued
at approximately $546,000 and in settlement of advances from Banyan
Worldwide of approximately $697,000.
3. On November 5, 1996, the Registrant issued and sold an aggregate of
750,000 shares of the Registrant's 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) and warrants to purchase
shares of the Registrant's Series B Convertible Preferred Stock, $0.01
par value per share, to Digital City, Inc. and America Online, Inc.,
in each case equal to 3.75% of the Registrant's capital stock on the
date of exercise, for an aggregate purchase price of $3,000,000,
pursuant to a Series A Preferred Stock Purchase Agreement.
4. 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 in connection
with a Technology Development and Marketing Agreement.
II-2
<PAGE>
5. 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 in connection with a Web-site Development Agreement.
6. 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 in connection with a Web-site Development
Agreement.
7. 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 in connection with a Web-site Development
Agreement.
8. 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 in connection with a Web-site Development Agreement.
9. 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 under a Technology Development and
Marketing Agreement.
10. On June 30 and July 1, 1999, the Registrant issued and sold an
aggregate of 7,468,560 shares of its common stock, one share of its
Series E Special Voting Preferred Stock, $0.01 par value per share,
and warrants to purchase an aggregate of 1,066,937 shares of common
stock to CBS Corporation for consideration of $5.0 million in cash
and $95.0 million in advertising and promotion through June 2006
across CBS media properties, including television, radio and outdoor
advertising.
11. On June 30, 1999, the Registrant issued 2,655,916 shares of its
Series C Convertible Preferred Stock, $0.01 par value per share, 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.
12. On June 30 and July 1, 1999, the Registrant issued an aggregate of
146,505 shares of its Series D Convertible Preferred Stock, $0.01 par
value per share, 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 $1,098,788 on
the date of conversion.
13. On July 21, 1999, the Registrant issued 1,875 shares of its common
stock to an executive search firm in exchange for services rendered.
14. From January 1998 through January 1999, the Registrant has issued and
sold an aggregate of 57,999 shares of common stock to employees of
the Registrant pursuant to stock option exercises, for an aggregate
purchase price of $83,186.
(b) Stock option grants.
From the adoption of the 1996 Stock Incentive Plan through January 31,
1999, the Registrant has granted options to purchase an aggregate of 3,689,325
shares of its common stock, net of cancellations of 701,851 options and
exercises of 59,874 options at a per share weighted average exercise price of
$1.64.
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** Certificate of Amendment to Certificate of Incorporation of the
Registrant, as amended, effective as of February 4, 2000.
3.3** Amended and Restated Certificate of Incorporation of the Registrant,
to be effective upon the closing of this offering.
3.4** By-Laws of the Registrant.
3.5** Amended and Restated By-Laws of the Registrant, to be effective upon
the closing of this offering.
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, as amended, 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
the Registrant, 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")).
10.4A** Amendment No. 2 to Common Stock and Warrant Purchase Agreement,
effective as of July 1, 1999.
10.5** Advertising and Promotion Agreement by and among the Registrant,
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 the Registrant 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 the Registrant to CBS
Corporation, dated June 30, 1999 (Incorporated by reference to
Exhibit 10.2 of the August 16, 1999 Banyan Worldwide 10-Q).
10.7A Common Stock Purchase Warrant issued by the Registrant to CBS
Corporation, dated July 1, 1999.
10.8** Registration Rights Agreement by and between the Registrant and CBS
Corporation, dated June 30, 1999.
10.9** Right of First Refusal Agreement by and among the Registrant, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.10** Financial Reporting Agreement among the Registrant, Banyan Worldwide
and CBS Corporation, dated as of January 28, 2000.
10.11** Stockholders' Voting Agreement by and among the Registrant, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.12** Common Stock Purchase Warrant issued by the Registrant to Continuum
Software Inc., dated December 31, 1997.
10.13** Registration Rights Agreement by and between the Registrant and
Continuum Software Inc., dated December 31, 1997.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.14** Common Stock Purchase Warrant issued by the Registrant to US WEST
Dex, Inc., dated March 31, 1999.
10.15** Common Stock Purchase Warrant issued by the Registrant to Ameritech
Interactive Media, Inc., dated March 31, 1999.
10.16** Common Stock Purchase Warrant issued by the Registrant to Intelligent
Media Ventures, Inc., dated March 31, 1999.
10.17** Common Stock Purchase Warrant issued by the Registrant to SBC
Communications Inc., dated April 13, 1999.
10.18** Amended and Restated Registration Rights Agreement, as amended, by
and among the Registrant, America Online, Inc., Digital City Inc. and
Banyan Worldwide, dated February 20, 1998.
10.19** Amended and Restated Registration Rights Agreement by and between the
Registrant and Banyan Worldwide, dated May 3, 1999.
10.20** Services Agreement between the Registrant and Banyan Worldwide, dated
November 1, 1996.
10.21**+ Database License Agreement, as amended, by and between the Registrant
and infoUSA Inc., dated December 31, 1997.
10.22**+ Internet Provider Agreement, as amended, by and between the
Registrant and Etak, Inc., dated November 25, 1996.
10.23** Convertible Secured Note Purchase Agreement between the Registrant
and Banyan Worldwide, dated August 29, 1997, as amended.
10.24** Amended and Restated Convertible Note issued by the Registrant to
Banyan Worldwide on January 26, 2000.
10.25** Form of Registration Rights Agreement between the Registrant and
Banyan Worldwide.
10.26 Form of Services Agreement between the Registrant and Banyan
Worldwide.
10.27*** Form of Sublease between the Registrant and Banyan Worldwide.
10.28** Employment Agreement between the Registrant and Douglas J. Greenlaw,
dated October 8, 1999.
10.29** Employment Agreement between the Registrant and Dean Polnerow, dated
December 1, 1999.
10.30 Employment Agreement between the Registrant and John P. Jewett, dated
January 25, 2000.
10.31** Employment Agreement between the Registrant and James M. Canon, dated
December 31, 1999.
10.32**+ Internet Data Center Services Agreement between the Registrant and
Exodus Communications, Inc., effective June 30, 1998.
10.33** Nonstatutory Stock Option Agreement Granted Under 1999 Stock
Incentive Plan between the Registrant and Douglas J. Greenlaw, dated
October 13, 1999.
10.34** Nonstatutory Stock Option Agreement between the Registrant and
Douglas J. Greenlaw, dated October 13, 1999.
10.35** Incentive Stock Option Agreement between the Registrant and Dean
Polnerow, dated October 13, 1999.
10.36** Incentive Stock Option Agreement between the Registrant and John P.
Jewett, dated October 13, 1999.
10.37** Incentive Stock Option Agreement between the Registrant and James M.
Canon, dated October 13, 1999.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.38** Non-Statutory Stock Option Agreement between the Registrant and
William P. Ferry, dated September 14, 1999.
10.39** Non-Statutory Stock Option Agreement between the Registrant and
William P. Ferry, dated October 18, 1999.
10.40 Non-Statutory Stock Option Agreement between the Registrant and Daniel
R. Mason, dated September 14, 1999.
10.41** Non-Statutory Stock Option Agreement between the Registrant and
Richard M. Spaulding, dated September 14, 1999.
10.42** Non-Statutory Stock Option Agreement between the Registrant and David
N. Strohm, dated September 14, 1999.
10.43** Non-Statutory Stock Option Agreement between the Registrant and Robert
M. Wadsworth, dated September 14, 1999.
21** Subsidiaries of the Registrant.
23.1** Consent of PricewaterhouseCoopers LLP.
23.2** Consent of Hale and Dorr LLP (included in Exhibit 5).
24.1** Power of Attorney for Douglas J. Greenlaw, Dean Polnerow, John P.
Jewett, William P. Ferry, Daniel R. Mason, Richard M. Spaulding, David
N. Strohm and Robert M. Wadsworth.
24.2** Power of Attorney for Russell I. Pillar.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
*** Superseding exhibit.
+ 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.
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.
II-6
<PAGE>
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-7
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 4 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
Boston, Massachusetts, on this 15th day of February, 2000.
Switchboard Incorporated
/s/ John P. Jewett
By:
-----------------------------------
John P. Jewett
Vice President and Chief
Financial Officer
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 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 February 15, 2000
______________________________________ and Director (Principal
Douglas J. Greenlaw Executive Officer)
* President and Director February 15, 2000
______________________________________
Dean Polnerow
/s/ John P. Jewett Vice President, Chief February 15, 2000
______________________________________ Financial Officer,
John P. Jewett Treasurer and Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
* Chairman of the Board of February 15, 2000
______________________________________ Directors
William P. Ferry
* Director February 15, 2000
______________________________________
Daniel R. Mason
* Director February 15, 2000
______________________________________
Russell I. Pillar
* Director February 15, 2000
______________________________________
Richard M. Spaulding
* Director February 15, 2000
______________________________________
David N. Strohm
* Director February 15, 2000
______________________________________
Robert M. Wadsworth
*By: /s/ John P. Jewett February 15, 2000
_____________________________________
John P. Jewett
Attorney-in-Fact
</TABLE>
II-9
<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** Certificate of Amendment to Certificate of Incorporation of the
Registrant, as amended, effective as of February 4, 2000.
3.3** Amended and Restated Certificate of Incorporation of the Registrant,
to be effective upon the closing of this offering.
3.4** By-Laws of the Registrant.
3.5** Amended and Restated By-Laws of the Registrant, to be effective upon
the closing of this offering.
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, as amended, 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
the Registrant, 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")).
10.4A** Amendment No. 2 to Common Stock and Warrant Purchase Agreement,
effective as of July 1, 1999.
10.5** Advertising and Promotion Agreement by and among the Registrant,
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 the Registrant 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 the Registrant to CBS
Corporation, dated June 30, 1999 (Incorporated by reference to
Exhibit 10.2 of the August 16, 1999 Banyan Worldwide 10-Q).
10.7A Common Stock Purchase Warrant issued by the Registrant to CBS
Corporation, dated July 1, 1999.
10.8** Registration Rights Agreement by and between the Registrant and CBS
Corporation, dated June 30, 1999.
10.9** Right of First Refusal Agreement by and among the Registrant, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.10** Financial Reporting Agreement among the Registrant, Banyan Worldwide
and CBS Corporation, dated as of January 28, 2000.
10.11** Stockholders' Voting Agreement by and among the Registrant, Banyan
Worldwide and CBS Corporation, dated June 30, 1999.
10.12** Common Stock Purchase Warrant issued by the Registrant to Continuum
Software Inc., dated December 31, 1997.
10.13** Registration Rights Agreement by and between the Registrant and
Continuum Software Inc., dated December 31, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.14** Common Stock Purchase Warrant issued by the Registrant to US WEST
Dex, Inc., dated March 31, 1999.
10.15** Common Stock Purchase Warrant issued by the Registrant to Ameritech
Interactive Media, Inc., dated March 31, 1999.
10.16** Common Stock Purchase Warrant issued by the Registrant to Intelligent
Media Ventures, Inc., dated March 31, 1999.
10.17** Common Stock Purchase Warrant issued by the Registrant to SBC
Communications Inc., dated April 13, 1999.
10.18** Amended and Restated Registration Rights Agreement, as amended, by
and among the Registrant, America Online, Inc., Digital City Inc. and
Banyan Worldwide, dated February 20, 1998.
10.19** Amended and Restated Registration Rights Agreement by and between the
Registrant and Banyan Worldwide, dated May 3, 1999.
10.20** Services Agreement between the Registrant and Banyan Worldwide, dated
November 1, 1996.
10.21**+ Database License Agreement, as amended, by and between the Registrant
and infoUSA Inc., dated December 31, 1997.
10.22**+ Internet Provider Agreement, as amended, by and between the
Registrant and Etak, Inc., dated November 25, 1996.
10.23** Convertible Secured Note Purchase Agreement between the Registrant
and Banyan Worldwide, dated August 29, 1997, as amended.
10.24** Amended and Restated Convertible Note issued by the Registrant to
Banyan Worldwide on January 26, 2000.
10.25** Form of Registration Rights Agreement between the Registrant and
Banyan Worldwide.
10.26 Form of Services Agreement between the Registrant and Banyan
Worldwide.
10.27*** Form of Sublease between the Registrant and Banyan Worldwide.
10.28** Employment Agreement between the Registrant and Douglas J. Greenlaw,
dated October 8, 1999.
10.29** Employment Agreement between the Registrant and Dean Polnerow, dated
December 1, 1999.
10.30 Employment Agreement between the Registrant and John P. Jewett, dated
January 25, 2000.
10.31** Employment Agreement between the Registrant and James M. Canon, dated
December 31, 1999.
10.32**+ Internet Data Center Services Agreement between the Registrant and
Exodus Communications, Inc., effective June 30, 1998.
10.33** Nonstatutory Stock Option Agreement Granted Under 1999 Stock
Incentive Plan between the Registrant and Douglas J. Greenlaw, dated
October 13, 1999.
10.34** Nonstatutory Stock Option Agreement between the Registrant and
Douglas J. Greenlaw, dated October 13, 1999.
10.35** Incentive Stock Option Agreement between the Registrant and Dean
Polnerow, dated October 13, 1999.
10.36** Incentive Stock Option Agreement between the Registrant and John P.
Jewett, dated October 13, 1999.
10.37** Incentive Stock Option Agreement between the Registrant and James M.
Canon, dated October 13, 1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
10.38** Non-Statutory Stock Option Agreement between the Registrant and
William P. Ferry, dated September 14, 1999.
10.39** Non-Statutory Stock Option Agreement between the Registrant and
William P. Ferry, dated October 18, 1999.
10.40 Non-Statutory Stock Option Agreement between the Registrant and Daniel
R. Mason, dated September 14, 1999.
10.41** Non-Statutory Stock Option Agreement between the Registrant and
Richard M. Spaulding, dated September 14, 1999.
10.42** Non-Statutory Stock Option Agreement between the Registrant and David
N. Strohm, dated September 14, 1999.
10.43** Non-Statutory Stock Option Agreement between the Registrant and Robert
M. Wadsworth, dated September 14, 1999.
21** Subsidiaries of the Registrant.
23.1** Consent of PricewaterhouseCoopers LLP.
23.2** Consent of Hale and Dorr LLP (included in Exhibit 5).
24.1** Power of Attorney for Douglas J. Greenlaw, Dean Polnerow, John P.
Jewett, William P. Ferry, Daniel R. Mason, Richard M. Spaulding, David
N. Strohm and Robert M. Wadsworth.
24.2** Power of Attorney for Russell I. Pillar.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
*** Superseding exhibit.
+ 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 4
---------
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
NUMBER SHARES
[SWBD ] [ ]
THIS CERTIFICATE IS TRANSFERABLE CUSIP 871045 10 0
IN BOSTON, MA OR NEW YORK, NY
SEE REVERSE FOR
CERTAIN DEFINITIONS
[Logo of Switchboard Incorporated]
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $0.01 PAR VALUE, OF
Switchboard Incorporated transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed or assigned. This Certificate and the shares
represented hereby are issued and held subject to the laws of the State of
Delaware and to the provisions of the Certificate of Incorporation and the By-
Laws of the Corporation, all as from time to time amended, to which the holder
hereof assents. This Certificate is not valid until countersigned by the
Transfer Agent and registered by the Registrar.
IN WITNESS WHEREOF, Switchboard Incorporated has caused its facsimile
corporate seal and the facsimile signatures of its duly authorized officers to
be hereunto affixed.
Dated:
[SEAL OF Switchboard Incorporated]
/s/ John P. Jewett /s/ William P. Ferry
TREASURER CHAIRMAN OF THE
BOARD OF DIRECTORS
COUNTERSIGNED AND REGISTERED:
EQUISERVE TRUST COMPANY, N.A.
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
SWITCHBOARD INCORPORATED
The Corporation is authorized to issue more than one class or series of stock.
The Corporation will furnish without charge to each stockholder upon written
request a copy of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT- ________ Custodian ________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of survivorship under Uniform Gifts to Minors
and not as tenants in common Act________________________
COM PROP - as community property (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received ________________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[_________________________________________]___________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________ Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
___________________________________________________________________
______________________________________________________________________ Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated: _____________________
__________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranted:
_____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
Exhibit 10.7A
-------------
THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE (THE "WARRANT
SHARES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED
UNDER THE ACT. THE WARRANT SHARES MAY NOT BE SOLD OR OFFERED FOR SALE OR
OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT, (II) IN COMPLIANCE WITH THE LIMITATIONS
OF RULE 144 UNDER THE ACT, OR (III) PURSUANT TO AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT
REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE ALSO
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT.
Warrant No. SB-CBS-#2 Number of Shares: 763
(subject to adjustment)
Date of Issuance: July 1, 1999
SWITCHBOARD INCORPORATED
Common Stock Purchase Warrant
-----------------------------
Switchboard Incorporated, a Delaware corporation (the "Company"), for value
received, hereby certifies that CBS Corporation, a Pennsylvania corporation, or
its permitted transferees (the "Registered Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company, at any time or from time to
time on or after the earlier of (i) June 30, 2001 and (ii) the closing of the
Company's initial underwritten public offering of Common Stock registered under
the Securities Act of 1933, as amended (the "Securities Act"), and on or before
the earlier of (a) the second anniversary of the closing of the Company's
initial underwritten public offering of Common Stock registered under the
Securities Act and (b) June 30, 2004, at not later than 5:00 p.m. (Boston,
Massachusetts time), 763 shares of Common Stock, $.01 par value per share, of
the Company, at a purchase price of $1.00 per share. The shares purchasable
upon exercise of this Warrant, and the purchase price per share, each as
adjusted from time to time pursuant to the provisions of this Warrant, are
hereinafter referred to as the "Warrant Shares" and the "Purchase Price,"
respectively.
1. Exercise.
--------
(a) This Warrant may be exercised by the Registered Holder, in whole
or in part, by surrendering this Warrant, with the purchase form appended hereto
as Exhibit I duly executed by the Registered Holder or by the Registered
Holder's duly authorized attorney, at the principal office of the Company, or at
such other office or agency as the Company may
-1-
<PAGE>
designate, accompanied by payment (by wire transfer) in full, in lawful money of
the United States, of the Purchase Price payable in respect of the number of
Warrant Shares purchased upon such exercise.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day (the "Exercise
Date") on which this Warrant shall have been surrendered to the Company as
provided in Section 1(a) above. At such time, the Registered Holder shall be
deemed to have become the holder of record of the Warrant Shares.
(c) As soon as practicable after the exercise of this Warrant in full
or in part, and in any event within 15 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes):
(i) a certificate or certificates for the whole number of duly
authorized, validly issued, fully paid and non-assessable Warrant Shares to
which the Registered Holder shall be entitled upon such exercise plus, in lieu
of any fractional share to which the Registered Holder would otherwise be
entitled, cash in an amount determined pursuant to Section 3 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the number of such shares purchased by the Registered
Holder upon such exercise.
2. Adjustments.
-----------
(a) General. The Purchase Price shall be subject to adjustment from
-------
time to time pursuant to the terms of this Section 2.
(b) Diluting Issuances.
------------------
(i) Definitions. For purposes of this Section 2, the following
-----------
definitions shall apply:
(A) "Option" shall mean rights, options or warrants to
------
subscribe for, purchase or otherwise acquire Common Stock or Convertible
Securities, excluding options described in Section 2(b)(i)(D) below.
(B) "Original Issue Date" shall mean the date on which this
-------------------
Warrant was first issued.
(C) "Convertible Securities" shall mean any evidences of
----------------------
indebtedness, shares or other securities directly or indirectly convertible into
or exchangeable for Common Stock, but excluding Options.
-2-
<PAGE>
(D) "Additional Shares of Common Stock" shall mean all
---------------------------------
shares of Common Stock issued (or, pursuant to Section 2(b)(iii) below, deemed
to be issued) by the Company after the Original Issue Date, other than shares of
Common Stock issued or issuable:
(I) upon conversion or exchange of any Convertible
Securities or exercise of any Options outstanding on
the Original Issue Date, each of which is listed on
Schedule A attached hereto;
(II) by reason of a dividend, stock split, split-up or
other distribution on shares of Common Stock that are
covered by Sections 2(c) or 2(d) below;
(III) up to 4,000,000 shares of Common Stock (or options
with respect thereto) to employees or directors of, or
consultants or advisors to, the Company pursuant to a
plan, agreement or arrangement adopted by the Board of
Directors of the Company;
(IV) in the Company's initial public offering pursuant to a
registration statement under the Securities Act;
(V) pursuant to the Stock Warrant Agreement by and among
the Company, Ameritech Interactive Media, Inc.,
Intelligent Media Ventures, Inc., SBC Interactive and
U.S. West Dex, Inc., dated March 31, 1999, as it may
be amended from time to time;
(VI) pursuant to any past and present lending or line of
credit arrangement between the Company and Banyan
Systems Incorporated;
(VII) pursuant to the Technology Development and Marketing
Agreement between the Company and Continuum Software,
Inc., dated November 7, 1997, as it may be amended
from time to time; or
(VIII) pursuant to any future borrowing, loan, line of
credit, leasing or similar financing arrangement with
a bank, commercial lender, leasing company or other
person or for any other purpose (provided that the
shares issuable under this clause (VIII) shall be
limited to a maximum of 100,000).
The share number references in (III) and (VIII) are subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar event affecting such shares.
-3-
<PAGE>
(ii) No Adjustment of Purchase Price. No adjustments to the
-------------------------------
Purchase Price shall be made unless the consideration per share (determined
pursuant to Section 2(b)(v)) for an Additional Share of Common Stock issued or
deemed to be issued by the Company is less than $16.00 (subject to adjustment in
the same manner as the Purchase Price pursuant to Sections 2(c) and 2(d) below)
(the "Adjustment Price").
(iii) Issue of Securities Deemed Issue of Additional Shares of
--------------------------------------------------------
Common Stock. If the Company at any time or from time to time after the Original
- ------------
Issue Date shall issue (whether by sale or grant) any Options or Convertible
Securities or shall fix a record date for the determination of holders of any
class of securities entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock (as set forth in
the instrument relating thereto without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise
of such Options or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date, provided that Additional Shares of Common Stock shall not be
deemed to have been issued unless the consideration per share (determined
pursuant to Section 2(b)(v) hereof) of such Additional Shares of Common Stock
would be less than the Adjustment Price in effect on the date of and immediately
prior to such issue, or such record date, as the case may be, and provided
further that in any such case in which Additional Shares of Common Stock are
deemed to be issued:
(A) No further adjustment in the Purchase Price shall be
made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
(B) If such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Company, then upon the exercise, conversion or
exchange thereof, the Purchase Price computed upon the original issue thereof
(or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease insofar
as it affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) Upon the expiration or termination of any such
unexercised Option, the Purchase Price shall not be readjusted, but the
Additional Shares of Common Stock deemed issued as the result of the original
issue of such Option shall not be deemed issued for the purposes of any
subsequent adjustment of the Purchase Price;
(D) In the event of any change in the number of shares of
Common Stock issuable upon the exercise, conversion or exchange of any such
Option or Convertible Security, including, but not limited to, a change
resulting from the anti-dilution provisions thereof, the Purchase Price then in
effect shall forthwith be readjusted to such Purchase Price as would have
obtained had the adjustment which was made upon the issuance of such Option or
Convertible Security not exercised, converted or exchanged prior to such change
been made upon the basis of such change; and
-4-
<PAGE>
(E) No readjustment pursuant to clause (B) or (D) above
shall have the effect of increasing the Purchase Price to an amount which
exceeds the lower of (i) the Purchase Price on the original adjustment date, or
(ii) the Purchase Price that would have resulted from any issuances of
Additional Shares of Common Stock between the original adjustment date and such
readjustment date.
(iv) Adjustment of Purchase Price Upon Issuance of Additional Shares
---------------------------------------------------------------
of Common Stock. In the event the Company shall at any time after the Original
- ---------------
Issue Date issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Section 2(b)(iii), but excluding
shares issued as a dividend or distribution or upon a stock split or combination
as provided in Section 2(c)), without consideration or for a consideration per
share less than the Adjustment Price in effect on the date of and immediately
prior to such issue, then and in such event, the Purchase Price shall be
reduced, concurrently with such issue, to a price (calculated to the nearest
cent) determined by multiplying such Purchase Price by a fraction, (A) the
numerator of which shall be (1) the number of shares of Common Stock outstanding
immediately prior to such issue plus (2) the number of shares of Common Stock
which the aggregate consideration received or to be received by the Company for
the total number of Additional Shares of Common Stock so issued would purchase
at the Adjustment Price; and (B) the denominator of which shall be the number of
shares of Common Stock outstanding immediately prior to such issue plus the
number of such Additional Shares of Common Stock so issued; provided that, (i)
-------------
for the purpose of this Section 2(b)(iv), all shares of Common Stock issuable
upon exercise, conversion or exchange of Options or Convertible Securities
outstanding immediately prior to such issue shall be deemed to be outstanding,
and (ii) the number of shares of Common Stock deemed issuable upon exercise,
conversion or exchange of such outstanding Options and Convertible Securities
shall not give effect to any adjustments to the exercise or conversion price or
rate of such Options or Convertible Securities resulting from the issuance of
Additional Shares of Common Stock that is the subject of this calculation. For
the avoidance of doubt, any shares of Common Stock held by the Company as
treasury shares shall not be deemed to be outstanding.
Notwithstanding the foregoing, the applicable Purchase Price shall not
be so reduced at such time if the amount of such reduction would be an amount
less than $.05, but any such amount shall be carried forward and reduction with
respect thereto made at the time of and together with any subsequent reduction
which, together with such amount and any other amount or amounts so carried
forward, shall aggregate $.05 or more.
(v) Determination of Consideration. For purposes of this Section
------------------------------
2(b), the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(A) Cash and Property: Such consideration shall:
-----------------
(I) insofar as it consists of cash, be computed at the
aggregate of cash received by the Company, excluding amounts paid or payable for
accrued interest or accrued dividends;
-5-
<PAGE>
(II) insofar as it consists of property other than
cash, be computed at the fair market value thereof, as determined in good faith
by the Board of Directors; and
(III) in the event Additional Shares of Common Stock
are issued together with other shares or securities or other assets of the
Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (I) and (II) above,
as determined in good faith by the Board of Directors.
(B) Options and Convertible Securities. The consideration
----------------------------------
per share received by the Company for Additional Shares of Common Stock deemed
to have been issued pursuant to Section 2(b)(iii), relating to Options and
Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable
by the Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Company upon the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such Options or the conversion or exchange of such Convertible
Securities.
(vi) Multiple Closing Dates. In the event the Company shall issue on
----------------------
more than one date Additional Shares of Common Stock which are comprised of
shares of the same series or class of Preferred Stock, and such issuance dates
occur within a period of no more than 120 days, then the Purchase Price shall be
adjusted only once on account of such issuances, with such adjustment to occur
upon the final such issuance and to give effect to all such issuances as if they
occurred on the date of the final such issuance.
(vii) Limitation. Notwithstanding anything in this Warrant to the
----------
contrary, in no event shall the Purchase Price be adjusted pursuant to Section
2(b) to below $0.01 per share.
(c) Recapitalizations. If outstanding shares of the Company's Common
-----------------
Stock shall be subdivided into a greater number of shares or a dividend in
Common Stock shall be paid in respect of Common Stock, the Purchase Price in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced.
If outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Purchase Price in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased.
-6-
<PAGE>
(d) Mergers, etc. If there shall occur any capital reorganization or
------------
reclassification of the Company's Common Stock (other than a change in par value
or a subdivision or combination as provided for in Section 2(c) above), or any
consolidation or merger of the Company with or into another corporation, or a
transfer of all or substantially all of the assets of the Company, then, as part
of any such reorganization, reclassification, consolidation, merger or sale, as
the case may be, lawful provision shall be made so that the Registered Holder
shall have the right thereafter to receive upon the exercise hereof the kind and
amount of shares of stock or other securities or property which such Registered
Holder would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger or sale, as the case may
be, such Registered Holder had held the number of shares of Common Stock which
were then purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions set
forth herein with respect to the rights and interests thereafter of the
Registered Holder, such that the provisions set forth in this Section 2
(including provisions with respect to adjustment of the Purchase Price) shall
thereafter be applicable, as nearly as is reasonably practicable, in relation to
any shares of stock or other securities or property thereafter deliverable upon
the exercise of this Warrant.
(e) Adjustment in Number of Warrant Shares. When any adjustment is
--------------------------------------
required to be made in the Purchase Price pursuant to Section 2(c), the number
of Warrant Shares purchasable upon the exercise of this Warrant shall be changed
to the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Purchase Price in effect immediately prior to such adjustment,
by (ii) the Purchase Price in effect immediately after such adjustment.
(f) Certificate of Adjustment. When any adjustment is required to be
-------------------------
made pursuant to this Section 2, the Company shall promptly mail to the
Registered Holder a certificate setting forth the Purchase Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Such certificate shall also set forth the kind and amount of stock
or other securities or property into which this Warrant shall be exercisable
following such adjustment.
3. Fractional Shares. The Company shall not be required upon the exercise
-----------------
of this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the fair market value per share of Common
Stock, as determined in good faith by the Board of Directors of the Company.
4. Requirements for Transfer. Neither this Warrant nor any interest
-------------------------
herein is transferrable in any respect (other than to the Company or Banyan
Systems Incorporated); provided, however, that notwithstanding the foregoing,
-----------------
the Registered Holder may transfer the entire Warrant (but not less than the
entire Warrant) to any entity controlling, controlled by or under common control
of the Registered Holder if (1) written notice of such action is provided to the
Company, (2) the transferee agrees in writing as part of such notice to be bound
by this Agreement and (3) CBS Corporation remains primarily responsible for the
performance of all of the obligations of the Registered Holder hereunder. The
Warrant and the Warrant Shares are also subject to the restrictions on transfer
set forth in the Common Stock and Warrant Purchase
-7-
<PAGE>
Agreement, as amended, dated as of June 1, 1999 between the Company and the
Registered Holder, which terms are incorporated herein.
5. No Impairment. The Company will not, by amendment of its charter or
-------------
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate, including such action as may be necessary or
appropriate in order that the Company may validly and legally issue or sell
fully paid and non-assessable Warrant Shares upon exercise of this Warrant, in
order to protect the rights of the holder of this Warrant against impairment.
6. Notices of Record Date, etc. In case:
---------------------------
(a) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any reclassification
of the Common Stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity), or any transfer of all or substantially
all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten (10) days
prior to the record date or effective date for the event specified in such
notice.
7. Reservation of Stock. The Company will at all times reserve and keep
--------------------
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. All Warrant
Shares shall be duly authorized and, when issued upon such exercise, shall be
validly issued, fully paid and non-assessable and free and clear of all
preemptive rights, and free from all taxes, liens and other charges with respect
to the issue thereof by the Company. The Company will take all actions as may
be necessary to assure that
-8-
<PAGE>
the Warrant Shares issued upon a valid exercise hereof may be issued by the
Company without violation of any law or regulation, or of any requirement of any
domestic securities exchange upon which any capital stock of the Company may be
listed.
8. Replacement of Warrants. Upon receipt of evidence reasonably
-----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
9. Mailing of Notices, etc. All notices and other communications from the
-----------------------
Company to the Registered Holder shall be mailed by first-class certified or
registered mail, postage prepaid, to the address last furnished to the Company
in writing by the Registered Holder. All notices and other communications from
the Registered Holder or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
115 Flanders Road, Westboro, MA 01581, Attn: Chief Financial Officer, with
copies to the Company at the foregoing address, Attn: General Counsel, and to
Banyan Systems Incorporated, 120 Flanders Road, Westboro, MA 01581, Attn:
Chief Financial Officer and Hale and Dorr LLP, 60 State Street, Boston, MA
02109, Attn: Mark G. Borden, Esq. If the Company should at any time change the
location of its principal office to a place other than as set forth below, it
shall give prompt written notice to the Registered Holder and thereafter all
references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
10. No Rights as Stockholder. Until the exercise of this Warrant, the
------------------------
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
11. Change or Waiver. Any term of this Warrant may be changed or waived
----------------
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
12. Remedies. In case any one or more of the covenants and agreements
--------
contained in this Warrant shall have been breached, the Registered Holder (in
the case of a breach by the Company), or the Company (in the case of a breach by
the Registered Holder), may proceed to protect and enforce its rights either by
suit in equity and/or by action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Warrant.
13. Headings. The headings in this Warrant are for purposes of reference
--------
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
14. Governing Law. This Warrant will be governed by and construed in
-------------
accordance with the laws of the State of Delaware (without reference to the
conflicts of law provisions thereof).
-9-
<PAGE>
15. Waiver of Jury Trial. THE COMPANY AND THE REGISTERED HOLDER WAIVE THE
--------------------
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON.
[signatures on following page]
-10-
<PAGE>
SWITCHBOARD INCORPORATED
By: /s/ Dean Polnerow
-------------------
Name: Dean Polnerow
Title: President
ATTEST:
/s/ John P. Jewett
- ---------------------------------
(signature page to Switchboard warrant)
-11-
<PAGE>
Exhibit 10.26
-------------
SERVICES AGREEMENT
This Services Agreement (this "AGREEMENT") dated as of _______________,
2000 is entered into between Banyan Systems Incorporated, a Massachusetts
corporation ("BANYAN"), and Switchboard Incorporated a Delaware corporation
("SWITCHBOARD" and together with Banyan, the "PARTIES").
Recitals:
---------
A. On the date hereof, Switchboard has consummated an initial public
offering of its common stock (the "OFFERING").
B. Prior to the Offering, Switchboard was a majority-owned subsidiary of
Banyan. As a result of Switchboard's issuance of shares of its common stock in
the Offering, Switchboard no longer is a majority-owned subsidiary of Banyan.
C. Each of the Parties is a party to that certain Services Agreement dated
November 1, 1996, as amended (the "PRIOR SERVICES AGREEMENT"), pursuant to which
Banyan provides specified services to Switchboard.
D. Each of the Parties desires to terminate the Prior Services Agreement
and to enter into this Agreement with respect to the services to be provided to
Switchboard by Banyan now that Switchboard no longer is a majority-owned
subsidiary of Banyan.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the Parties hereby agree as follows:
1. SERVICES
1.1. Services to be Made Available. In accordance with the terms and
-----------------------------
provisions of this Agreement, Banyan agrees to perform for Switchboard the
services described in the Schedule hereto (collectively, the "SERVICES") in the
amounts and to the extent specified with respect to each such Service in the
Schedule.
1.2. Fees for Services. Switchboard agrees to pay to Banyan a fee for
-----------------
each of the Services as specified in the Schedule hereto.
Not more often than once per fiscal month, Banyan shall forward to
Switchboard invoices for the Services listing the Services provided hereunder
and listing the fees for such Services, setting forth in reasonable detail the
calculation of the amounts charged. Invoices for Services provided for partial
fiscal months and relating to Services for which the fees are to be calculated
on a monthly basis shall be based upon (a) the number of business days during
which services
<PAGE>
were provided, divided by (b) the number of business days in such fiscal month.
Within fifteen days of receiving an invoice, Switchboard shall pay to Banyan the
amount invoiced unless it shall in good faith dispute the types and/or amounts
of Services set forth on such invoice as having been provided during the period
covered by such invoice. In the event of such good faith dispute, Switchboard
shall pay the fees set forth on such invoice for all Services the amounts of
which are not in dispute and the Parties agree to use their respective best
efforts to resolve such dispute within ten days. If such dispute is not resolved
within ten days, either Party may seek binding arbitration of such dispute in
accordance with the provisions of Section 4.8 of this Agreement. With respect to
any task that Banyan agrees to perform hereunder, Banyan shall, at Switchboard's
request, inform Switchboard of the person(s) who are expected to perform such
tasks, such persons' hourly rates applicable thereto and an estimate of the time
such tasks will require to complete.
1.3. Term of Agreement. This Agreement is effective as of the date
-----------------
hereof and shall terminate with respect to each Service on the date specified
for such Service in the Schedule hereto.
1.4. Timely Performance and Cooperation. Banyan shall use all reasonable
----------------------------------
efforts in the timely performance of the Services and Switchboard shall use all
reasonable efforts to cooperate with Banyan in connection with the provision of
the Services.
2. REPRESENTATIONS AND WARRANTIES
As an inducement to enter into this Agreement, each Party represents to and
agrees with the other that:
(a) it is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and
has all requisite corporate power to own, lease and operate its properties,
to carry on its business as presently conducted and to carry out the
transactions contemplated by this Agreement;
(b) it has duly and validly taken all corporate action necessary to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby; and
(c) this Agreement has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable against it
in accordance with its terms, except as such enforceability may be affected
by laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
3. OTHER AGREEMENTS
Contemporaneously with the execution of this Agreement, and specifically in
the case of the Registration Rights Agreement (as defined below), as
consideration, in part, for entering into this Agreement, the Parties shall
enter into the following agreements:
(a) a sublease in the form appended hereto as Annex A; and
-------
-2-
<PAGE>
(b) a registration rights agreement in the form appended hereto
as Annex B (the "Registration Rights Agreement").
-------
4. OTHER TERMS AND PROVISIONS
4.1. Independent Contractor Status. Banyan shall perform all services
-----------------------------
under this Agreement as an "independent contractor" and not as an agent of
Switchboard. Banyan is not authorized to assume or create any obligation or
responsibility, express or implied, on behalf of, or in the name of Switchboard
or to bind Switchboard in any manner.
4.2. Limitation of Liability and Reimbursement. Neither Banyan, nor any
-----------------------------------------
of its officers, employees, agents or affiliates (including its attorneys and
accountants), shall in any event be liable for any damages, including but not
limited to loss of profits or revenue, which arise out of Banyan's (or any such
officer's, employee's, agent's or affiliate's) performance or failure to perform
any of its obligations under this Agreement, other than those damages caused by
Banyan's (or such person's) willful misconduct or gross negligence. Switchboard
hereby agrees to indemnify Banyan and hold Banyan harmless for all costs
(including attorneys' fees) and damages incurred by Banyan to third parties as a
result of the provision of Banyan pursuant to this Agreement of the Services,
other than costs or damages incurred by Banyan as a result of its willful
misconduct or gross negligence.
4.3. Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the Parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable, and the
Parties shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
4.4. Assignment. Except by operation of law or in connection with the
----------
sale of all or substantially all the business or assets of a Party, this
Agreement shall not be assignable, in whole or in part, directly or indirectly,
by either Party without the prior written consent of the other, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void; provided, that, the provisions of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by Banyan and
Switchboard and their respective successors and permitted assigns.
4.5. Further Assurance. Subject to the provisions hereof, each of Banyan
-----------------
and Switchboard shall make, execute, acknowledge and deliver such other
agreements, documents or instruments and take or cause to be taken such other
actions as may be reasonably required in order to effectuate the purposes of
this Agreement and to consummate the transactions contemplated hereby. Subject
to the provisions hereof, each of Banyan and Switchboard shall, in connection
with entering into this Agreement, performing its obligations hereunder and
taking any and all actions relating hereto, comply with all applicable laws,
regulations, orders and decrees, obtain all required consents and approvals and
make all required filings with any
-3-
<PAGE>
governmental agency, or other regulatory or administrative agency, commission or
similar authority and promptly provide the other with all such information as
the other may reasonably request in order to be able to comply with the
provisions of this sentence.
4.6. Parties in Interest. Nothing in this Agreement expressed or implied
-------------------
is intended or shall be construed to confer any right or benefit upon any person
or entity other than Banyan and Switchboard and their respective successors and
permitted assigns.
4.7. Waivers, Etc. No failure or delay on the part of Banyan or
------------
Switchboard in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement nor
consent to any departure by Banyan or Switchboard therefrom shall in any event
be effective unless the same shall be in writing and signed by the Party against
whom such modification or waiver is asserted and then such modification or
waiver shall be effective only in the specific instance and for the purpose for
which given.
4.8. Arbitration. Each Party may refer any dispute arising under this
-----------
Agreement or the matters contemplated hereby (including without limitation the
fees for Services provided hereunder) to binding arbitration in the Commonwealth
of Massachusetts under the commercial arbitration rules of the American
Arbitration Association before a panel of three arbitrators, one selected by
each Party and the third selected by the other two arbitrators or, if they are
unable to agree, by the American Arbitration Association. Any award made in
such arbitration may be enforced in any court of competent jurisdiction.
4.9. Changes of Law. If, due to any change in applicable law or
--------------
regulations or the interpretation thereof by any court of law or other governing
body having jurisdiction subsequent to the date of this Agreement, performance
of any provision of this Agreement or any transaction contemplated thereby shall
become impracticable or impossible, the Parties shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such provision.
4.10. Confidentiality. Subject to any contrary requirement of law and the
---------------
right of each Party to enforce its rights hereunder in any legal action, each
Party shall keep strictly confidential and shall cause its employees and agent
to keep strictly confidential any information which it or any of its agents or
employees may acquire pursuant to, or the course of performing its obligations
under, any provision of this Agreement; provided, that, such obligation to
maintain confidentiality shall not apply to information which (a) at the time of
disclosure was in the public domain not as a result of acts by the receiving
Party, (b) was in the possession of the receiving Party at the time of
disclosure, or (c) was received by the receiving Party from a third party that
does not require the receiving Party to maintain the confidentiality of such
information, and that is not in violation of any contractual, legal or fiduciary
obligation to the disclosing party with respect to such information.
4.11. Entire Agreement. Notwithstanding the provisions of Section 4 of the
----------------
Prior Services Agreement, the Prior Services Agreement is hereby amended so as
to be terminated in
-4-
<PAGE>
its entirety. This Agreement contains the entire understanding of the Parties
with respect to the provision of Services from Banyan to Switchboard.
4.12. Titles and Headings. Titles and headings to sections herein are
-------------------
inserted for the convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
4.13. Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
4.14. Notices. Any notice, request, demand, claim, or other communication
-------
hereunder shall be in writing and shall be delivered by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below, and shall be deemed duly given on the date which
is three days after the date such notice, request, demand, claim, or other
communication is sent:
Switchboard at: 115 Flanders Road
-------------- Westboro, MA 01581
Attention: Chief Financial Officer
Banyan at: 120 Flanders Road
--------- Westboro, MA 01581
Attention: Chief Financial Officer
Notwithstanding the foregoing, any Party may send any notice, request, demand,
claim, or other communication hereunder to the intended recipient at the address
set forth above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic mail),
but no such notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it is actually received by the
intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
4.15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the domestic substantive laws of the Commonwealth of
Massachusetts without regard to any choice or conflict of law rule or provision
that would result in the application of the domestic substantive laws of any
other jurisdiction.
* * * * *
-5-
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
BANYAN SYSTEMS INCORPORATED
By:
----------------------------------------
Richard M. Spaulding
Vice President and Chief Financial Officer
SWITCHBOARD INCORPORATED
By:
----------------------------------------
John P. Jewett
Vice President and Chief Financial Officer
-6-
<PAGE>
SCHEDULE TO SERVICES AGREEMENT
BETWEEN BANYAN SYSTEMS INCORPORATED
AND SWITCHBOARD INCORPORATED
SCOPE
- -----
This service agreement will cover the following areas:
* Physical layer infrastructure (hubs, routers, switches, firewalls, cabling
plant and shared corporate internet connectivity)
* Communications (phone services for moves, adds, and changes)
* Relationship Management (service reviews, change processes)
This agreement will not cover special projects such as implementation of Virtual
Private Networks, large-scale network changes or implementation of new internet
services. This agreement does not cover the Switchboard website. Any such
projects will be handled on an exception basis and resources provided
appropriately. The facilities and services described here are generally
consistent with those provided to Banyan in general. The service agreement is in
effect for a period of one year with an option for a one year renewal. Either
party may terminate this Agreement for convenience upon sixty (60) days advance
written notice to the other party.
FEES
- ----
The annual fee for service is $175,000 paid in monthly installments commencing
the date the Services Agreement is entered into, as set forth on page one of the
Services Agreement.
PHYSICAL INFRASTRUCTURE
- -----------------------
Banyan Information Systems ("BIS") is responsible for corporate infrastructure
maintenance and management. Switchboard maintains responsibility for the
Switchboard website infrastructure.
Physical infrastructure includes hubs, routers, switches, firewalls, cabling
plant and shared corporate internet connectivity and the support required to
both keep these functional at high levels of service, and to make adjustments as
needed due to organizational changes.
Switchboard currently has all responsibility for its servers and related file
and print servers.
COMMUNICATIONS
- --------------
Telecommunications services are provided to Switchboard and include PBX and
desktop phone service. Moves, adds and changes will be provided and in most
instances typical requests involving one to three users will be handled within
two business days.
-7-
<PAGE>
Large moves, adds or changes will normally require five business days. This
period is the result of our agreement with a third-party provider and may be
negotiable for a premium fee.
Any problems impacting service will be handled as outlined under support and
service and problems should be reported through whatever means available during
the problem period.
BIS provides Switchboard long distance service and calling cards.
MANAGEMENT
- ----------
* The agreed upon BIS and Switchboard staff will meet monthly, between the
15th and 30th, to review open issues and the general working relationship.
* Call tracking is essential, to provide for understanding and verification
of the types of issues, number of calls, and the responses provided by BIS.
-8-
<PAGE>
Exhibit 10.27
-------------
SUBLEASE
THIS SUBLEASE dated as of __________, 2000 between Banyan Systems
Incorporated (the "Sublandlord") and Switchboard Incorporated (the "Subtenant").
ARTICLE I
REFERENCE DATA
1.1 Subjects Referred To.
--------------------
Each reference in this Sublease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
<TABLE>
<S> <C>
Date of Sublease: _____________, 2000
Sublandlord: Banyan Systems Incorporated, a Massachusetts corporation
Sublandlord's Address: 120 Flanders Road, Westboro, Massachusetts 01581
Subtenant: Switchboard Incorporated, a Delaware corporation
Subtenant's Address: 115 Flanders Road, Westboro, Massachusetts 01581
Headlandlord: BerTech Flanders, LLC
Headlandlord's Address: c/o Steve Brooks, Asset Manager
Berkley Investment Inc.
121 High Street
Boston, MA 02110
Headlease: Lease Agreement dated as of November 14, 1986 by and between Arthur DiMartino, Jr., Trustee of
Flanders Realty Trust, as landlord, and Sublandlord, as tenant., as amended by a Lease Addendum dated
August 28, 1987, a Lease Addendum dated January 5, 1988, a Lease Extension and Modification Agreement
effective as of January 1, 1992, a Lease Extension and Modification Agreement dated April 15, 1993,
and a Fifth Lease Extension and Modification Agreement dated as of October 15, 1997.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Headleased Premises: The premises situated at 115 Flanders Road, Westboro, Massachusetts, as described in the Headlease,
containing approximately 64,654 rentable square feet (constituting all of the rentable square feet in
the building) (the "Building").
Premises: The Premises are shown on Exhibit B attached hereto. Beginning on March 1, 2000 the Premises shall also
include space shown on Exhibit C attached hereto.
Rentable Floor Area
of Premises: 9,572 Rentable Square Feet on the second floor of the Building. Beginning on March 1, 2000 the rentable
floor area of the Premises shall increase to 18,089 rentable square feet. Exact square footage shall be
verified by an architect in accordance with BOMA standards.
Commencement Date: ___________________, 2000
Term Expiration Date: ___________________, 2002
Extension Option: Subtenant shall have option to extend term until
September 30, 2005.
Rent Commencement
Date: ___________________, 2000
Monthly Fixed Rent: Time Period Monthly Rent
----------- ------------
3/1/2000-12/31/2002 $25,551.00
Security Deposit: None
Permitted Uses: All permitted uses in the Headlease.
Parking Spaces: Subtenant shall be entitled to use 80 parking spaces. Subject to prior written approval of Headlandlord
under the terms of the Headlease, Subtenant, at Subtenant's expense, may install several visitor parking
spaces in front of the entrance to the Premises.
Signs: Subject to prior written approval and signage criteria of Headlandlord under the terms of the Headlease,
Subtenant, at Subtenant's expense, may place signage at the entrance to
</TABLE>
2
<PAGE>
the Premises. Subtenant shall have its name and suite number inserted
into the building directory.
1.2 Exhibits.
--------
The exhibits listed below in this section are incorporated in this Sublease
by reference and are to be construed as part of this Sublease:
EXHIBIT A Headlease
EXHIBIT B & C Floor Plan of Premises
3
<PAGE>
ARTICLE II
PREMISES AND TERM
2.1 Premises. Subject to and with the benefit of the provisions of this
--------
Sublease, Sublandlord hereby subleases the Premises to Subtenant, and Subtenant
subleases the Premises from Sublandlord.
The Premises are subleased in their condition "as is" on the Commencement
Date.
2.2 Term. To have and to hold beginning on the Commencement Date and
----
continuing until the Term Expiration Date (the "Term"), subject to earlier
termination as provided herein.
2.3 Early Access. Sublandlord shall allow Subtenant access to the Premises
------------
prior to the Commencement Date to install cabling, telephone systems, furniture
partitions and to perform other necessary tenant improvement s. Prior to
Subtenant's entry into the Premises as permitted hereunder, Subtenant shall
submit a schedule to Sublandlord (and Sublandlord's contractor, if so requested
by Sublandlord), for their reasonable approval, which schedule shall detail the
timing and purpose of Subtenant's entry. Subtenant shall hold Sublandlord
harmless from and indemnify and protect and defend Sublandlord against any loss
or damage to the Premises or the Building and against injury to any person
caused by Subtenant's actions as a result of such entry, to the extent such loss
or damage is not covered by insurance carried or required to be carried under
this Sublease.
ARTICLE III
RENT
3.1 Monthly Fixed Rent. Subtenant shall pay Sublandlord the Monthly Fixed
------------------
Rent in advance on the first calendar day of each month included in the Term,
commencing on the Rent Commencement Date; and for any portion of a calendar
month at the beginning of or end of the Term, the corresponding fraction of the
Monthly Fixed Rent in advance. Monthly Fixed Rent shall include HVAC, nightly
janitorial service, electricity for lights and plugs and one security guard from
4 p.m. to 8a.m. Monday through Friday, with security available on call
throughout the weekends.
3.2 Additional Rent. Pursuant to the Headlease, Sublandlord is required
---------------
to pay 100% of all operating, tax, maintenance and repair costs for the Building
(as such terms are defined in the Headlease), and such other amounts payable as
in the Headlease (collectively, the "Operating Costs"). Subtenant shall pay
Sublandlord as additional rent hereunder 14.8% (increasing to 28% on March 1,
2000) of any increase
4
<PAGE>
over the base year of all Operating Costs allocable to the periods of time
included in the Term (the "Additional Rent"). The base year for real estate
taxes is July 1, 1999 through June 30, 2000 with real estate taxes in the amount
of $68,345. The base year for all other operating costs is the 2000 operating
budget with an amount of $6.35 per rentable square foot. Subtenant shall pay
such amount within ten (10) days of billing by Sublandlord, which bills shall
include, where applicable, copies of the applicable statements from
Headlandlord. Any surplus shall be promptly refunded to Subtenant and any
deficit in such payment shall be promptly paid by Subtenant after the
Headlandlord finally determines the amounts payable by the Sublandlord under the
Headlease.
Capital repairs and replacements to the roof, structural elements and Building
systems shall be the sole responsibility of the Sublandlord and shall not be
included in the Operating Costs.
3.3 Payment. All payments of Monthly Fixed Rent and Additional Rent shall
-------
be made to Sublandlord at Sublandlord's Address set forth in Section 1.1 or to
such other address as Sublandlord may designate by notice to Subtenant from time
to time.
ARTICLE IV
SUBTENANT'S COVENANTS
Subtenant covenants during the Term and such further time as Subtenant
occupies any part of the Premises:
4.1 Subtenant's Payments. Subtenant shall pay all Monthly Fixed Rent,
--------------------
Additional Rent and any other amounts payable when due.
4.2 Maintenance and Repair. Subtenant shall maintain the Premises in the
----------------------
condition required by the Headlease.
4.3 Occupancy and Use. Subtenant shall not use the Premises for any uses
-----------------
other than the Permitted Uses, and shall not make any use of the Premises which
is prohibited by any applicable law, ordinance, code, regulation, license,
permit, variances or governmental order.
4.4 Alterations and Additions. Subtenant shall not make any improvements,
-------------------------
repairs, alterations, replacements, decorations and/or additions to the Premises
without first obtaining the written approval of Sublandlord, which approval
shall not be unreasonably withheld or delayed, and the written approval of the
Headlandlord on the terms and conditions set forth in the Headlease.
5
<PAGE>
All construction work required or permitted by this Sublease shall be done
in a good and workmanlike manner and in compliance with all applicable laws and
all lawful ordinances, regulations and orders of governmental authority and
insurers of the building.
4.5 Assignment and Subletting. Except with Sublandlord's prior written
-------------------------
consent, which consent shall not be unreasonably withheld or delayed, Subtenant
shall not assign, transfer, mortgage or pledge this Sublease, or sublease (which
term shall be deemed to include the granting of concessions and licenses and the
like) all or any part of the Premises, or suffer or permit this Sublease or the
leasehold estate hereby created or any other rights arising under this Sublease
to be assigned, transferred or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, or permit the occupancy of
the Premises by anyone other than Subtenant. Any attempted assignment,
transfer, mortgage, pledge, sublease or encumbrance without such consent shall
be void.
In the event that any assignee or transferee of Subtenant pays to Subtenant any
amount in excess of the Monthly Fixed Rent, Additional Rent and any amounts
and/or charges then payable hereunder, Subtenant shall promptly pay one hundred
(100%) percent of said excess to Sublandlord as and when received by Subtenant.
If Subtenant shall receive from any assignee or transferee, either directly or
indirectly, any consideration for the assignment of this Sublease, either in the
form of cash, goods or services, Subtenant shall pay an amount equivalent to one
hundred (100%) percent of such consideration to Sublandlord as and when received
by Subtenant.
Notwithstanding the foregoing, any assignment, transfer, mortgage or pledge of
this Sublease is subject to and conditioned upon receipt of the prior written
consent of the Headlandlord as provided in the Headlease.
No assignment or subletting shall affect the continuing primary liability of
Subtenant (which, following assignment, shall be joint and several with the
assignee).
4.6 Indemnification. Subtenant shall indemnify Sublandlord and hold
---------------
Sublandlord harmless from and against any and all claims, demands, suits,
judgments, liabilities, costs and expenses, including reasonable attorneys'
fees, arising out of or in connection with Subtenant's use and possession of the
Premises and the exercise room, or arising out of the failure of Subtenant, its
agents, contractors or employees to perform any covenant, term or condition of
this Sublease or of the Headlease to be performed by Subtenant hereunder.
Sublandlord agrees to indemnify and hold Subtenant harmless from and against any
and all claims, demands, suits, judgments, liabilities, costs and expenses,
including reasonable attorneys' fees, arising out of the failure of Sublandlord,
its agents, contractors or employees to perform any covenant, term or condition
of this Sublease or of the Headlease to be performed by Sublandlord hereunder.
6
<PAGE>
4.7 Insurance. Subtenant shall maintain in responsible companies with a
----------
general policy rating of A or better and a financial class of VI or better by
A.M. Best, Inc. and qualified to do business and in good standing in
Massachusetts, comprehensive general liability insurance covering the premises
insuring Sublandlord and Headlandlord as well as Subtenant with limits which
shall, at the commencement of the Term, be at least $2,000,000 and from time to
time during the Term shall be for such higher limits, if any, as are customarily
carried in the Marlborough and Westboro areas with respect to similar properties
and worker's compensation insurance with statutory limits covering all of
Subtenant's employees working in the Premises. In addition, Subtenant shall be
responsible for insuring its personal property. Subtenant shall deposit
promptly with Sublandlord certificates for such insurance naming Sublandlord and
Headlandlord as additional insureds, and all renewals thereof bearing the
endorsement that the policies will not be canceled until after 30 days' written
notice to Sublandlord.
ARTICLE V
CASUALTY AND TAKING
5.1 Termination of Headlease. In the event that during the Term, all or
------------------------
any part of the Premises or the Headleased Premises are destroyed or damaged by
fire or other casualty or taken by eminent domain, and either Sublandlord or
Headlandlord terminates the Headlease pursuant to its terms because of such
damage, destruction or taking, then this Sublease shall likewise terminate on
the same date that the Headlease terminates. Sublandlord shall give Subtenant
prompt notice of such termination and the date on which it shall occur.
5.2 Repair and Restoration. In the event any such damage, destruction or
-----------------------
taking of the Premises occurs and this Sublease is not terminated pursuant to
Section 5.1 above, then Sublandlord shall use reasonable efforts to cause
Headlandlord to repair and restore the Premises to the extent required by the
terms of the Headlease.
5.3 Reservation of Award. Any and all rights to receive awards made for
--------------------
damages to the Premises and the leasehold hereby created accruing by reason of
exercise of eminent domain or by reason of anything lawfully done in pursuance
of public or other authority, are reserved to Sublandlord and Headlandlord.
Subtenant hereby releases and assigns to Sublandlord and Headlandlord all
Subtenant's rights to such award and covenants to deliver such further
assignments and assurances thereof as Sublandlord or Headlandlord may from time
to time request.
7
<PAGE>
ARTICLE VI
HEADLEASE
6.1 Sublease Subject to Headlease. This Sublease is subject to the
-----------------------------
Headlease. Subject to this Section 6.1, all terms and conditions of the
Headlease are incorporated into and made a part of this Sublease as if
Sublandlord were the landlord thereunder and Subtenant were the tenant. In case
of conflict between the incorporated provisions of the Headlease and the
remaining provisions of this Sublease, the latter shall control. Subtenant
assumes and agrees to perform the tenant's obligations under the Headlease
during the Term, except that the obligation to pay rent or other amounts to
Headlandlord under the Headlease shall not be an obligation of Subtenant, and
Subtenant shall instead pay the rent under this Sublease. Subtenant shall not
commit or suffer any act or omission that will violate any of the provisions of
the Headlease.
If the Headlease terminates as a result of a default or breach of
Subtenant under this Sublease and/or the Headlease, then the Subtenant shall be
liable to the Sublandlord for the direct damage suffered as a result of such
termination. Subtenant covenants not to commit or suffer any act or omission
that will violate the Headlease.
6.2 Excluded Obligations. Notwithstanding anything to the contrary
--------------------
herein, the incorporated provisions of the Headlease are amended or qualified as
follows:
i. Sublandlord shall not be liable under any circumstances for a loss of
or injury to property, or interference with Subtenant's business, however
occurring, incidental to any failure to furnish any utilities or services.
ii. Sublandlord shall have no responsibility to perform or construct (or
to pay the cost of performing or constructing) any repair, maintenance or
improvement in or to the Premises, except as specifically set forth in Section
2.1 of this Sublease.
iii. Rent shall be abated under this Sublease only to the extent that
Sublandlord receives a corresponding rent abatement under the Headlease.
iv. Wherever the Headlease grants to Sublandlord a grace or cure period,
the corresponding grace or cure period under this Sublease shall be two (2)
business days shorter in duration.
The parties acknowledge that Sublandlord's ability to satisfy certain of
its obligations to Subtenant under this Sublease is contingent upon the full and
timely performance of Headlandlord's obligations under the Headlease. The
parties further acknowledge that, while Sublandlord will use reasonable efforts
to cause Headlandlord to perform its obligations under the Headlease,
Sublandlord will not be liable to Subtenant for any breach of Sublandlord's
obligations under this Sublease, nor shall such breach diminish Sublandlord's
rights hereunder, where the same is caused by or attributable to the failure of
Headlandlord to perform its obligations under the Headlease.
8
<PAGE>
6.3 Headlandlord's Rights. Headlandlord shall have all rights with
---------------------
respect to the Premises which it has reserved to itself as landlord under the
Headlease.
6.4 Termination of Headlease. In the event that Headlandlord terminates
------------------------
the Headlease pursuant to its terms or the Headlease otherwise terminates or
expires, this Sublease shall likewise and simultaneously terminate.
ARTICLE VII
MISCELLANEOUS
7.1 Notices from One Party to the Other. All notices required or
-----------------------------------
permitted hereunder shall be in writing, duly signed by the party giving such
notice and transmitted by prepaid registered or certified mail, return receipt
requested, by telegram or telefax, or delivered by hand, and addressed as
follows:
to Sublandlord: Banyan Systems Incorporated
120 Flanders Road
Westboro, MA 01581
Fax No. (508) 366-6846
Attn: Legal Department
to Subtenant: Switchboard Incorporated
115 Flanders Road
Westboro, MA 01581
Fax No. (508) 870-2000
Attn: John P. Jewett
or to such other address as Sublandlord or Subtenant shall designate by written
notice to each other. Any notice shall be deemed duly given on the second
business day following the date of mailing, or when delivered to such address by
hand, or if transmitted by telefax or telegram, on the business day received.
7.2 Estoppel Certificate. Upon not less than twenty (20) days prior
--------------------
notice by the requesting party, either party shall execute, acknowledge and
deliver to the other a statement in writing, addressed to such person as the
requesting party shall designate, certifying (a) that this Sublease is
unmodified and in full force and effect, (b) the dates to which Monthly Fixed
Rent, Additional Rent have been paid, and (c) that the requesting party is not
in default hereunder (or, if in default, specifying the nature of such default
in reasonable detail). Any such certificate may be relied upon by the person to
which it is addressed as to the facts stated therein.
9
<PAGE>
7.3 Brokerage. Subtenant and Sublandlord mutually represent and warrant
---------
that they have dealt with no broker in connection with this transaction. Each
agrees to defend, indemnify and save the other harmless from and against any and
all cost, expense or liability for any compensation, commissions or charges
claimed by any broker or agent, with respect to the indemnifying party's
dealings in connection with this Sublease.
7.4 Applicable Law. This Sublease shall be governed by and construed in
--------------
accordance with the laws of the Commonwealth of Massachusetts.
7.5 Security Deposit. Upon execution of this Sublease, Subtenant shall
----------------
deliver to Sublandlord the Security Deposit, such sum to be held by Sublandlord
as security for the performance of Subtenant's obligations under this Sublease.
The Security Deposit shall be held by Sublandlord without interest and
Sublandlord shall be entitled to commingle the Security Deposit with its other
funds.
7.6 Construction. If any term, covenant, condition or provision of this
------------
Sublease or the application thereof to any person or circumstances shall be
declared invalid or unenforceable by the final ruling of a court of competent
jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Sublease and their application to persons or circumstances
shall not be affected thereby and shall continue to be enforced and recognized
as valid agreements of the parties.
This Sublease constitutes the entire agreement between the parties hereto
with respect to the transactions contemplated herein, and it supersedes all
prior discussions, understandings or agreements, including without limitation
the Offer To Sublease, between the parties.
There are no oral or written agreements between Sublandlord and Subtenant
affecting this Sublease. This Sublease may be amended, and the provisions
hereof may be waived or modified, only by instruments in writing executed by
Sublandlord and Subtenant.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Sublease.
Unless repugnant to the context, the words "Sublandlord" and "Subtenant"
appearing in this Sublease shall be construed to mean those named above and
their respective heirs, executors, administrators, successor and assigns, and
those claiming through or under them respectively. If there be more than one
tenant, the obligations imposed by this Sublease upon Subtenant shall be joint
and several.
7.7 Right of First Offer for Second Floor on 120 Flanders Road. Provided
----------------------------------------------------------
that Subtenant is not in default in the performance or observance of any of the
terms and
10
<PAGE>
provisions of this Sublease or the Headlease, if Sublandlord intends during the
Term of this Sublease, to market the Second Floor Space of 120 Flanders Road
consisting of approximately 18,111 rentable square feet when it becomes
available for leasing (the "Second Floor Space"), then Sublandlord will present
a term sheet (the "Offer") for the leasing of the Second Floor Space to
Subtenant. Except as otherwise set forth in the Offer, the lease of the Second
Floor Space shall be on the terms and conditions set forth in this Sublease.
Upon its receipt of the Offer, Subtenant shall have seven (7) business days to
accept or reject the Offer. If Subtenant accepts the Offer within said seven
day period, Sublandlord and Subtenant shall execute a lease for such Second
Floor Space on the terms set forth in the Offer within thirty (30) days of
Subtenant's acceptance of the Offer. In the event Subtenant does not accept the
Offer within said seven day period or Sublandlord and Subtenant do not execute a
lease on the terms set forth in the Offer within said thirty day period, then
Sublandlord shall have the right to lease the Second Floor Space on terms which
Sublandlord reasonably determines to be at least 90% as economically beneficial
to Sublandlord as those set forth in the Offer without reoffering the Second
Floor Space to Subtenant. If (i) Sublandlord wishes to lease the Second Floor
Space on terms less than 90% as economically beneficial to Sublandlord, or (ii)
Sublandlord does not enter into a lease for the Second Floor Space within 180
days of the submission of the Offer to Subtenant, then the Second Floor Space
shall first be subject to re-submission to Subtenant pursuant to the terms of
this Section prior to Sublandlord's leasing of the same.
In the event Subtenant accepts the Offer to lease the Second Floor Space,
Subtenant shall be solely responsible for any and all costs associated with
relocating or moving Subtenant from the Premises to the Second Floor Space.
7.8 Access and Security. Normal Building hours shall be from 7:00 a.m. to
-------------------
6:00 p.m. Monday through Friday. The Building has a twenty-four (24) hour card
access system. Subtenant shall be responsible for its own security card access
at the entrance to the Premises.
7.9 Cafeteria. Subtenant shall have the right to use the cafeteria at 115
---------
Flanders Road during the Term of this Sublease.
7.10 Option to Extend. Subtenant shall have the right and option to extend
----------------
the Term for an additional two (2) years and nine (9) months until September 30,
2005 (the "Extension Term") commencing upon the expiration of the original Term
referred to in Section 2.2 (the "Original Term"), provided that Subtenant shall
give Sublandlord notice of Subtenant's irrevocable exercise of such option at
least ninety (90) days prior to the expiration of the Original Term and provided
further that Subtenant shall not be in default at either the time of giving such
notice or at the time of the commencement of the Extension Term in the
performance or observance of any of the terms and
11
<PAGE>
provisions of this Sublease on the part of Subtenant to be performed or
observed. Prior to the exercise by Subtenant of such option, the expression
"Term" shall mean the Original Term, and after the exercise by Subtenant of such
option, the expression "Term" shall mean the Original Term as it has been
extended by the Extension Term. Except as expressly otherwise provided in the
following paragraph, all the terms, covenants, conditions, provisions and
agreements in the Sublease contained shall be applicable to the Extension Term.
If Subtenant shall give notice of its exercise of such option to extend in the
manner and within the time period provided aforesaid, the Term shall be extended
upon the giving of such notice without the requirement of any further action on
the part of either Subtenant or Sublandlord. If Subtenant shall fail to give
timely notice of the exercise of such option as aforesaid, Subtenant shall have
no right to extend the Term of this Sublease, time being of the essence of the
foregoing provisions.
The Monthly Fixed Rent payable during the Extension Term shall be the greater of
(i) the Monthly Fixed Rent in effect for the year immediately preceding the
commencement of the Extension Term or (ii) the Fair Market Rent for the
Premises, as determined below, as of the commencement of the Extension Term. If
for any reason the Monthly Fixed Rent payable during the Extension Term has not
been determined as of the commencement of the Extension Term, Subtenant shall
pay the Monthly Fixed Rent payable during the immediately preceding year until
the Monthly Fixed Rent for the Extension Term is determined, at which time, an
appropriate adjustment, if any, shall be made.
For purposes hereof, the Fair Market Rent shall mean the fair rent for the
Premises as of the commencement of the Extension Term under market conditions
then existing. Fair Market Rent shall be determined by agreement between
Sublandlord and Subtenant, but if Sublandlord and Subtenant are unable to agree
upon the Fair Market Rent at least two (2) months prior to the date upon which
the Fair Market Rent is to take effect, then the Fair Market Rent shall be
determined by appraisal made as hereinafter provided by a board of three (3)
reputable independent commercial real estate consultants, appraisers, or
brokers, each of whom shall have at least ten (10) years of experience in the
Westboro office rental market and each of whom is hereinafter referred to as
"Appraiser". Subtenant and Sublandlord shall each appoint one such Appraiser
and the two (2) Appraisers so appointed shall appoint the third Appraiser. The
cost and expenses of each Appraiser appointed separately by Subtenant and
Sublandlord shall be borne by the party who appointed the Appraiser. The cost
and expense of the Third Appraiser shall be shared equally by Subtenant and
Sublandlord. Sublandlord and Subtenant shall appoint their respective
Appraisers at least fifty-five (55) days prior to commencement of the Extension
Term and shall designate the Appraisers so appointed by notice to the other
party. The two Appraisers so appointed and designated shall appoint the third
Appraiser at least forty-five (45) days prior to the commencement of the
Extension Term and shall designate such Appraiser by notice to Sublandlord and
Subtenant. The board of three (3) Appraisers shall determine the Fair Market
Rent of
12
<PAGE>
the Premises as of the commencement of the Extension Term and shall notify
Sublandlord and Subtenant of their determinations at least thirty (30) days
prior to the commencement of the Extension Term. If the determination of the
Fair Market Rent of any two (2) or all three (3) Appraisers shall be identical
in amount, said amount shall be deemed to be the Fair Market Rent of the
Premises. If the determination of all three (3) Appraisers shall be different in
amount, the average of the two (2) values nearest in amount shall be deemed the
Fair Market Rent of the Premises. The Fair Market Rent of the Premises
determined in accordance with the provisions of this Section shall be binding
and conclusive on Subtenant and Sublandlord.
7.11 Consent of Headlandlord. Subtenant acknowledges that this Sublease is
-----------------------
subject to the consent of the Headlandlord. Within three (3) business days
after the execution of this Sublease, Sublandlord shall notify and forward an
originally executed copy of this Sublease to the Headlandlord and shall request
Headlandlord's consent thereto. Upon receiving Headlandlord's response,
Sublandlord shall notify Subtenant as to whether or not the Headlandlord
consented to the sublease. In the event the Headlandlord does not consent to
the sublease, this Sublease shall terminate and be of no further force or
effect.
THIS SUBLEASE is executed as a sealed instrument in two or more
counterparts on the day and year first above written.
SUBLANDLORD:
BANYAN SYSTEMS INCORPORATED
By: _____________________________
Name:
Title:
SUBTENANT:
SWITCHBOARD INCORPORATED
By: ____________________________
Name:
Title:
13
<PAGE>
Exhibit 10.30
-------------
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement"), made this 25th day of
January, 2000 is entered into by and between Switchboard Incorporated, a
Delaware corporation (the "Company"), and John P. Jewett (the "Employee").
1. Title; Capacity. The Employee shall serve as Vice President, Chief
---------------
Financial Officer, Treasurer and Secretary, or in such other position as the
Company or its Board of Directors (the "Board") may determine from time to time.
The Employee shall be subject to the supervision of, and shall have such
authority as is delegated to him by, the Board or such officer of the Company as
may be designated by the Board.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and
responsibilities as the Board or its designee shall from time to time reasonably
assign to him. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company while
employed by the Company.
2. At-Will Employment. The Employee shall be employed on an at-will
------------------
basis, which means either party may terminate the employment relationship at any
time, for any reason or no reason, and with or without notice, subject to the
provisions of this Agreement.
3. Compensation and Benefits.
-------------------------
3.1 Salary. The Company shall pay the Employee a base salary at the
------
annualized rate of one hundred and twenty-five thousand dollars ($125,000), in
equal bi-weekly
<PAGE>
installments, consistent with the Company's regular payroll procedures.
Employee's salary shall be subject to adjustment, as determined by the Board.
3.2 Bonus. The Employee shall be eligible to receive an annual bonus
-----
payable quarterly and targeted at an annual rate of fifty-five thousand dollars
($55,000) for the one-year period beginning on January 1, 2000, in the event
that certain criteria are met, as specifically discussed and defined with the
Employee periodically by the Company's Chief Executive Officer. Such bonus
shall be subject to adjustment thereafter as determined by the Board.
3.3 Benefits. The Employee shall be entitled to participate in all
--------
benefit programs that the Company establishes and makes available to its
employees, if any, to the extent that Employee's position, tenure, salary, age,
health and other qualifications make him eligible to participate.
4. Change in Control.
-----------------
4.1 Stock Options. In the event of a Change in Control, fifty
-------------
percent (50%) of the Employee's outstanding unvested stock options shall
immediately vest and become exercisable in full, if:
(i) the Employee remains employed by the Company for a
continuous period of six (6) months after the effective Change in Control date;
or
(ii) the Employee elects to resign within six (6) months of the
effective Change in Control date because the Employee's job title and/or overall
targeted cash compensation are materially reduced from levels in effect
immediately prior to the Change in Control.
4.2 "Change in Control" means an event or occurrence set forth in
-----------------
any one or
-2-
<PAGE>
more of subsections (a) through (d) below (including an event or occurrence that
constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), other than Banyan Worldwide or
CBS Corporation, of beneficial ownership of any capital stock of the Company if,
after such acquisition, such Person beneficially owns (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) 20% or more of either (i) the
then-outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
--------
for purposes of this subsection (a), the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly from the Company
(excluding an acquisition pursuant to the exercise, conversion or exchange of
any security exercisable for, convertible into or exchangeable for common stock
or voting securities of the Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Company or an
underwriter or agent of the Company), (ii) any acquisition by the Company, (iii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iv)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i) and (ii) of subsection (c) of this Section 4.2; or
-3-
<PAGE>
(b) such time as the Continuing Directors (as defined below) do
not constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term "Continuing
Director" means at any date a member of the Board (i) who was a member of the
Board on the date of the execution of this Agreement or (ii) who was nominated
or elected subsequent to such date by at least a majority of the directors who
were Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; provided, however, that there shall be excluded from this clause (ii)
any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (i) all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
-4-
<PAGE>
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the "Acquiring Corporation") in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
respectively; and (ii) no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 20%
or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors
(except to the extent that such ownership existed prior to the Business
Combination); or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
5. Circumstances Triggering Receipt of Termination Benefits.
--------------------------------------------------------
5.1 Termination by the Company. the Company shall provide the
--------------------------
Employee with the benefits set forth in Section 6 upon termination by the
Company of the Employee's employment at any time during the term of this
Agreement for reasons other than termination for "cause." For the purposes
hereof, "cause" shall be defined as the willful and repeated failure of the
Employee to perform substantially his duties, or action by the Employee
involving willful misfeasance, gross negligence or the commission of any
felonious action; provided, however, that termination for cause shall not be
effective unless the Employee shall have received written
-5-
<PAGE>
notice from the Company of such failure (specifying in detail the facts and
circumstances on which the Company is relying) and a demand for substantial
performance thirty (30) days prior to such termination, and the Company
determines that the Employee shall have failed during such thirty (30) day
period to resume the diligent performance of his duties. If Employee, in good
faith, disputes the Company's determination that he has not so resumed the
diligent performance of his duties, the parties agree to submit such dispute to
arbitration in accordance with the provisions of Section 12 below.
5.2 Termination by Employee. the Company shall provide the Employee
-----------------------
with the benefits set forth in Section 6 upon termination by the Employee of the
Employee's employment with the Company at any time during the term of this
Agreement if the Employee's job title and/or overall targeted cash compensation
are materially reduced from levels in effect at the commencement of the initial
or any renewal term of this Agreement (the "Material Reduction") and the
Employee elects to resign within 90 days of said Material Reduction.
5.3 Notice of Termination. Any termination of the Employee's
---------------------
employment by the Company or by the Employee as referred to in this Section
shall be communicated by written notice of termination to the other party.
6. Termination Benefits. Subject to and in accordance with the
--------------------
provisions set forth in Section 5, and further subject to the execution of a
release agreement, the terms of which are agreeable to both parties and which
agreement to such terms may not be unreasonably withheld, the following benefits
(subject to any applicable taxes required to be withheld) shall be paid to the
Employee as follows:
(a) Compensation. The Employee will be paid his base salary for a
------------
period of
-6-
<PAGE>
six months from the effective date of his termination (the "Continuation
Period"), in the event that the Employee remains unemployed during the
Continuation Period. If the Employee obtains other employment during the
Continuation Period, any salary continuation will cease unless the Employee's
new employment is at a base salary lower than his base salary under Section 3.1,
in which case the Company will pay the Employee the difference between his base
salary under Section 3.1 and his new base salary during the Continuation Period.
(b) Insurance Benefits, etc. The Employee's participation (including
-----------------------
dependent coverage) in the life, health and dental insurance plans (excluding
further participation in the existing 401K Plan) of the Company in effect
immediately prior to the effective date of Employee's termination shall be
continued, or equivalent benefits provided, by the Company, at the Employee's
then current contribution rate for such benefits for a period of up to six
months commencing on the effective date of Employee's termination in the event
that the Employee remains unemployed during the Continuation Period. If
Employee obtains other employment during the Continuation Period, any continuing
benefits will cease.
7. Continuing Obligations. In order to induce the Company to enter
----------------------
into this Agreement, the Employee hereby ratifies and confirms his Invention and
Non-Disclosure Agreement with the Company. Without limiting the generality of
the foregoing, the Employee agrees that all documents, records, techniques,
business secrets and other information which have come into his possession from
time to time during his employment hereunder shall be deemed to be confidential
and proprietary to the Company and he shall retain in confidence any
confidential information known to him concerning the Company and its parent
and/or subsidiaries and their respective businesses and such information shall
not be disclosed.
-7-
<PAGE>
8. Other Agreements. Employee hereby represents that he is not bound by
----------------
the terms of any agreement with any previous employer or other party to refrain
from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Employee further represents that his performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or in trust prior to his employment with the
Company.
9. Notices. All notices required or permitted under this Agreement shall
-------
be in writing and shall be deemed effective upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the other in
accordance with this Section 9.
10. Pronouns. Whenever the context may require, any pronouns used in this
--------
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
11. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
including but not limited to the October 16, 1998 Offer Letter, except as
otherwise specified in this Agreement. Employee's October 28, 1998 Invention
and Non-Disclosure Agreement, and Employee's December 8, 1998 Incentive Stock
Option Agreement and October 18, 1999 Incentive Stock Option Agreement will
remain in full force and
-8-
<PAGE>
effect, except as otherwise specified in this Agreement.
12. Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement or the breach thereof shall be settled by arbitration to be
conducted in Boston, Massachusetts, in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
13. Amendment. This Agreement may be amended or modified only by a
---------
written instrument executed by both the Company and the Employee.
14. Governing Law. This Agreement shall be construed, interpreted and
-------------
enforced in accordance with the laws of the Commonwealth of Massachusetts.
15. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.
16. Term. The initial term of this Agreement shall be for a period of
----
twelve (12) months commencing on the effective date of this Agreement.
Thereafter, this Agreement shall be automatically renewed for successive twelve
(12) month periods unless either party indicates its intent not to renew by
giving at least sixty (60) days written notice prior to the expiration of the
then-current term.
17. Miscellaneous.
-------------
17.1 No delay or omission by the Company in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the
-9-
<PAGE>
Company on any one occasion shall be effective only in that instance and shall
not be construed as a bar or waiver of any right on any other occasion.
17.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
17.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
-10-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
SWITCHBOARD INCORPORATED
By: /s/ Dean Polnerow
--------------------------------
Name: Dean Polnerow
Title: President
JOHN P. JEWETT
/s/ John P. Jewett
------------------------------------
-11-
<PAGE>
Exhibit 10.40
-------------
Non-Statutory Stock Option Agreement
1. Grant of Option. Switchboard Incorporated, a Delaware corporation
---------------
(the "Company"), hereby grants to Daniel Mason (the "Optionee") an option,
------------
pursuant to the Company's 1996 Stock Incentive Plan (the "Plan"), to purchase an
aggregate of 40,000 shares of Common Stock, $.01 par value per share, of the
------
Company ("Common Stock"), at a price of $8.50 per share, purchasable as set
-----
forth in and subject to the terms and conditions of this option and the Plan.
The date of grant of this option is September 14, 1999. Except where the
------------------
context otherwise requires, the term "Company" shall include the parent and all
present and future subsidiaries of the Company as defined in Sections 424(e) and
424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to
time (the "Code").
2. Non-Statutory Stock Option. This option is not intended to qualify as
--------------------------
an incentive stock option within the meaning of Section 422 of the Code.
3. Exercise of Option and Provisions for Termination.
-------------------------------------------------
(a) Vesting Schedule. Except as otherwise provided in this
----------------
Agreement, this option may be exercised prior to the tenth anniversary of the
date of grant (hereinafter the "Final Exercise Date") in installments as to not
more than the number of shares set forth in the table below during the
respective installment periods set forth in the table below.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Percentage of
Shares as to which
Exercise Period Option is Exercisable
- --------------- ---------------------
- --------------------------------------------------------------------------------
<S> <C>
Prior to 12 months after the date of grant -0%-
- --------------------------------------------------------------------------------
From and after 12 months after the date of -25%-
grant but prior to 24 months after the date
of grant
- --------------------------------------------------------------------------------
From and after 24 months after the date of -50%-
grant but prior to 36 months after the date
of grant
- --------------------------------------------------------------------------------
From and after 36 months after the date of -75%-
grant but prior to 48 months after the date
of grant
- --------------------------------------------------------------------------------
From and after 48 months after date of grant -100%-
- --------------------------------------------------------------------------------
</TABLE>
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible during any exercise period, it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time prior to the Final Exercise Date or the earlier termination of this
option. This option may not be exercised at any time on or after the Final
Exercise Date.
<PAGE>
Notwithstanding anything to the contrary in this option or in the Plan,
this option will vest as to 100% of the then-unvested shares upon the occurrence
of a Change of Control (as defined herein). For the purposes of this option, a
"Change of Control" shall mean an event or occurrence set forth in any one or
more of clauses (i) through (iv) below (including an event or occurrence that
constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
(i) the acquisition by an individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person"), other than Banyan Worldwide or
CBS Corporation, of beneficial ownership of any capital stock of the
Company if, after such acquisition, such Person beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) 20% or more
of either (A) the then-outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (B) the combined voting power
of the then-outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this clause (i), the
--------
following acquisitions shall not constitute a Change in Control: (I) any
acquisition directly from the Company (excluding an acquisition pursuant to
the exercise, conversion or exchange of any security exercisable for,
convertible into or exchangeable for common stock or voting securities of
the Company, unless the Person exercising, converting or exchanging such
security acquired such security directly from the Company or an underwriter
or agent of the Company), (II) any acquisition by the Company, (III) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(IV) any acquisition by any corporation pursuant to a transaction which
complies with clauses (A) and (B) of clause (iii) of this Section 3(a); or
(ii) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term
"Continuing Director" means at any date a member of the Board (A) who was
a member of the Board on the date of the execution of this Agreement or (B)
who was nominated or elected subsequent to such date by at least a majority
of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Board was recommended or
endorsed by at least a majority of the directors who were Continuing
Directors at the time of such nomination or election; provided, however,
-------- -------
that there shall be excluded from this clause (B) any individual whose
initial assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents, by or on behalf of a person other than the Board; or
(iii) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), unless, immediately following such
Business Combination, each of the following two conditions is satisfied:
(A) all or substantially all of the individuals and entities who were the
<PAGE>
beneficial owners of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then-
outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company or
substantially all of the Company's assets either directly or through one or
more subsidiaries) (such resulting or acquiring corporation is referred to
herein as the "Acquiring Corporation") in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, respectively; and (B) no Person (excluding the
Acquiring Corporation or any employee benefit plan (or related trust)
maintained or sponsored by the Company or by the Acquiring Corporation)
beneficially owns, directly or indirectly, 20% or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election of directors (except
to the extent that such ownership existed prior to the Business
Combination); or
(iv) approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
(b) Exercise Procedure. Subject to the conditions set forth in this
------------------
Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) Continuous Relationship with the Company Required. This option
-------------------------------------------------
may not be exercised unless the Optionee, at the time he or she exercises this
option, is, and has been at all times since the date of grant of this option, an
employee of either the Company or Banyan Worldwide, officer or director of, or
consultant or advisor to, the Company (an "Eligible Optionee").
(d) Termination of Employment. If the Optionee ceases to be employed
-------------------------
by the Company for any reason (including without limitation death, disability,
or voluntary or involuntary termination), then the right to exercise this option
shall terminate 30 days after such cessation.
(e) Early Exercise Alternative. Notwithstanding the exercisability
--------------------------
schedule set forth in paragraph (a), the Optionee may elect to exercise this
option as to the unvested shares (in addition to the vested shares) if
simultaneously with such exercise the Optionee enters into a Stock Restriction
Agreement with the Company in the form attached hereto as Exhibit A
---------
(the "Stock Restriction Agreement"). The Stock Restriction Agreement provides
that the unvested shares shall be subject to a right of repurchase (the
"Purchase Option") in favor of the Company at the $8.50 exercise price (as
adjusted pursuant to the terms hereof) in the event that the Optionee ceases to
be employed by the Company.
4. Payment of Purchase Price.
-------------------------
<PAGE>
(a) Method of Payment. Payment of the purchase price for shares
-----------------
purchased upon exercise of this option shall be made by delivery of cash or a
check in an amount equal to the exercise price of such option or, with the prior
consent of the Company (which may be withheld in its sole discretion), by (A)
delivery of shares of Common Stock owned by the Optionee for at least six
months, valued at their fair market value, as determined in (b) below, (B)
delivery of a promissory note of the Optionee to the Company on terms determined
by the Board, (C) delivery of an irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise price or delivery
of irrevocable instructions to a broker to deliver promptly to the Company cash
or a check sufficient to pay the exercise price, (D) payment of such other
lawful consideration as the Board may determine, or (E) any combination of the
foregoing.
(b) Valuation of Shares or Other Non-Cash Consideration Tendered in
---------------------------------------------------------------
Payment of Purchase Price. For the purposes hereof, the fair market value of
- -------------------------
any share of the Company's Common Stock or other non-cash consideration which
may be delivered to the Company in exercise of this option shall be determined
in good faith by the Board of Directors of the Company.
(c) Delivery of Shares Tendered in Payment of Purchase Price. If the
--------------------------------------------------------
Optionee exercises this option by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock
of the Company to be delivered shall be duly executed in blank by the Optionee
or shall be accompanied by a stock power duly executed in blank suitable for
purposes of transferring such shares to the Company. Fractional shares of
Common Stock of the Company will not be accepted in payment of the purchase
price of shares acquired upon exercise of this option.
(d) Restrictions on Use of Option Stock. Notwithstanding the
-----------------------------------
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within six (6) months before the date of
such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. Delivery of Shares; Compliance With Securities Laws, Etc.
--------------------------------------------------------
(a) General. The Company shall, upon payment of the option price for
-------
the number of shares purchased and paid for, make prompt delivery of such shares
to the Optionee, provided that if any law or regulation requires the Company to
take any action with respect to such shares before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to complete such action.
(b) Compliance With Securities Laws, Etc. The Company will not be
-------------------------------------
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restriction from shares previously delivered under the Plan (i) until all
conditions of the option have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulation have been complied with, (iii) if the outstanding Stock is at the
time listed on any stock exchange, until the shares to be delivered have been
listed or authorized
<PAGE>
to be listed on such exchange upon official notice of issuance, and (iv) until
all other legal matters in connection with the issuance and delivery of such
shares have been approved by the Company's counsel.
6. Nontransferability of Option. This option is personal and no rights
----------------------------
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon this option or such rights, this option and
such rights shall, at the election of the Company, become null and void.
7. Proxy. The Optionee hereby appoints Banyan Worldwide, a Massachusetts
-----
corporation, and/or its designee(s) ("Banyan"), as the Optionee's attorney-in-
fact and proxy, with full power of substitution, for and in the Optionee's name,
to vote, express consent or disapproval, or otherwise act in such manner
(including pursuant to written consent) and upon such matters as Banyan or its
designee(s), proxy or substitute(s) shall, in its or their sole discretion, deem
proper with respect to any and all of the shares issued upon any exercise of
this option or issued in respect to such shares as a stock dividend, stock split
or otherwise (collectively, for purposes of Sections 7, 8 and 9 hereof, the
"Shares"). The proxy granted hereby shall be irrevocable and may be exercised
at any meeting or in respect of any written consent of stockholders. This proxy
is coupled with an interest sufficient in law to support such proxy. This proxy
shall remain in full force and effect and be enforceable against any donee,
transferee or assignee of the stock. In addition to any other applicable
limitations pursuant to the terms of this option, the Optionee agrees not to
sell, assign, transfer, loan, tender, pledge, hypothecate, exchange, encumber or
otherwise dispose of, or issue an option or call with respect to, any of the
Shares, or impair such Shares, in each case unless, and as a condition precedent
thereto, the transferee of such Shares executes and delivers to Banyan an
agreement to be bound by the terms of this Section 7. Any purported transfer in
violation of this Section 7 shall be null and void and shall not be recognized
by the Company or reflected on the stock records of the Company. The Optionee
shall cause the Company to require any certificates representing any and all
Shares issued upon any exercise of this option to bear a legend referencing the
restrictions on transfer set for in this Section 7, which legend shall be
subject to the approval of Banyan. Notwithstanding anything to the contrary in
the foregoing, the provisions of, including, without limitation, the proxy
appointed by, this Section 7 shall terminate upon the closing of the Company's
initial public offering, underwritten by a nationally recognized underwriter,
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act").
8. Repurchase of Shares Upon Termination of Employment. The following
---------------------------------------------------
repurchase provisions shall apply to any and all Shares;
(a) Repurchase Rights. If the Optionee for any reason whatsoever
-----------------
(including without limitation death, disability, or voluntary or involuntary
termination) ceases to be employed by the Company or Banyan Worldwide, or
providing services on behalf of the Company or Banyan Worldwide, prior to the
date specified in Section 8(d) below for the
<PAGE>
expiration of these restrictions, then during the 90-day period following such
termination the Company may elect, by written notice delivered to the Optionee,
to repurchase all or any portion of the Shares, at a price per share equal to
the fair market value of such Shares as of the close of business on the date of
termination of the Optionee's employment. Such fair market value shall be
determined by mutual agreement of the Company and the Optionee. Failing such
agreement between the Optionee and the Company within 30 days of the date of the
Company's notice electing to repurchase such Shares, the fair market value of
such Shares shall be determined by three appraisers, one designated within five
days after the termination of said 30-day period by the Optionee or his or her
legal representatives (which appraiser shall not be the Optionee or his or her
legal representative), one within said period of five days by the Company (which
appraiser shall not be an officer, director or employee of the Company) and the
third within five days after said appointment last occurring by the two
appraisers so chosen. Successor appraisers, if any shall be required, shall be
appointed, within a reasonable time, as nearly as may be in the manner provided
as to the related original appointment. No appointment shall be deemed as having
been accomplished unless such appraiser shall have accepted in writing his
appointment as such within the time limited for his appointment. Notice of each
appointment of an appraiser shall be given promptly to the other parties in
interest. Any expenses relating to the appointment and service of an appraiser
shall be paid by the party appointing such appraiser or, in the case of the
appraiser appointed by the appraisers chosen by the Company and the Optionee,
shall be paid by the Company. Said appraisers shall proceed promptly to
determine the fair market value of said Share or Shares by agreement of any two
of the appraisers, which shall be conclusive upon all parties in interest in
such Shares. Promptly following such determination, the appraisers shall mail or
deliver such notice of such determination to the Optionee and the Company.
(b) Repurchase Procedure. Upon notice from the Company of exercise of
--------------------
its rights under this Section 8 and determination of the purchase price for the
Shares so repurchased, the Optionee shall transfer the Shares or appropriate
part thereof to the Company against payment by the Company of the purchase price
therefor. If upon the expiration of the 90-day period following the Optionee's
termination of employment the Company shall have failed to elect to repurchase
all of the Shares, the repurchase rights with respect to the Shares not so
elected to be repurchased imposed by this Section 8 shall terminate, and the
Optionee or his or her legal representatives may thereafter transfer such
Shares. The Optionee or his or her legal representatives may in no event
transfer any Shares prior thereto, other than to the Company.
(c) Failure of Optionee to Comply. If the Optionee fails to comply
-----------------------------
with any of the provisions of this Section 8, the Company, at its option and in
addition to its other remedies, may suspend the rights of the Optionee to vote
and to receive dividends on the Shares, or may refuse to register on its books
any transfer or change in the ownership of the Shares or in the right to vote
thereon, until the provisions of this Section 8 are complied with to the
satisfaction of the Company.
(d) Expiration. The restriction contained in this Section 8 shall
----------
expire upon the closing of the Company's initial public offering, underwritten
by a nationally recognized underwriter, pursuant to an effective registration
statement under the Securities Act (such expiration date shall be referred to
herein as the "Expiration Date").
<PAGE>
(e) Safekeeping. The Optionee acknowledges that the Company may, in
-----------
its discretion, retain for safekeeping stock certificates representing all
Shares purchased hereunder by the Optionee. The Optionee further acknowledges
that the Company may, to insure that the Optionee complies with the restriction
of this Section 8, continue to retain such stock certificates until the earlier
of the Expiration Date or the date of expiration of these repurchase rights
under Section 8(b) above. At the time of any exercise of this option, in whole
or in part, the Optionee shall execute such further agreement as the Company may
require to implement the foregoing.
9. Right of First Refusal.
----------------------
(a) General. The Optionee shall not sell, assign, pledge, or in any
-------
manner transfer any of the Shares or any right or interest therein, whether
voluntarily or by operation of law, or by gift or otherwise, except by a
transfer which meets the requirements of the provisions of this Section 9.
(b) Restrictions on Transfer. If at any time or from time to time the
------------------------
Optionee intends to sell or transfer any Shares to a third party, the Optionee
shall provide notice thereof to the Company prior to such transfer (which in the
case of a sale shall include a bona fide purchase agreement with a viable
purchaser). The Company shall have an option for 30 days following the date of
receipt of the Optionee's notice to purchase such Shares on the terms upon which
the Shares were to be purchased by or transferred to the third party by the
Optionee. If the Company does not exercise its right of first refusal under
this Section 9(b) with respect to such proposed sale or transfer within such 30-
day period, the Optionee shall be free to sell or transfer such Shares to the
third party identified in the Optionee's notice for a period of 45 days after
the expiration of the 30-day period following the date of receipt of the
Optionee's notice. Such sale or transfer must be on terms no more favorable to
the recipient than those set forth in the Optionee's notice. In no event may
Shares be sold or transferred to any then-current competitor of the Company.
Any transfer or sale of Shares by the Optionee will be conditional upon the
recipient acknowledging in writing the option set forth in this Section 9(b) and
the other restrictions to which the Shares are subject.
(c) Failure of Optionee to Comply. If the Optionee's notice in
-----------------------------
respect of any Shares is not received by the Company as provided in Section 9(b)
above, or if the Optionee fails to comply with the provisions of Section 9(b)
above in respect of any such Shares in any other regard, the Company, at its
option and in addition to its other remedies, may suspend the rights to vote or
to receive dividends on said Shares, or may refuse to register on its books any
transfer or change in ownership of said Shares or in the right to vote thereon,
until the provisions of Section 9(b) are complied with to the satisfaction of
the Company; and if the required Optionee's notice is not received by the
Company after written demand by the Company, the Company may also independently
proceed as though a proper Optionee's notice has been received at the expiration
of ten days after mailing such demand, and, if the Company exercises its rights
under Section 9(b) with respect to said Shares or any of them, the Shares
specified shall be transferred accordingly.
(d) Expiration. The Company's right of first refusal contained in
----------
this Section 9 with respect to any sale or transfer of Shares shall expire upon
the Expiration Date.
<PAGE>
10. No Special Employment Rights. Nothing contained in the Plan or this
----------------------------
option shall be construed or deemed by any person under any circumstances to
bind the Company to continue the employment of the Optionee for the period
within which this option may be exercised.
11. Rights as a Shareholder. The Optionee shall have no rights as a
-----------------------
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
12. Adjustment Provisions.
---------------------
(a) General. In the event of a consolidation, merger or other
-------
reorganization in which all of the outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity (an "Acquisition") or in the event of a liquidation of the
Company, the Board of Directors of the Company or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions as to this option: (i) provide
that this option shall be assumed, or a substantially equivalent option shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof) on such terms as the Board determines to be appropriate, (ii) upon
written notice to the Optionee, provide that if unexercised, this option will
terminate immediately prior to the consummation of such transaction unless
exercised by the Optionee within a specified period following the date of such
notice, (iii) in the event of an Acquisition under the terms of which holders of
the Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the Acquisition (the "Acquisition Price"),
make or provide for a cash payment to the Optionee equal to the difference
between (A) the Acquisition Price times the number of shares of Common Stock
subject to outstanding options (to the extent then exercisable at prices not in
excess of the Acquisition Price) and (B) the aggregate exercise price of all
such outstanding options in exchange for the termination of such options, and
(iv) provide that all or any outstanding options shall become exercisable or
realizable in full prior to the effective date of such Acquisition.
(b) Board Authority to Make Adjustments. Any adjustments under this
-----------------------------------
Section 12 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued pursuant to this
option on account of any such adjustments.
13. Withholding Taxes. The Company's obligation to deliver shares upon
-----------------
the exercise of this option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements.
14. Investment Representations; Legends.
-----------------------------------
<PAGE>
(a) Representations. The Optionee represents, warrants and
---------------
covenants that:
(i) Any shares purchased upon exercise of this option shall be
acquired for the Optionee's account for investment only and not with a view
to, or for sale in connection with, any distribution of the shares in
violation of the Securities Act or any rule or regulation under the
Securities Act.
(ii) The Optionee has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Company such information as
is necessary to permit the Optionee to evaluate the merits and risks of his
or her investment in the Company.
(iii) The Optionee is able to bear the economic risk of holding
shares acquired pursuant to the exercise of this option for an indefinite
period.
(iv) The Optionee understands that (A) the shares acquired pursuant
to the exercise of this option will not be registered under the Securities
Act and are "restricted securities" within the meaning of Rule 144 under
the Securities Act; (B) such shares cannot be sold, transferred or
otherwise disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then available; (C) in
any event, an exemption from registration under Rule 144 or otherwise under
the Securities Act may not be available for at least two years and even
then will not be available unless a public market then exists for the
Common Stock, adequate information concerning the Company is then available
to the public and other terms and conditions of Rule 144 are complied with;
and (D) there is now no registration statement on file with the Securities
and Exchange Commission with respect to any stock of the Company and the
Company has no obligation or current intention to register any shares
acquired pursuant to the exercise of this option under the Securities Act.
(v) The Optionee agrees that, if the Company offers for the first
time any of its Common Stock for sale pursuant to a registration statement
under the Securities Act, the Optionee will not, without the prior written
consent of the Company, publicly offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any shares purchased upon exercise of
this option for a period of 180 days after the effective date of such
registration statement.
By making payment upon exercise of this option, the Optionee shall be deemed to
have reaffirmed, as of the date of such payment, the representations made in
this Section 14.
(b) Legends on Stock Certificates. All stock certificates
-----------------------------
representing shares of Common Stock issued to the Optionee upon exercise of this
option shall have affixed thereto legends substantially in the following forms,
in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 and may not be transferred,
sold or otherwise disposed of in the absence of an effective registration
statement with respect to the shares evidenced by this
<PAGE>
certificate, filed and made effective under the Securities Act of 1933, or
an opinion of counsel satisfactory to the Company to the effect that
registration under such Act is not required."
"The shares of stock represented by this certificate are subject to certain
restrictions on transfer and repurchase rights contained in an Option
Agreement, a copy of which will be furnished upon request by the issuer."
To ensure compliance with the terms of this agreement, the Company may issue to
its transfer agent appropriate stop transfer instructions with respect to the
Shares.
15. Miscellaneous.
-------------
(a) The Board may amend, modify or terminate any outstanding option,
including substituting therefor another option of the same or a different type,
changing the date of exercise or realization, provided that the Optionee's
consent to such action shall be required unless the Board determines that the
action, taking into account any related action, would not materially and
adversely affect the Optionee. The Board may at any time accelerate the time at
which all or any part of an Option may be exercised.
(b) All notices under this option shall be mailed or delivered by hand
to the parties at their respective addresses set forth beneath their names below
or at such other address as may be designated in writing by either of the
parties to one another.
(c) This option shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
Date of Grant:
September 14, 1999
SWITCHBOARD INCORPORATED
By: /s/ John P. Jewett
-----------------------------
Title: Chief Financial Officer
-------------------------
Address: 115 Flanders Road
Westboro, MA 01581
<PAGE>
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms
and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company's 1996 Stock Incentive Plan.
OPTIONEE
/s/ Daniel R. Mason
---------------------------------------
Address: _____________________
_____________________
