EXHIBIT 2.4
EXECUTION VERSION
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT"), is entered into as of July
14, 2003, by and among Yahoo! Inc., a Delaware corporation ("PARENT"), July 2003
Merger Corp., a Delaware corporation and wholly owned subsidiary of Parent
("MERGER SUB"), and the undersigned stockholder ("STOCKHOLDER") of Overture
Services, Inc., a Delaware corporation (the "COMPANY").
WITNESSETH:
WHEREAS, concurrently with the execution of this Agreement, Parent,
Merger Sub and the Company are entering into an Agreement and Plan of Merger of
even date herewith (the "MERGER AGREEMENT"), pursuant to which the parties
thereto have agreed, upon the terms and subject to the conditions set forth
therein, to merge Merger Sub with and into the Company or, alternatively, merge
the Company with and into Merger Sub (the "MERGER"); and
WHEREAS, as of the date hereof, Stockholder is the Beneficial Owner
(as defined hereinafter) of Existing Shares (as defined hereinafter) of the
common stock, $0.0001 par value, of the Company (the "COMPANY COMMON Stock");
and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has requested that Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Certain Definitions. In addition to the terms defined
elsewhere herein, capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement. For purposes of
this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities means having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), except for those shares of Company Common Stock
which Stockholder has the right to acquire within 60 days; provided, however,
that for the purposes of this Agreement, Stockholder shall be deemed to
Beneficially Own only those securities held of record by such Stockholder or
over which Stockholder has sole voting and dispositive power; provided, further,
that in no event shall Stockholder be deemed to Beneficially Own any securities
owned of record by Idealab, Idealab Holdings, L.L.C. or Clearstone Venture
Partners.
(b) "EXISTING SHARES" means shares of the Company Common Stock
Beneficially Owned by Stockholder as of the date hereof.
(c) "SECURITIES" means the Existing Shares together with any
shares of the Company Common Stock or other securities of the Company acquired
by Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution, split-up, recapitalization,
combination, exchange of shares or the like, gift, bequest, inheritance or as a
successor in interest in any capacity or otherwise.
Section 2. Representations And Warranties of Stockholder.
Stockholder represents and warrants to Parent and Merger Sub as follows:
(a) Ownership of Shares. As of the date hereof and at all
times prior to the termination of this Agreement, Stockholder is (and will be,
unless any Existing Shares are transferred pursuant to Section 5(a) hereof or
any Stockholder Options are exercised) the Beneficial Owner of the Existing
Shares and Company Options to purchase shares of Company Common Stock (the
"STOCKHOLDER OPTIONS") set forth on the signature page of this Agreement. As of
the date hereof, Stockholder does not beneficially own any securities of the
Company other than the shares of Company Common Stock (and the associated
Company Rights) and Stockholder Options set forth on the signature page of this
Agreement.
(b) Authority. Stockholder has the requisite power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Existing Shares with no limitations, qualifications or restrictions on
such power, subject to applicable securities laws and the terms of this
Agreement.
(c) Power; Binding Agreement. Stockholder has the legal
capacity and authority to enter into and perform all of Stockholder's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(d) No Conflicts. Except as contemplated by the Merger
Agreement, (i) no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution of this Agreement by
Stockholder and the consummation by Stockholder of the transactions contemplated
hereby, and (ii) none of the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions contemplated
hereby or compliance by Stockholder with any of the provisions hereof shall (A)
conflict with or result in any breach of any organizational documents applicable
to Stockholder, if applicable, or (B) violate any order, writ, injunction,
decree, judgment, statute, rule or
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regulation applicable to Stockholder or any of Stockholder's properties or
assets, except in the case of clause (B) where such violations, breaches or
defaults would not, individually or in the aggregate, materially impair the
ability of Stockholder to perform this Agreement.
(e) No Encumbrance. Except as permitted by this Agreement, the
Existing Shares are now and, at all times during the term hereof, and the
Securities will be, held by Stockholder, or by a nominee or custodian for the
benefit of Stockholder, free and clear of all Liens except for any such Liens
arising hereunder or under applicable federal and state securities laws, other
than Liens that are not material to performance of this Agreement by
Stockholder.
(f) Community Property. All representations and warranties by
Stockholder made herein are qualified in their entirety by the effects of
applicable community property laws and the laws affecting the rights of marital
partners generally.
Section 3. Representations And Warranties of Parent And Merger Sub.
Each of Parent and Merger Sub hereby, jointly and severally, represents and
warrants to Stockholder as follows:
(a) Power; Binding Agreement. Parent and Merger Sub each has
the corporate power and authority to enter into and perform all of its
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by each of Parent and Merger Sub and constitutes a valid
and binding agreement of Parent and Merger Sub, enforceable against each of
Parent and Merger Sub in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(b) No Conflicts. Except as contemplated by the Merger
Agreement, (i) no filing with, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution of this Agreement by
Parent and Merger Sub and the consummation by Parent and Merger Sub of the
transactions contemplated hereby, and (ii) and none of the execution and
delivery of this Agreement by each of Parent and Merger Sub, the consummation by
each of Parent and Merger Sub of the transactions contemplated hereby or
compliance by each of Parent and Merger Sub with any of the provisions hereof
shall (A) conflict with or result in any breach of any provision of the
respective certificates of incorporation or by-laws of Parent and Merger Sub, or
(B) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Parent, any of its subsidiaries or any of their properties or
assets, except in the case of clause (B) where the failure to obtain such
permits, authorizations, consents or approvals or to make such filings, or where
such violations, breaches or defaults would not, individually or in the
aggregate, materially impair the ability of Parent or Merger Sub to consummate
the transactions contemplated by the Merger Agreement or perform this Agreement.
Section 4. Disclosure. Stockholder hereby agrees to permit Parent to
publish and disclose in the Registration Statement and the Prospectus/Proxy
Statement (including all
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documents and schedules filed with the Securities and Exchange Commission), and
in any press release or other disclosure document in which Parent reasonably
determines in its good faith judgment that such disclosure is required by law,
including the rules and regulations of the Securities and Exchange Commission,
or appropriate, in connection with the Merger and any transactions related
thereto, Stockholder's identity and ownership of the Company Common Stock and
the nature of Stockholder's commitments, arrangements and understandings under
this Agreement.
Section 5. Transfer And Other Restrictions. Prior to the termination
of this Agreement, Stockholder agrees not to, directly or indirectly:
(a) except pursuant to the terms of the Merger Agreement or
pursuant to the terms of a trading plan adopted pursuant to Rule 10b5-1 under
the Exchange Act in effect prior to the date hereof, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition (collectively, "Transfer") of any or all of the
Securities or any interest therein, except (i) as provided in Section 6 hereof;
(ii) for Transfers of the Securities in the open market; (iii) for private block
trades of the Securities, provided that under no circumstances may Stockholder
transfer any Securities pursuant to this Section 5(a)(iii) (A) to any person or
group which is the "beneficial owner" (as determined pursuant to Rule 13d-3
under the Exchange Act) of 5% or more of the outstanding shares of Company
Common Stock or (B) representing 2% or more of the outstanding shares of Company
Common Stock to any one person or group and/or (iv) other Transfers (including
distributions of Securities by Stockholder to its shareholders) in which each
transferee shall have: (A) executed a counterpart of this Agreement and a proxy
in the form attached hereto as ANNEX I and (B) agreed in writing to hold such
Securities (or interest in such Securities) subject to all of the terms and
provisions of this Agreement;
(b) grant any proxy or power of attorney, deposit any of the
Securities into a voting trust or enter into a voting agreement or arrangement
with respect to the Securities except as provided in this Agreement; or
(c) take any other action for the purpose of making any
representation or warranty of Stockholder contained herein untrue or incorrect
or of preventing or disabling Stockholder from performing its obligations under
this Agreement.
Notwithstanding anything to the contrary in this Agreement, any Securities
Transferred in a manner permitted by Section 5(a) hereof shall be Transferred
free and clear of any voting restriction and of the Proxy (as defined below), in
each case except to the extent specifically provided by Section 5(a)(iv).
Section 6. Voting of the Company Common Stock. Stockholder hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time or (b) termination of this
Agreement in accordance with its terms, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of
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the holders of the Company Common Stock, however called, or in connection with
any written consent of the holders of the Company Common Stock, Stockholder (in
his or her capacity as such) will, provided that Stockholder has received
written notice from Parent within a reasonable period of time prior to any such
meeting that Parent is unable to vote the Securities subject to the irrevocable
proxy in the form attached hereto as ANNEX I (the "PROXY") at the meeting,
appear at the meeting or otherwise cause the Securities which are eligible to
vote and which are held of record or over which Stockholder has sole voting
power to be counted as present thereat for purposes of establishing a quorum and
vote or consent (or cause to be voted or consented) the Securities which are
eligible to vote and which are held of record or over which Stockholder has sole
voting power:
(A) in favor of the adoption of the Merger
Agreement and the approval of other actions contemplated by the
Merger Agreement and any actions required in furtherance thereof;
(B) against approval of any proposal made in
opposition to, or in competition with, the Merger Agreement or the
consummation of the Merger; and
(C) against 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.
Except as otherwise permitted under Section 5(a) hereof, Stockholder
may not enter into any agreement or understanding with any person the effect of
which would be inconsistent with or violative of any provision contained in this
Section 6. 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 of the Company (it being understood that
this Agreement shall apply to Stockholder solely in Stockholder's capacity as a
stockholder of the Company) or voting in Stockholder's sole discretion on any
matter other than those matters referred to in subsections (A), (B) and (C)
above.
Section 7. Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Parent the Proxy, which shall
be irrevocable to the fullest extent permitted by applicable law, with respect
to the Securities except as otherwise contemplated by Section 5(a) hereof;
provided, that, the Proxy shall terminate and be revoked with respect to any
Securities concurrently with the Transfer of such Securities in accordance with
Section 5(a) without any notice or action by Stockholder, the transferee or any
other person.
Section 8. Stop Transfer; Legending of Shares.
(a) Stockholder agrees with, and covenants to, Parent that
Stockholder will not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Securities, unless such transfer is made in compliance with this Agreement.
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(b) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of share or the like other than pursuant
to the Merger, the term "Existing Shares" will be deemed to refer to and include
the shares of the Company Common Stock as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Existing
Shares may be changed or exchanged and appropriate adjustments shall be made to
the terms and provisions of this Agreement.
Section 9. Termination. This Agreement shall terminate on the
earliest of (a) termination of the Merger Agreement, (b) the agreement of the
parties hereto to terminate this Agreement, (c) the Effective Time and (d) March
31, 2004; provided, however, that this Agreement shall earlier terminate with
respect to any Securities Transferred by Stockholder in accordance with Section
5(a) hereof upon such Transfer.
Section 10. Miscellaneous.
(a) Entire Agreement. This Agreement (including the Proxy
referred to herein) constitutes the entire agreement and supersedes all other
prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
(b) Successors and Assigns. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent of
the other parties hereto. Except with respect to Securities Transferred by
Stockholder as contemplated by Section 5(a) hereof, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by each party and such
party's respective heirs, beneficiaries, executors, representatives and
permitted assigns.
(c) Amendment and Modification. This Agreement may not be
amended, altered, supplemented or otherwise modified or terminated except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(d) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or sent via telecopy (receipt confirmed) to the
parties at the following addresses or telecopy numbers (or at such other address
or telecopy numbers for a party as shall be specified by like notice):
(i) if to Parent or Merger Sub, to:
Yahoo! Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone No.: (000) 000-0000
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Facsimile No.: (000) 000-0000
with a copy at the same address to the attention of the
General Counsel and Secretary and with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
(ii) If to Stockholder, to the address set forth on the signature
page hereto, with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
(e) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Other Remedies; Specific Performance. Except as otherwise
provided herein, any and all remedies herein expressly conferred upon a party
will be deemed cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
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(g) No Waiver; Remedies Cumulative. No failure or delay on the
part of any party hereto in the exercise of any right hereunder will impair such
right or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor will any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. Except as otherwise provided herein, all rights and remedies
existing under this Agreement are cumulative to, and not exclusive to, and not
exclusive of, any rights or remedies otherwise available and the exercise by a
party of any one remedy will not preclude the exercise of any other remedy.
(h) No Survival. None of the representations, warranties,
covenants and agreements made in this Agreement shall survive the termination of
the Agreement in accordance with its terms, except for the agreements in this
Section 10.
(i) No Third Party Beneficiaries. This Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(j) Governing Law and Venue. This Agreement shall be governed
and construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflict of law thereof. In addition, each of
the parties hereto (a) consents to submit itself to the personal jurisdiction of
any Delaware state court in the event any dispute arises out of this Agreement,
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court and (c) agrees that it
will not bring any action relating to this Agreement in any court other than a
state court sitting in the State of Delaware.
(k) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(l) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
(m) Counterparts. This Agreement may be executed in one or
more counterparts, and by facsimile, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
* * * * * *
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IN WITNESS WHEREOF, Parent, Merger Sub and Stockholder have caused
this Agreement to be duly executed as of the day and year first written above.
YAHOO! INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
JULY 2003 MERGER CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
/s/ Xxxx Xxxxx
--------------------------------------------------
Xxxx Xxxxx (individually)
Shares beneficially owned:
2,000 shares of Company Common Stock (and
associated Company Rights)
80,000 shares of Company Common Stock issuable
upon exercise of Company Options
Address:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
ANNEX I
IRREVOCABLE PROXY
The undersigned Stockholder of Overture Services, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by applicable law) appoints Xxxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx and each of
them individually, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and re-substitution, to the full
extent of the undersigned's right, with respect to the Securities (as defined in
the Voting Agreement dated as of the date hereof (the "VOTING AGREEMENT")
between Yahoo! Inc., a Delaware corporation ("PARENT"), July 2003 Merger Corp.,
a Delaware corporation and the undersigned Stockholder of the Company) which the
undersigned Stockholder Beneficially Owns (as defined in the Voting Agreement)
until the termination of the Voting Agreement pursuant to its terms (including
terminations of the Voting Agreement with respect to Securities Transferred (as
defined in the Voting Agreement) in accordance with Section 5(a) thereof).
Capitalized terms used and not defined herein have the respective meanings
ascribed to them in the Voting Agreement. Upon the execution hereof, all prior
proxies given by the undersigned with respect to the matters set forth in
clauses (A), (B) and (C) below are hereby revoked and no subsequent proxies will
be given.
This proxy is irrevocable to the fullest extent permitted by applicable
law, is granted pursuant to the Voting Agreement and is granted in consideration
of Parent entering into the Merger Agreement. This proxy is executed and
intended to be irrevocable to the fullest extent permitted by law in accordance
with the provisions of Section 212(c) of the Delaware General Corporation Law.
The attorneys and proxies named above are empowered to exercise all voting
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Securities) of the undersigned at any time prior to
termination of the Voting Agreement at every annual, special or adjourned
meeting of the stockholders of the Company and in every written consent in lieu
of such meeting as follows:
(A) in favor of the adoption of the Merger
Agreement and the approval of other actions contemplated by the
Merger Agreement and any actions required in furtherance thereof;
and
(B) against approval of any proposal made in
opposition to, or in competition with, the Merger Agreement or the
consummation of the Merger; and
(C) against 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 Securities on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the successors
and assigns of the undersigned; provided, however, that this Proxy shall
terminate and be revoked with respect to any Securities Transferred (as defined
in the Voting Agreement) in accordance with Section 5(a) of the Voting Agreement
upon such Transfer without any notice or action by Stockholder, the transferee
or any other person, and shall thereafter have no further force or effect with
respect to such Securities.
This Proxy is coupled with an interest and is irrevocable to the fullest
extent permitted by law.
Dated: July 14, 2003
/s/ Xxxx Xxxxx
-----------------------------------------
Xxxx Xxxxx (Individually)
