Exhibit 99.1
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RESTRUCTURING AGREEMENT
This RESTRUCTURING AGREEMENT (the "Agreement") dated as of August 22,
2001 is entered into among Switchboard Incorporated, a Delaware corporation (the
"Company"), Viacom Inc., a Delaware corporation (as successor to CBS
Corporation, "Viacom"), and ePresence, Inc., a Massachusetts corporation
(formerly known as Banyan Systems Incorporated, "Epresence").
WHEREAS, Viacom owns (i) 7,488,560 shares (the "Viacom Owned Common
Stock") of Common Stock of the Company, $0.01 par value per share (the "Common
Stock"), one share of Series E Special Voting Preferred Stock of the Company,
$0.01 par value per share (the "Viacom Owned Preferred Stock" and, together with
the Viacom Owned Common Stock, the "Viacom Owned Stock"), (iii) Common Stock
Purchase Warrant No. SB-CBS-#1 to purchase up to 1,066,174 shares of Common
Stock at a per share exercise price of $1.00 issued by the Company on June 30,
1999 (the "June 30 Warrant") and (iv) Common Stock Purchase Warrant No. SB-CBS-
#2 to purchase up to 763 shares of Common Stock at a per share exercise price of
$1.00 issued by the Company on July 1, 1999 (the "July 1 Warrant" and, together
with the June 30 Warrant, the "Warrants");
WHEREAS, the Company, Viacom and ePresence are parties to (i) the
Common Stock and Warrant Purchase Agreement dated as of June 1, 1999, as amended
(the "Purchase Agreement"), (ii) the Advertising and Promotion Agreement dated
as of June 30, 1999 (the "Advertising Agreement"), (iii) the Right of First
Refusal Agreement dated as of June 30, ▇▇▇▇ (▇▇▇ "▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), (▇▇) the
Termination of Stockholders' Voting Agreement dated as of January 1, 2001 (the
"Voting Agreement") and (v) the Financial Reporting Agreement dated as of
January 28, 2000 (the "Reporting Agreement");
WHEREAS, the Company and Viacom are parties to (i) the Registration
Rights Agreement dated as of June 30, 1999 (the "Registration Rights Agreement")
and (ii) the License Agreement dated as of June 30, 1999 (the "License
Agreement");
WHEREAS, Viacom wishes to reconvey to the Company, and the Company
wishes to acquire from Viacom, the Viacom Owned Stock, and Viacom and the
Company wish to amend the Warrant to reduce the number of shares of Common Stock
issuable upon exercise of the Warrants to an aggregate of 533,468 shares and
Viacom wishes to waive its demand registration rights under the Registration
Rights Agreement, in each case on the terms and conditions set forth herein;
WHEREAS, the Company has ordered from Viacom, and Viacom will provide
to the Company, advertising and promotion on certain of Viacom's media
properties in the amount of $7,499,376 pursuant to the Advertising Agreement or
as otherwise provided herein and as set forth in the Q3 Media Plan agreed to
between the Company and Viacom and delivered herewith (the "Media Plan"); and
WHEREAS, Viacom, ePresence and the Company, as applicable, wish to
terminate the Purchase Agreement, the Advertising Agreement, the ROFR Agreement,
the Voting Agreement, the License Agreement and, as between the Company and
Viacom, the Reporting Agreement, in each case on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
Section 1. Termination. Effective as of the Closing (as defined in
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Section 11 of this Agreement) and to the extent not already terminated pursuant
to their respective terms, the Purchase Agreement, the Advertising Agreement,
the ROFR Agreement, the Voting Agreement and, as between the Company and Viacom,
the Reporting Agreement, shall be terminated in full and shall be of no further
force and effect. Thereafter, other than as between the Company and ePresence
under the Reporting Agreement, none of the parties thereto shall have any
further rights or obligations under such terminated agreements and each party's
rights and obligations are as set forth in this Agreement.
Section 2. Shares. Effective as of the Closing:
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(a) Viacom shall convey to the Company, and the Company shall
acquire from Viacom, all right, title and interest in and to the Viacom
Owned Stock.
(b) The June 30 Warrant shall be amended and restated in its
entirety in the form attached hereto as Exhibit A:
(i) so as to be exercisable for up to 533,468 shares of Common Stock
at a per share exercise price of $1.00 ;
(ii) by adding a new paragraph (d) to Section 1 thereof to read in
full as follows:
"(d) Notwithstanding anything to the contrary in paragraph (a) above,
upon exercise of this Warrant, in whole or in part, the Registered
Holder may elect to receive a reduced number of Warrant Shares in lieu
of tendering the Purchase Price in cash. In such case, the number of
Warrant Shares to be issued to the Registered Holder shall be computed
using the following formula:
X = Y(A-B)
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A
X = the number of Warrant Shares to be issued to the Registered
Holder ;
Y = the number of Warrant Shares for which the election to
exercise is being made;
A = the Market Price (as defined below) of one share of Common
Stock, $.01 par value per share, of the Company on the trading
day immediately prior to the Exercise Date; and
B = the Purchase Price.
"Market Price" per share of Common Stock of the Company means (i) the
volume weighted average closing sale price per share for the five
consecutive trading days preceding the date of determination as
reported on the NASDAQ National Market System or, if such shares are
primarily traded on any other national securities exchange, as
reported by such exchange, or (ii) if the shares of Common Stock are
not traded on any national securities exchange, the fair market value
of such share of Common Stock as determined in good faith by the Board
of Directors of the Company."; and
(iii) by adding at the end of Exhibit I thereof, immediately prior to
the signature lines, the following:
"Alternatively, the undersigned, pursuant to the cashless exercise
provisions set forth in Section 1(d) of the attached Warrant (No.__),
hereby irrevocably elects to purchase ___________ shares of Common
Stock covered by such Warrant, less ___________ such shares, in lieu
of tendering the Purchase Price referred to therein."
(c) Viacom irrevocably waives any and all rights it has pursuant to
Section 2.1 of the Registration Rights Agreement.
(d) The July 1 Warrant shall be cancelled in its entirety and shall
thereafter be of no further force or effect.
Section 3. Mutual Releases. Effective as of the Closing (except in
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the case of the License Agreement, for which this Section 3 is effective as of
the License End Date (as defined below)), each of Viacom, the Company and
ePresence hereby releases and discharges, absolutely and forever, any and all
claims, causes of action, obligations, covenants, agreements, representations,
warranties, losses, damages, fees, expenses, judgments and liabilities of each
and every kind ("Claims") such party has ever had, now has, or may hereafter
have, directly or indirectly, against the other parties, or any person or entity
directly or indirectly controlling, controlled by, or under common control with
any such party or any or all of such other party's past and present officers,
directors, agents, shareholders, employees, attorneys, representatives,
successors, heirs and assigns (each such person or entity being an "Affiliate"),
arising out of or relating to the Purchase Agreement, the Advertising Agreement
(including, without limitation, any Claims relating to or arising out of the
pricing applied by Viacom to the placement of advertising and promotion), the
ROFR Agreement, the License Agreement (solely as between the Company and
Viacom), the Voting Agreement, the Stockholders' Voting Agreement dated as of
June 30, 1999 by and among Viacom, ePresence and the Company, and, as between
the Company and Viacom, the Reporting Agreement, and the transactions
contemplated by such agreements; provided that such release and discharge shall
not include any Claims arising under
this Agreement or the transactions contemplated hereby. Without limiting the
generality of the foregoing, effective as of the Closing (except in the case of
the License Agreement, for which this Section 3 is effective as of the License
End Date), each of Viacom, the Company and ePresence hereby give such release
and discharge regardless of whether such Claims or the consequences thereof or
the facts on which they are based are known or unknown, anticipated or
unanticipated, absolute or contingent, and whether or not such Claims could have
been asserted at the time of the execution of this Agreement. Nothing in this
Agreement is intended or shall be deemed or construed as an admission of
liability by any party hereto and each party hereto expressly denies any and all
liability relating to any and all Claims to be released and discharged under
this Agreement.
Section 4. Advertising and Promotion. (a) The Company hereby has
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the right to order, and Viacom shall use its commercially reasonable efforts to
arrange for the placement of, advertising and promotion of the Switchboard Site
to be aired during the period from the date hereof until September 30, 2001 (the
"Airing Period"), having an aggregate value of $7,499,376 ("Q3 Advertising"),
pursuant to the Advertising Agreement and in accordance with the Media Plan.
The "annual media plan" referred to in Section 2.1 of the Advertising Agreement
shall not be applicable to the Q3 Advertising. The Company shall not be
permitted to defer any of the Q3 Advertising, including pursuant to Section 2.1
of the Advertising Agreement. Notwithstanding Section 2.1(b) of the Advertising
Agreement, the pricing to be applied to the airing of the Q3 Advertising set
forth in the Media Plan shall be generally consistent with the pricing Viacom
has applied with respect to advertising and promotion aired for the Company up
to and including the date of this Agreement, which pricing methodology Viacom
and the Company acknowledge is fair. Except as specifically modified hereby, the
advertising and promotion that is contemplated to be aired during the Airing
Period shall be provided subject to all the terms and conditions set forth in
the Advertising Agreement. Viacom and the Company hereby agree that the Q3
Advertising is subject to preemption in accordance with Viacom's policies and
practices in the ordinary course of business consistent with past practices.
(b) If the Company fails for any reason to order the full $7,499,376
of Q3 Advertising for airing during the Airing Period, such unordered Q3
Advertising shall be permanently forfeited; provided, however, that in the
event any portion of the Q3 Advertising ordered (with commercially
reasonable lead time) by the Company for airing during the Airing Period
remains unaired as a result of Viacom's failure to air such Q3 Advertising,
the Company shall be permitted to order, and Viacom shall be required to
use its best efforts to arrange (provided the Company provides Viacom
commercially reasonable lead time) for the placement of, such remaining
unaired Q3 Advertising (such remaining unaired Q3 Advertising, the "Post-
Closing Advertising") during the six month period following the Closing,
pursuant to the terms set forth in Section 4(c) below. Upon the earlier of
the date on which such Post-Closing Advertising is aired in full and the
end of such six month period (the "Final Time"), Viacom's obligations under
this Section 4 hereby are terminated in full and neither Viacom nor the
Company shall have any further rights or obligations under this Section 4.
(c) Viacom shall arrange for the placement of the Post-Closing
Advertising subject to the following terms and conditions:
(i) Viacom and the Company hereby agree that the Post-Closing
Advertising shall conform to the restrictions or requirements
set forth in the CBS License Guidelines and Restrictions (as
such term is defined in the License Agreement), it being
understood that even if the License Agreement is terminated
prior to the Final Time, such restrictions or requirements are
still in force and effect as to the Post-Closing Advertising.
(ii) Viacom and the Company hereby agree that (A) Viacom makes no
audience guarantees, (B) there are no make-goods, and (C) no
party hereto has any audit rights except solely to confirm
whether the Post-Closing Advertising, or any portion thereof,
has been aired.
(iii) Viacom and the Company hereby agree that the Post-Closing
Advertising is subject to preemption in accordance with
Viacom's policies and practices in the ordinary course of
business consistent with past practices.
(iv) Viacom and the Company agree that Viacom will not charge the
Company for the Post-Closing Advertising.
(d) Effective as of the Final Time, each of Viacom and the Company
hereby releases and discharges, absolutely and forever, any and all Claims
such party has ever had, now has, or may hereafter have, directly or
indirectly, against such other party, or any Affiliate thereof, arising out
of or relating to the pricing applied by Viacom to its placement of the
Post-Closing Advertising, provided that such pricing is generally
consistent with the pricing Viacom has applied with respect to advertising
and promotion aired for the Company up to and including the date of this
Agreement, which pricing methodology each of Viacom and the Company
acknowledges is fair, and provided further that neither Viacom nor the
Company shall be entitled to recover any damages for any Claim arising
under or relating to the Post-Closing Advertising other than monetary
damages, which monetary damages (including, without limitation, reasonable
expenses of investigation and attorneys' fees and expenses in connection
with any Claim) shall not exceed the sum of (x) the Post-Closing
Advertising, if any, that remains unaired as of the Final Time and (y) all
Claims by the Company that the pricing applied by Viacom to its placement
of the Post-Closing Advertising was not generally consistent with the
pricing Viacom has applied with respect to advertising and promotion aired
for the Company up to and including the date of this Agreement. Without
limiting the foregoing, effective as of the Final Time, each of Viacom and
the Company shall give such release and discharge regardless of whether
such Claims or the consequences thereof or the facts on which they are
based are known or unknown, anticipated or unanticipated, absolute or
contingent, and whether or not such Claims could have been asserted on or
before the Final Time.
(e) In the event this Agreement is terminated pursuant to Section
12 of this Agreement, neither Viacom nor the Company shall be entitled to
recover any damages for any
Claim arising under this Section 4 and/or the Advertising Agreement (with
respect to the Q3 Advertising) other than monetary damages, which monetary
damages (including, without limitation, reasonable expenses of investigation and
attorneys' fees and expenses in connection with any Claim) shall not exceed the
sum of (A) the Q3 Advertising, if any, that remains unaired as of such
termination date and (B) all Claims by the Company that the pricing applied by
Viacom to its placement of any Q3 Advertising that has aired up to such
termination date was not generally consistent with the pricing Viacom has
applied with respect to advertising and promotion aired for the Company up to
and including the date of this Agreement.
Section 5. License Agreement. (a) Immediately following the
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Closing, the Company shall use its commercially reasonable efforts to cease all
uses of the CBS Marks (as defined in the License Agreement) in connection with
the name and operation of the Switchboard Site (as defined in the License
Agreement) and any other uses permitted under the License Agreement. In any
event, no later than three months after the Closing, the Company shall cease all
uses of the CBS Marks in connection with the name and operation of the
Switchboard Site and any other uses permitted under the License Agreement. In
connection with the foregoing, the Company shall remove, erase or destroy the
CBS Marks from the Switchboard Site or any other use by the Company within a
commercially reasonable time following the Closing, but in no event shall any
such material remain in use by the Company more than three months after Closing,
and, at Viacom's written request, the Company shall furnish Viacom with
commercially acceptable evidence of such removal, erasure or destruction
reasonably satisfactory to Viacom.
(b) The Company shall have no ownership or other rights in the CBS
Marks, except in accordance with and to the extent of the License
Agreement. The Company acknowledges that the CBS Marks are
trademarks owned or controlled by Viacom or one of its
subsidiaries and that all uses by the Company of such CBS Marks
shall inure to Viacom or such subsidiary's benefit. Subject to
Section 5(c) below, in the event that the Company shall create or
shall have created any proprietary right in any CBS Marks as a
result of the exercise by the Company of any right under the
License Agreement or hereunder, such proprietary right shall
immediately vest in Viacom (or its designated subsidiary) and the
Company shall cease using such proprietary right in accordance
with paragraph (a) above.
(c) Viacom or one of its subsidiaries and the Company shall continue
to be joint owners of the Joint URL(s) (as defined in the License
Agreement). After the Closing, neither Viacom (or such subsidiary) nor the
Company shall have the right to use or promote the Joint URL(s) or any
other URL containing the name or trademark of the other party, except that:
(i) for a period of three months following the Closing (the
"Forwarding Period"), Internet users who input the
Identifying URL (as defined in the License Agreement) shall
be automatically forwarded (by the Company) to the
Switchboard Site; and
(ii) for a period of three months following the Forwarding
Period, Internet users who input the Identifying URL will
be automatically forwarded (by the Company) to a screen
substantially in the form attached hereto as Exhibit B or
as subsequently mutually agreed between the Company and
Viacom.
Thereafter, the Company and Viacom shall cease all use of the Joint URL(s)
and remove, erase or destroy all uses thereof in accordance with the
provisions of paragraph (a) above applicable to the CBS Marks. On or prior
to the License End Date (as defined below), as mutually agreed upon by the
Company and Viacom, the Company shall transfer its registration of the
Joint URL(s) to Viacom. The Company agrees to, no later than the second
monthly anniversary of the Closing, submit the transfer registration
application to Viacom for the purpose of allowing Viacom to submit such
application to the appropriate registrar, it being understood that Viacom
shall not submit such application prior to the License End Date. Prior to
the expiration of the registration of the Joint URL(s), Viacom shall file
an application to renew the Joint URL(s) solely in its name but hereby
agrees not to use the Joint URL(s) in any manner whatsoever. For the
avoidance of doubt, and not for the purpose of limitation, Viacom shall not
post any content on the Joint URL(s). Upon its renewal of the Joint URL(s)
pursuant to this Section 5(c), Viacom shall, at its expense and for a
period of two (2) years from the date of this Agreement, take such actions
as are (A) reasonably necessary or desirable to maintain the registration
of the Joint URL(s) and (B) in its sole discretion, necessary or desirable
to protect and enforce its rights in the Joint URL(s). Viacom shall
promptly notify the Company if at any time between the second anniversary
of the Closing and the fourth anniversary of the Closing, Viacom determines
that it will not maintain its registration of the Joint URL(s).
(d) On the earlier of (x) the date on which the Company notifies
Viacom in writing that the Company has ceased all use of the CBS Marks and
the Joint URLs and (y) the three month anniversary of the Closing (such
earlier date, the "License End Date"): (1) the License Agreement hereby is
terminated in full and shall be of no further force and effect; and (2)
thereafter, neither the Company nor Viacom shall have any further rights or
obligations under the License Agreement.
Section 6. Stockholder Meeting; Proxy Material. The Company shall
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cause a meeting of its stockholders (the "Company Stockholder Meeting") to be
duly called and held as soon as reasonably practicable for the purpose of
obtaining the stockholder approval required to satisfy the closing condition set
forth in Section 11(b)(i) of this Agreement. Subject to the fiduciary
obligations of the Company's directors under applicable Delaware law, the
Company Proxy Statement (as defined in Section 10(d)) shall indicate the
approval by the Board of Directors of the transactions contemplated by this
Agreement and the recommendation of the Board of Directors of the Company to the
Company's stockholders that they vote in favor of the approval of the
transactions contemplated by this Agreement. In connection with such meeting,
the Company will (i) promptly prepare and file with the SEC (as defined in
Section 10(d)), use its best efforts to have cleared by the SEC and thereafter
mail to its stockholders as promptly as practicable the Company Proxy Statement
and all other proxy materials for such meeting, (ii) solicit from its
stockholders proxies in favor of the approval of the transactions contemplated
hereby and use its best efforts to obtain the necessary approvals by its
stockholders of the transactions contemplated
hereby and (iii) otherwise comply with all legal requirements applicable to such
meeting. The Company, Viacom and ePresence shall cooperate with each other in
the preparation of the Company Proxy Statement, including, without limitation,
as follows: (1) Viacom and ePresence shall furnish to the Company information
reasonably required in connection with the Company Proxy Statement; and (2) the
Company shall permit Viacom and ePresence to review all drafts of the Company
Proxy Statement and any related materials prior to distribution to third parties
or filing thereof, and the Company shall provide copies thereof to Viacom and
ePresence reasonably prior to any such distribution or filing.
Section 7. Further Assurances. Subject to the terms and conditions
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of this Agreement, the Company, Viacom and ePresence will use their respective
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations or otherwise to consummate the transactions
contemplated by this Agreement, and execute and deliver such documents and other
papers as may be required to carry out the provisions of this Agreement and
consummate and make effective the transactions contemplated hereby.
Section 8. Public Announcements. None of the Company, Viacom or
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ePresence will issue any press release or make any public statement with respect
to this Agreement or the transactions contemplated hereby without the prior
consent of the other parties hereto, except to the extent such party reasonably
believes such press release or public statement is required by applicable law or
stock market regulations; provided, however that the Company, Viacom and
ePresence may make reasonable public statements consistent with prior public
statements otherwise permitted under this Section 8. Subject to receiving each
other party's consent consistent with this Section 8, the Company shall issue a
press release relating to this Agreement no later than two (2) business days
after the date hereof.
Section 9. Confidentiality. (a) Each of Viacom and the Company
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acknowledges and agrees that it has disclosed, and may in the future disclose,
certain confidential information, including, but not limited to, information
concerning any other party's online services and web sites, technology,
software, tools or business, or plans for the future in connection with any of
the foregoing, information concerning customers, suppliers, personnel and other
business relationships, sales and marketing plans, financial information and
other confidential information, all of which shall be deemed "Confidential
Information" for the purposes of this Section 9 if, with respect to such
information disclosed in tangible form, it is or was marked "Confidential" or
its equivalent, and if disclosed orally or visually, it is or was identified as
confidential at the time of disclosure.
(b) For a period of three years from the date of receipt of Confidential
Information under this Agreement or under the agreements referred to in
this Agreement, or in perpetuity with respect to source code or related
documentation, the receiving party agrees to protect the confidentiality of
the disclosing party's Confidential Information with at least the same
degree of care that it utilizes with respect to its own similar proprietary
information, but in no event less than a reasonable standard of care,
including without limitation agreeing:
(i) Not to disclose or otherwise permit any other person or entity
access to, in any manner, the Confidential Information, or any
part thereof in any form whatsoever, except that such
disclosure or access shall be permitted to (A) an employee or
consultant of the receiving party requiring access to the
Confidential Information in the course of his or her employment
or consulting services in connection with this Agreement or the
agreements referred to in this Agreement and who has agreed in
writing to maintain the confidentiality of the Confidential
Information in the receiving party's possession; or (B) a
director, legal advisor or financial advisor of the recipient
party hereunder, provided that such parties are bound to
maintain the confidentiality of such information and provided
further that they are permitted to use such Confidential
Information only for the purposes of carrying out their
fiduciary or other advisory responsibilities on behalf of the
party hereto from which it received such Confidential
Information;
(ii) Not to use the Confidential Information for any purpose other
than to carry out the purposes of this Agreement; and
(iii) To be responsible for any breach of the confidentiality
obligations set forth in this Section 9 by any third party to
whom such receiving party has disclosed Confidential
Information.
(c) Nothing in this Section 9 shall restrict the receiving party
with respect to information or data, whether or not identical or similar to
that contained in the Confidential Information, if such information or
data: (i) was rightfully possessed by the receiving party before it was
received from the disclosing party; (ii) is independently developed by the
receiving party without reference to the disclosing party's information or
data; (iii) is subsequently furnished to the receiving party by a third
party not under any obligation of confidentiality with respect to such
information or data, and without restrictions on use or disclosure; or (iv)
is or becomes public or available to the general public otherwise than
through any act or default of the receiving party.
(d) Nothing in this Section 9 shall prevent any party hereto from
disclosing any Confidential Information required, in such party's
reasonable opinion, to be disclosed by law, stock market regulation or
other compulsory legal process, subject to prior written notice to the
applicable disclosing party.
Section 10. Representations and Warranties. Each party (except where
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only a specific party or parties are identified) hereto represents and warrants
to the other parties hereto as follows:
(a) Organization and Qualification. Such party is a corporation
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duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has all corporate powers and all
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now
conducted, except for those licenses, authorizations, permits, consents and
approvals the absence of which would not have, individually or in the
aggregate, a material adverse effect on such party or such party's ability
to perform its obligations under this Agreement or the other instruments
and agreements contemplated hereby.
(b) Authorization. (i) The execution, delivery and performance by
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such party of this Agreement, and the consummation by such party of the
transactions contemplated hereby, are within such party's corporate powers
and have been duly authorized by all necessary corporate action on the part
of such party, except, with respect to the Company, for the authorization
of the Company's stockholders set forth as a closing condition in Section
11(b)(i). This Agreement has been duly executed and delivered by such
party and this Agreement constitutes a valid and binding agreement of such
party, enforceable against such party in accordance with its terms.
(ii) The Company represents and warrants that (A) a special
committee of its Board of Directors comprised of non-Viacom
appointed directors has determined that the transactions
contemplated hereby are fair to and in the best interests of the
stockholders of the Company, (B) the special committee has
recommended that the Board of Directors approve the transactions
contemplated hereby, (C) the Board of Directors has determined,
in reliance upon, among other things, such recommendation from
the special committee that the transactions contemplated hereby
are fair to and in the best interests of the stockholders of the
Company, and (D) on such basis, among other things, the Board of
Directors has resolved to recommend that the stockholders of the
Company authorize the transactions contemplated hereby.
(c) No Conflicts. (i) The execution, delivery and performance by such
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party of this Agreement, and the consummation by such party of the
transactions contemplated hereby, require no action by or in respect of, or
filing with, any governmental body, agency, official or authority,
domestic, foreign or supranational, other than: (A) solely with respect to
the Company, compliance with any applicable requirements of the NASDAQ
National Market System, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and any other applicable
securities laws, whether federal, state or foreign; and (B) any actions or
filings the absence of which would not have, individually or in the
aggregate, a material adverse effect on such party or such party's ability
to perform its obligations under this Agreement or the other instruments
and agreements contemplated hereby.
(ii) The execution, delivery and performance by such party of
this Agreement, and the consummation of the transactions
contemplated hereby, do not (A) contravene, conflict with, or
result in any violation or breach of any provision of the
certificate of incorporation or bylaws of such party, (B)
assuming compliance with the matters referred to in Section
10(c)(i) and satisfaction of the closing condition set forth in
Section 11(b)(i), contravene, conflict with or result in a
violation or breach
of any provision of any applicable law, statute, ordinance,
rule, regulation, judgment, injunction, order, or decree
applicable to such party or any of its subsidiaries, (C) require
any consent or other action by any person or entity under,
constitute a default, or an event that, with or without notice
or lapse of time or both, would constitute a default, under, or
cause or permit the termination, cancellation, acceleration or
other change of any right or obligation or the loss of any
benefit to which such party or any of its subsidiaries is
entitled under, any provision of any agreement or other
instrument binding upon such party or any of its subsidiaries or
any of their assets or any license, franchise, permit,
certificate, approval or other similar authorization affecting,
or relating in any way to, the assets or business of such party
and its subsidiaries or (D) result in the creation or imposition
of any lien or encumbrance on any asset of such party or any of
its subsidiaries, except for such contraventions, conflicts,
violations and breaches referred to in clause (B) and for such
failures to obtain any such consent or other action and for such
defaults, terminations, cancellations, accelerations, changes,
losses, liens and encumbrances referred to in clauses (C) or (D)
that would not have, individually or in the aggregate, a
material adverse effect on such party or such party's ability to
perform its obligations under this Agreement or the other
instruments and agreements contemplated hereby.
(d) Disclosure Document. (i) The Company represents and warrants
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that the proxy of the Company to be filed with the Securities and Exchange
Commission (the "SEC") in connection with the transactions contemplated
hereby (the "COMPANY PROXY STATEMENT") and any amendments or supplements
thereto will, when filed, comply as to form in all material respects with
the applicable requirements of the Securities Exchange Act of 1934, as
amended. The Company represents and warrants that (other than with respect
to written information supplied by Viacom and ePresence for inclusion in
the Company Proxy Statement, as to which the Company makes no
representation or warranty), at the time the Company Proxy Statement or any
amendment or supplement thereto is first mailed to stockholders of the
Company and at the time such stockholders vote on the transactions
contemplated hereby, the Company Proxy Statement, as supplemented or
amended, if applicable, will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading.
(ii) Each of Viacom and ePresence represents and warrants that the
information with respect to Viacom and ePresence, respectively,
that Viacom and ePresence, respectively, furnishes to the
Company in writing specifically for use in the Company Proxy
Statement will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements made therein, in the light of the
circumstances under which there were made, not misleading at the
time the Company Proxy Statement or any amendment or supplement
thereto is
first mailed to stockholders of the Company and at the time such
stockholders vote on the transactions contemplated hereby.
(e) Confidentiality. Each of the Company and Viacom represents and
---------------
warrants that it has complied in full with Section 12 of the
Advertising Agreement.
(f) Ownership of Equity. Viacom represents and warrants that it is
-------------------
the record, legal and beneficial owner of the Viacom Owned Stock
and the Warrants, free and clear of any and all conditions,
restrictions, liens, charges, encumbrances, options and adverse
claims or rights whatsoever (collectively, "LIENS"), except for
such Liens arising under federal or state securities laws.
Viacom further represents and warrants that, as of the date of
this Agreement and as of the record date for the Company
Stockholder Meeting, the Viacom Owned Stock constitutes all of
the outstanding voting securities of the Company beneficially
owned by Viacom.
(g) Successor in Interest. Viacom represents and warrants that it is
---------------------
the successor to the rights and obligations of CBS Corporation
under the Purchase Agreement, the Advertising Agreement, the
ROFR Agreement, the Reporting Agreement and the License
Agreement.
(h) No Known Infringement. Viacom represents and warrants that, to
---------------------
its knowledge, the Company's use of the CBS Marks in accordance
with the License Agreement or this Agreement will not infringe
upon the rights of any third party.
Section 10A. No Transfer. Viacom shall not prior to the Closing sell
-----------
or otherwise transfer or encumber or otherwise restrict any or all of the Viacom
Owned Stock, any or all of the Warrants or any or all right, title or interest
in the Viacom Owned Stock or the Warrants.
Section 11. Closing; Closing Conditions. (a) Closing. (i) Upon the
--------------------------- -------
satisfaction or waiver (in the case of the waiver of the condition set forth in
Section 11(b)(i) below, the waiver of each party hereto) of all the conditions
to closing set forth in paragraph (b) below, the transactions contemplated by
this Agreement shall be consummated at a closing (the "CLOSING") to be held at
the offices of ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00
a.m. on (1) the later of (x) the second Business Day following the satisfaction
of all the conditions to closing set forth in paragraph (b) below and (y) the
earlier of September 30, 2001 and the date on which the Q3 Advertising shall
have been aired in full, or (2) at such other time, place or date as shall be
agreed upon by the parties to this Agreement.
(ii) At the Closing, Viacom shall deliver, or cause to be delivered:
(1) to the Company, (A) all certificates evidencing the Viacom
Owned Stock, along with such other stock transfer documentation
reasonably acceptable to the Company; (B) the original June 30
Warrant and the original July 1
Warrant, each marked "CANCELLED"; (C) a receipt for the amended
and restated June 30 Warrant; and (2) to the Company and
ePresence, as applicable, the other documents required to be
delivered by Viacom pursuant to paragraph (b) below.
(iii) At the Closing, the Company shall deliver, or cause to be
delivered: (1) to Viacom, (A) a receipt for the stock
certificates referred to in Section 11(ii)(1)(A) above; (B) an
executed amended and restated June 30 Warrant in the form
attached hereto as Exhibit A; and (2) to Viacom and ePresence,
as applicable, the other documents required to be delivered by
the Company pursuant to paragraph (b) below.
(iv) At the Closing, ePresence shall deliver, or cause to be
delivered, to the Company and to Viacom, as applicable, the
documents required to be delivered by ePresence pursuant to
paragraph (b) below.
(b) Closing Conditions. (i) The obligations of the Company, Viacom
------------------
and ePresence to consummate the transactions contemplated hereby are
subject to the satisfaction or waiver of the condition that the
transactions contemplated hereby shall have been authorized by at least 66
2/3 % of the outstanding Common Stock of the Company which is not
beneficially owned by Viacom in accordance with the General Corporation Law
of the State of Delaware;
(ii) The obligations of each of the Company, Viacom and ePresence to
consummate the transactions contemplated hereby are subject to
the satisfaction or waiver of the condition that (1) each other
party hereto shall have performed in all material respects all
of its obligations hereunder required to be performed by it at
or prior to the Closing, (2) each of the representations and
warranties of each other party contained in this Agreement (A)
that are qualified by materiality or material adverse effect
shall be true and correct in all respects as of the date of
execution of this Agreement and at and as of the Closing as if
made at and as of such time (except that representations and
warranties that by their terms speak as of some other date need
be true and correct only as of such specified date), and (B)
that are not qualified by materiality or material adverse
effect shall be true in all material respects as of the date of
execution of this Agreement and at and as of the Closing as if
made at and as of such time (except that representations and
warranties that by their terms speak as of some other date need
be true only as of such specified date) and (3) such party
shall have received a certificate signed by a senior executive
officer of each such other party to the foregoing effect; and
(iii) The obligations of the Company to consummate the transactions
contemplated hereby are subject to the satisfaction or waiver
of the condition that the Company shall have received the
resignation of each of the directors appointed to its Board by
Viacom.
Section 12. Termination. (a) This Agreement may be terminated at any
-----------
time prior to Closing, upon, except pursuant to clause (i) below, written notice
by the terminating party to the other parties, as follows:
(i) by mutual written agreement of the Company and Viacom, provided
that the Company and Viacom provide reasonable notice to
ePresence of such agreement;
(ii) by either the Company or Viacom, if the Closing has not taken
place on or before January 31, 2002 (the "End Date");
(iii) by Viacom, if a breach of or failure to perform any
representation, warranty, covenant or agreement on the part of
the Company or ePresence set forth in this Agreement shall have
occurred that would cause the condition set forth in Section
11(b)(ii) not to be satisfied by the Company or ePresence, and
such condition is incapable of being satisfied by the Company
or ePresence by the End Date; or
(iv) by the Company, if a breach of or failure to perform any
representation, warranty, covenant or agreement on the part of
Viacom set forth in this Agreement shall have occurred that
would cause the condition set forth in Section 11(b)(ii) not to
be satisfied by Viacom, and such condition is incapable of
being satisfied by Viacom by the End Date.
Notwithstanding anything to the contrary in this Section 12(a), the right
to terminate this Agreement under this Section 12(a) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause of such termination event.
The party desiring to terminate this Agreement pursuant to this
Section 12(a) (other than pursuant to Section 12(a)(i)) shall give notice
of such termination to each other party.
(b) If this Agreement is terminated pursuant to Section 12(a), this
Agreement shall become void and of no effect without liability of any party
(or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other parties hereto, provided that,
if such termination shall result from the willful (i) failure of any party
to fulfill a condition to the performance of the obligations of the other
parties or (ii) failure of any party to perform a covenant hereof, such
party shall be fully liable for any and all liabilities and damages,
subject to Section 13(n) of this Agreement, incurred or suffered by the
other parties as a result of such failure. The provisions of this Section
12(b) and Sections 4(e) and 13 shall survive any termination hereof
pursuant to Section 12(a).
Section 13. Miscellaneous. (a) Notices. All notices, requests and
------------- -------
other communications to any party hereunder shall be in writing (including
facsimile transmission) and shall be given,
if to the Company, to:
Switchboard Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
Bay Colony
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Viacom, to:
Viacom Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to ePresence, to:
ePresence, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m., and such day is a
business day, in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
(b) Survival of Representations and Warranties. The representations
------------------------------------------
and warranties and agreements contained herein and in any certificate or
other writing delivered pursuant hereto shall survive the Closing but shall
speak only as of the date(s) made; provided that the representations and
warranties contained in Section 10(h) shall survive until the second
anniversary of the Closing but shall speak only as of the date(s) made.
(c) Amendments; Waivers. (i) Any provision of this Agreement may be
-------------------
amended or waived prior to the Closing if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each
party to this Agreement or, in the case of a waiver, by each party against
whom the waiver is to be effective.
(ii) Except as expressly amended or waived hereby, the agreements
referred to in this Agreement shall (to the extent not already
terminated pursuant to their respective terms) remain in full
force and effect in accordance with their respective terms
until terminated pursuant to this Agreement. All references to
such agreements in this Agreement and the other agreements
referred to herein shall be deemed to be references to such
agreements as amended or waived hereby.
(iii) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies
provided by law.
(d) Expenses. Except as otherwise provided in this Section, all
--------
costs and expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
(e) Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
(f) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
(g) Jurisdiction. Any suit, action or proceeding seeking to enforce
------------
any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be
brought in the federal court or state court located in the county of New
York in the State of New York, and each of the parties hereby consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it may
now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 13(a) shall be deemed
effective service of process on such party.
(h) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
--------------------
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(i) Counterparts; Effectiveness. This Agreement may be signed in any
---------------------------
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the other parties
hereto. This Agreement may be executed by facsimile signatures. Except as
expressly provided in Sections 3 and 5(d), no provision of this Agreement
is intended to confer any rights, benefits, remedies, obligations or
liabilities hereunder upon any Person other than the parties hereto and
their respective successors and assigns.
(j) Entire Agreement. This Agreement and the agreements referred to
----------------
herein constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to
the subject matter of this Agreement.
(k) Captions. The captions herein are included for convenience of
--------
reference only and shall be ignored in the construction or interpretation
hereof.
(l) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner so that the
transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
(m) No Voting Agreement. The parties hereto acknowledge and agree
-------------------
that this Agreement does not constitute an agreement, arrangement or
understanding between ePresence and any other party hereto for the purpose
of voting the shares of Common Stock held by ePresence in connection with
the stockholder approval required to be obtained in order to satisfy the
closing condition set forth in Section 11(b)(i).
(n) Limitation on Damages. Notwithstanding any other provision in
---------------------
this Agreement, no party to this Agreement or any of such party's
Affiliates shall be liable to any other party or such other party's
Affiliates for special, consequential, indirect or punitive damages.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
SWITCHBOARD INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
VIACOM INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Executive Vice President and
Chief Financial Officer
EPRESENCE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Sr. Vice President and
Chief Financial Officer
