Exhibit 10.8
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COMPANY VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
March 25, 2004, among InfoSpace, Inc., a Delaware corporation ("Buyer"), the
undersigned stockholder (the "Stockholder") of Switchboard Incorporated, a
Delaware corporation ("Company") and the Company.
RECITALS
A. The Company, Transitory Subsidiary (as defined below) and Buyer have
entered into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), which provides for the merger (the "Merger") of Big Book
Acquisition Corp., a wholly-owned subsidiary of Buyer ("Transitory Subsidiary"),
with and into the Company. Pursuant to the Merger, all outstanding shares of
common stock of the Company (with limited exceptions) shall be converted into
the right to receive the Merger Consideration (as defined in the Merger
Agreement), as set forth in the Merger Agreement;
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such number
of shares of the outstanding common stock of the Company and shares subject to
outstanding options as is indicated on the signature page of this Agreement; and
C. In consideration of the execution of the Merger Agreement by Buyer,
Stockholder (in his or her capacity as such) agrees to vote the Shares (as
defined below) and other such shares of capital stock of the Company over which
Stockholder has voting power so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Certain Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i) such date
and time as the Merger Agreement shall have been terminated pursuant to
Article VIII thereof, or (ii) the Effective Time.
(b) "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental
authority.
(c) "Shares" shall mean: (i) all securities of the Company (including
all shares of Company Common Stock and all options, warrants and other
rights to acquire shares of Company Common Stock) beneficially owned by
Stockholder as of the date of this Agreement; and (ii) all additional
securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to
acquire shares of Company Common Stock) of which Stockholder acquires
beneficial ownership during the period from the date of this Agreement
through the Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a "Transfer"
of a security if such person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security; or (ii) enters into an agreement
or commitment providing for the sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security
or any interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to Be Bound by This Agreement. Stockholder agrees
that, during the period from the date of this Agreement through the Expiration
Date, Stockholder shall not cause or permit any Transfer of any of the Shares to
be effected unless each Person to which any of such Shares, or any interest in
any of such Shares, is or may be transferred shall have: (a) executed a
counterpart of this Agreement and a proxy in the form attached hereto as Exhibit
A (with such modifications as Buyer may
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reasonably request); and (b) agreed in writing to hold such Shares (or interest
in such Shares) subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that, during the period
from the date of this Agreement through the Expiration Date, Stockholder shall
not deposit (or permit the deposit of) any Shares in a voting trust or grant any
proxy or enter into any voting agreement or similar agreement in contravention
of the obligations of Stockholder under this Agreement with respect to any of
the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called, and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of the Company,
Stockholder (in his or her capacity as such) shall vote, to the extent not voted
by the Person(s) appointed under the Proxy (as defined below), the Shares or
cause the Shares to be voted:
(a) in favor of adoption of the Merger Agreement, approval of the
Merger and any action in furtherance thereof;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement; and
(c) against any of the following actions to the extent such actions
are prohibited by the Merger Agreement: (i) any merger, consolidation,
business combination, sale of assets, reorganization or recapitalization of
the Company with any party, (ii) any sale, lease or transfer of any
significant part of the assets of the Company, (iii) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company,
(iv) any material change in the capitalization of the Company or the
Company's corporate structure, or (v) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay, postpone,
discourage or adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement.
Notwithstanding any provision of this Agreement to the contrary, nothing in
this Agreement shall limit or restrict Stockholder from acting in Stockholder's
capacity as a director or officer of the Company (it being understood that this
Agreement shall apply to Stockholder solely in Stockholder's capacity as a
stockholder of Company) or voting in Stockholder's sole discretion on any matter
other than those matters referred to in subsections (a), (b) and (c) above.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Buyer a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder (i) is
the record and beneficial owner of the shares of Company Common Stock and the
options to purchase shares of Company Common Stock indicated on the signature
page of this Agreement, which are free and clear of any liens, adverse claims,
charges, voting restrictions, rights of first refusal or other encumbrances
(except any such encumbrances arising under securities laws); (ii) as of the
date hereof, does not beneficially own any securities of the Company other than
the shares of Company Common Stock and options to purchase shares of Company
Common Stock indicated on the signature page of this Agreement; and (iii) has
full power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy. Stockholder agrees that, until the Expiration Date,
Stockholder shall not, directly or indirectly, take any action that would make
any representation or warranty contained in this paragraph 5 untrue or incorrect
in any material respect or have the effect of preventing or disabling
Stockholder from performance of its obligations hereunder, except as expressly
permitted by this Agreement.
6. Additional Documents. Stockholder (in his or her capacity as such) and
Buyer hereby covenant and agree to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of Buyer, to carry out the
intent of this Agreement.
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7. No Solicitation.
(a) Stockholder covenants and agrees that, prior to the Expiration Date,
Stockholder shall not, nor shall it authorize or permit, as applicable, any of
its subsidiaries or its or their directors, officers, employees, investment
bankers, attorneys, accountants or other advisors or representatives (such
directors, officers, employees, investment bankers, attorneys, accountants,
other advisors and representatives, collectively, "Representatives") to directly
or indirectly:
(i) solicit, initiate, encourage or facilitate any inquiries or the
making of any proposal or offer that constitutes, or could reasonably be
expected to lead to, any Acquisition Proposal (as defined below), including
without limitation amending or granting any waiver or release under any
standstill or similar agreement with respect to any Company Common Stock;
or
(ii) enter into, continue or otherwise participate in any discussions
or negotiations regarding, furnish to any person any information with
respect to, assist or participate in any effort or attempt by any person
with respect to, or otherwise cooperate in any way with, any Acquisition
Proposal or any inquiry, proposal or offer that could reasonably be
expected to lead to any Acquisition Proposal
Notwithstanding the foregoing and subsection (c) below, to the extent
Stockholder or any Representative of Stockholder is a director of the Company,
Stockholder may take, and Stockholder may permit such Representative to take,
such actions in his or her capacity as director of the Company as are expressly
permitted to be taken by the Board of Directors of the Company with respect to
an Acquisition Proposal pursuant to (A) Section 6.1(a) of the Merger Agreement
in connection with a bona fide, unsolicited Acquisition Proposal made or
received after the date of this Agreement, (B) Section 6.1(b) of the Merger
Agreement and (C) Section 6.1(d) of the Merger Agreement, in each case subject
to the conditions and limitations set forth in the Merger Agreement and in the
case of (A) and (B), as long as such actions do not follow a breach by
Stockholder or such Representative of this Section 7 or a breach by the Company
of Section 6.1 of the Merger Agreement.
(b) Stockholder shall immediately notify the Buyer orally, with written
confirmation to follow promptly (and in any event within 48 hours), of any
Acquisition Proposal or any request for nonpublic information in connection
with, or that would reasonably be expected to lead to, any Acquisition Proposal
and of any material modifications to any Acquisition Proposal, received by
Stockholder, such notice to include all written materials delivered to
Stockholder by the person making such inquiry or Acquisition Proposal and in any
case the identity of such person and a description of the terms of such
Acquisition Proposal.
(c) Stockholder shall, and shall cause its Representatives to, cease
immediately all discussions and negotiations regarding any proposal that
constitutes, or could reasonably be expected to lead to, an Acquisition
Proposal.
(d) "Acquisition Proposal" means (i) any inquiry, proposal or offer for a
merger, consolidation, dissolution, sale of substantial assets, tender offer,
recapitalization, share exchange or other business combination involving the
Company or any material Subsidiary of it, (ii) any proposal for the issuance by
the Company or any Subsidiary of it of over 15% of its equity securities, and
(iii) any proposal or offer to exclusively license or acquire in any manner,
directly or indirectly, over 15% of the equity securities or consolidated total
assets of the Company or any of the equity securities of the Company held by
Stockholder, in each case other than the transactions contemplated by the Merger
Agreement.
8. Legending of Shares. If so requested by Buyer, Stockholder agrees that
the Shares shall bear a legend stating that they are subject to this Agreement
and to an irrevocable proxy.
9. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
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10. Miscellaneous.
(a) 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, then 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.
(b) Binding Effect and Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto acknowledge
that Buyer shall be irreparably harmed and that there shall be no adequate
remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Buyer upon any such violation, Buyer
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Buyer at law
or in equity.
(e) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Buyer:
InfoSpace, Inc.
000 000xx Xxxxxx XX
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
and:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to Stockholder: To the address set forth in the Company's records
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If to the Company:
Switchboard Incorporated
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
(f) Governing Law; Exclusive Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Delaware
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than those of the State of
Delaware. Each of the parties hereto irrevocably consents to the exclusive
jurisdiction and venue of the courts of the State and Delaware and the Federal
courts of the United States located in the State of Delaware, in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in any manner
authorized by the laws of the State of Delaware for such persons and waives and
covenants not to assert or plead any objection which they might otherwise have
to such jurisdiction, venue and such process.
(g) Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Effect of Headings. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
(j) No Obligation to Exercise Options. Notwithstanding any provision of
this Agreement to the contrary, nothing in this Agreement shall obligate
Stockholder to exercise any option, warrant or other right to acquire shares of
Company Common Stock.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
INFOSPACE, INC.
By:____________________ By:____________________
Signature of Authorized Signatory Stockholder
Name: Name:
Title: Title:
SWITCHBOARD INCORPORATED Shares beneficially owned:
By:____________________ shares of Company Common Stock
Signature of Authorized Signatory
Name: shares of Company Common Stock
Title: Issuable upon exercise of
outstanding options
[Signature Page to Company Voting Agreement]
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IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Switchboard
Incorporated, a Delaware corporation (the "Company"), hereby irrevocably (to the
fullest extent permitted by law) appoints the directors on the Board of
Directors of InfoSpace, Inc., a Delaware corporation ("Buyer"), and each of
them, as the sole and exclusive attorneys and proxies of the undersigned, with
full power of substitution and resubstitution, to vote and exercise all voting
and related rights (to the full extent that the undersigned is entitled to do
so) with respect to all of the shares of capital stock of the Company that now
are or hereafter may be beneficially owned by the undersigned, and any and all
other shares or securities of the Company issued or issuable in respect thereof
on or after the date hereof (collectively, the "Shares") in accordance with the
terms of this Proxy until the Expiration Date (as defined below). Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Buyer, the Company and the
undersigned stockholder (the "Voting Agreement"), and is granted in
consideration of Buyer entering into that certain Agreement and Plan of Merger
of even date herewith (the "Merger Agreement"), among Buyer, Big Book
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Buyer
("Transitory Subsidiary"), and the Company. The Merger Agreement provides for
the merger of Transitory Subsidiary with and into the Company in accordance with
its terms (the "Merger"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) such date and time as the Merger Agreement shall
have been validly terminated pursuant to Article VIII thereof or (ii) the
Effective Time (as defined in the Merger Agreement).
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of the Company and in every written consent in lieu of such meeting:
(a) in favor of adoption of the Merger Agreement, approval of the
Merger and any action in furtherance thereof;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement; and
(c) against any of the following actions to the extent prohibited by
the terms of the Merger Agreement: (i) any merger, consolidation, business
combination, sale of assets, reorganization or recapitalization of the
Company with any party, (ii) any sale, lease or transfer of any significant
part of the assets of the Company, (iii) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company,
(iv) any material change in the capitalization of the Company or the
Company's corporate structure, or (v) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay, postpone,
discourage or adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided in clauses (a), (b) and (c) above. The
undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
By:__________________________
Stockholder
Name:
Title:
Dated: March 25, 2004
[Signature Page to Irrevocable Proxy to Company Voting Agreement]
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