Exhibit 10.10
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MAJORITY STOCKHOLDER VOTING AGREEMENT
THIS MAJORITY STOCKHOLDER 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 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;
C. As an inducement to Buyer to enter into the Merger Agreement, certain
stockholders of Stockholder have entered into voting agreements with Buyer,
pursuant to which such stockholders have agreed to vote their shares of
Stockholder Common Stock (as defined below) in favor of approval of the
disposition of the shares of Stockholder Common Stock held by Stockholder in the
Merger, in the form attached as Exhibit A hereto;
D. 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 earliest to occur of (i) such
date and time as the Merger Agreement shall have been terminated pursuant
to Article VIII thereof and (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) "Stockholder Common Stock" shall mean the common stock, par value
$.01 per share, of Stockholder.
(e) 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
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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 Annex A
(with such modifications as Buyer may 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
Annex 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; (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy; and (iv) has taken, and caused the Company to take, all
action necessary to exempt (or continue the exemption of) the
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Merger, the transactions contemplated by the Merger Agreement and the
disposition of Stockholder's Shares in the Merger from any state takeover or
similar law (including Section 203 of the Delaware General Corporation Law and
Chapters 110D and 110F of the Massachusetts General Laws) that might otherwise
apply to the Merger, the transactions contemplated by the Merger Agreement or
the disposition of Stockholder's Shares in the Merger. 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.
7. No Solicitation.
(a) No Solicitation or Negotiation. 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 Company Acquisition Proposal or Stockholder
Acquisition Proposal (each 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 Stockholder 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 Company
Acquisition Proposal or Stockholder Acquisition Proposal or any inquiry,
proposal or offer that could reasonably be expected to lead to any Company
Acquisition Proposal or Stockholder Acquisition Proposal.
Notwithstanding the foregoing and subsection (e) below:
(i) to the extent any Representative of Stockholder is a director of
the Company, 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 a Company Acquisition Proposal pursuant to (A) Section 6.1(a) of the
Merger Agreement in connection with a bona fide, unsolicited Company
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 such Representative of this Section 7 or
a breach by the Company of Section 6.1 of the Merger Agreement.
(ii) to the extent any Representative of Stockholder is a director of
the Stockholder, Stockholder may permit such Representative to take such
actions in his or her capacity as director of Stockholder as are expressly
permitted to be taken by the Board of Directors of Stockholder with respect
to a Stockholder Acquisition Proposal pursuant to (A) Section 7(a)(iv) of
this Agreement in connection with a bona fide, unsolicited Stockholder
Acquisition Proposal made or received after the date of this Agreement, (B)
Section 7(b) of this Agreement and (C) Section 7(d) of this Agreement, in
each case subject to the conditions and limitations set forth in this
Agreement and in the case of (A) and (B), as long as such actions do not
follow a breach by such Representative or Stockholder of this Section 7.
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(iii) Stockholder may (x) furnish information with respect to the
Company to a person making a Company Acquisition Proposal and its
Representatives pursuant to a customary confidentiality agreement with
terms no less favorable to Stockholder than the Confidentiality Agreement
(as defined in the Merger Agreement) is favorable to the Company and (y)
participate in discussions or negotiations with such person and its
Representatives regarding any Company Acquisition Proposal, in each case
only to the same extent as the Company is taking such actions in compliance
with Section 6.1(a) of the Merger Agreement in connection with such Company
Acquisition Proposal.
(iv) prior to the receipt of the Requisite Stockholder Approval at the
Stockholder Meeting (each as defined below), Stockholder may, to the extent
required by the fiduciary obligations of the Stockholder Board or any
special committee thereof, as determined in good faith by the Stockholder
Board or any such special committee, after consultation with its outside
counsel, in response to a bona fide, unsolicited Stockholder Acquisition
Proposal made or received after the date of this Agreement (including,
without limitation, a Stockholder Acquisition Proposal received from a
person with whom Stockholder had discussions or to whom Stockholder
furnished information prior to the date hereof) that the Stockholder Board
or any special committee determines in good faith after consultation with
its outside counsel and its financial advisor is a Stockholder Superior
Proposal (as defined below), in each case that did not follow a breach by
Stockholder of this Section 7, and subject to compliance with Section 7(c),
(x) furnish information with respect to Stockholder to the person making
such Stockholder Acquisition Proposal and its Representatives pursuant to a
customary confidentiality agreement with terms no less favorable to
Stockholder than the Confidentiality Agreement (as defined in the Merger
Agreement) is favorable to the Company and (y) participate in discussions
or negotiations (including solicitation of a revised Stockholder
Acquisition Proposal) with such person and its Representatives regarding
any Stockholder Acquisition Proposal. The foregoing shall not prohibit the
Stockholder from taking the actions set forth in clauses (x) and (y) of the
immediately preceding sentence with respect to a Company Acquisition
Proposal with respect to which the Company's Board of Directors (or special
committee thereof) has made the determination specified in the last
paragraph of Section 6.1(a) of the Merger Agreement in accordance with the
terms thereof for so long as such determination remains in effect, to the
extent that such actions are permitted to be taken by the by the Board of
Directors of the Company with respect to such Company Acquisition Proposal
pursuant to Section 6.1(a) of the Merger Agreement in connection with a
bona fide, unsolicited Company Acquisition Proposal made or received after
the date of this Agreement, subject to the conditions and limitations set
forth in the Merger Agreement and as long as such actions do not follow a
breach by the Stockholder of this Section 7 or a breach by the Company of
Section 6.1 of the Merger Agreement. Without limiting the foregoing, it is
agreed that any violation of the restrictions set forth in this Section
7(a) by any Representative of Stockholder or any subsidiary of it, whether
or not such person is purporting to act on behalf of Stockholder or
otherwise, shall be deemed to be a breach of this Section 7(a) by
Stockholder.
(b) No Change in Recommendation or Alternative Acquisition Agreement.
Neither the Stockholder Board nor any committee thereof shall:
(i) except as set forth in this Section 7, withdraw or modify, or
propose to withdraw or modify, in a manner adverse to the Buyer, the
approval or recommendation by the Stockholder Board or any such committee
of the Merger Agreement, the Merger or the Stockholder Voting Proposal;
(ii) cause or permit Stockholder to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement,
merger agreement or similar agreement (an "Alternative Acquisition
Agreement") constituting or relating to any Company Acquisition Proposal or
Stockholder Acquisition Proposal (other than a confidentiality agreement
referred to in Section 7(a) entered into in the circumstances referred to
in Section 7(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or
recommend, any Company Acquisition Proposal or Stockholder Acquisition
Proposal.
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Notwithstanding the foregoing, the Stockholder Board or any special committee
thereof may in response to a Stockholder Superior Proposal that did not follow a
breach by Stockholder of this Section 7, to the extent the Stockholder Board or
any special committee thereof, respectively, determines in good faith, after
consultation with its outside counsel, that its fiduciary obligations require it
to do so, take any of the actions referred to in clauses (i) or (iii) of the
first sentence of this Section 7(b) with respect to such Stockholder Superior
Proposal; provided in the case of the actions referred to in clause (iii) that
(x) Stockholder has, at least three business days prior to taking any action
referred to in clause (iii), notified the Buyer in writing that it has received
a Stockholder Superior Proposal and intends to approve, adopt or recommend, or
propose to adopt, approve or recommend, such Stockholder Superior Proposal (such
notice to include a copy of such definitive acquisition agreement) and (ii) the
Buyer shall not have made, within three business days of receipt of such notice,
a binding written offer that causes the Stockholder Board (or any special
committee thereof) to no longer be able to determine in good faith, after
consultation with its financial advisor and its legal counsel, that such
Stockholder Superior Proposal remains a Stockholder Superior Proposal.
(c) Notice to the Buyer; Additional Negotiations. Stockholder shall
immediately notify the Buyer orally, with written confirmation to follow
promptly (and in any event within 48 hours), of any Company Acquisition Proposal
or Stockholder Acquisition Proposal or any request for nonpublic information in
connection with, or that would reasonably be expected to lead to, any Company
Acquisition Proposal or Stockholder Acquisition Proposal and of any material
modifications to any Company Acquisition Proposal or Stockholder Acquisition
Proposal received by Stockholder, such notice to include all written materials
delivered to Stockholder by the person making such inquiry, Company Acquisition
Proposal or Stockholder Acquisition Proposal and in any case the identity of
such person and a description of the terms of such Company Acquisition Proposal
or Stockholder Acquisition Proposal, as the case may be.
(d) Certain Permitted Disclosure. Nothing contained in this Section 7 or in
Section 11 shall be deemed to prohibit Stockholder from taking and disclosing to
its stockholders a position with respect to a tender offer contemplated by Rules
14d-9 and 14e-2(a) promulgated under the Exchange Act; provided, however, that,
except as set forth in Section 7(b), in no event shall the Stockholder Board or
any special committee thereof (i) withdraw or modify, or propose to withdraw or
modify, its position with respect to the Merger Agreement, the Merger or the
Stockholder Voting Proposal, or (ii) adopt, approve or recommend, or propose to
adopt, approve or recommend, any Company Acquisition Proposal or Stockholder
Acquisition Proposal.
(e) Cessation of Ongoing Negotiations. 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, a Company Acquisition Proposal or a Stockholder Acquisition Proposal.
(f) Stockholder shall provide the Buyer with at least twenty four (24)
hours prior notice (or such lesser prior notice as provided to the Stockholder
Board or any special committee thereof) of any meeting of the Stockholder Board
or any special committee thereof at which the Stockholder Board (or such special
committee) is reasonably expected to consider a Company Acquisition Proposal or
a Stockholder Acquisition Proposal.
(g) Definitions.
(i) "Company 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.
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(ii) "Stockholder 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 Stockholder or any material Subsidiary of
it, (ii) any proposal for the issuance by Stockholder 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 Stockholder,
in each case other than the transactions contemplated by the Merger
Agreement; provided however that Stockholder Acquisition Proposal shall not
include (x) any Company Acquisition Proposal, (y) any inquiry, proposal or
offer for a merger, consolidation, dissolution, sale of substantial assets,
tender offer, recapitalization, share exchange or other business
combination involving Stockholder or any material Subsidiary of it, or 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 Stockholder, in each case that is conditioned upon the
consummation of the Merger and the other transactions contemplated by the
Merger Agreement, on the terms and subject to the conditions set forth in
the Merger Agreement, or pursuant to which the acquiror would not, directly
or indirectly, acquire the Shares or (z) the transactions contemplated by
the Asset Purchase Agreement, dated as of October 22, 2003, between
Stockholder and Xxxxxx Xxxxxxxxxxx or any other sale of the Stockholder's
services business (for avoidance of doubt, which does not involve, directly
or indirectly, the Company or the Shares).
(iii) "Stockholder Superior Proposal" means any unsolicited, bona fide
written proposal made by a third party to acquire more than 51% of the
equity securities or more than 51% of the assets of Stockholder, pursuant
to a tender or exchange offer, a merger, a consolidation or a sale of its
assets, (i) on terms which the Stockholder Board or any special committee
thereof determines in its good faith judgment to be more favorable from a
financial point of view to the holders of common stock of Stockholder than
the transactions contemplated by the Merger Agreement (after consultation
with its financial advisor), taking into account all the terms and
conditions of such proposal and the Merger Agreement (including any
proposal by the Buyer to amend the terms of the Merger Agreement), (ii)
that in the good faith judgment of the Stockholder Board or any special
committee thereof is reasonably capable of being completed on the terms
proposed, taking into account all financial, regulatory, legal and other
aspects of such proposal and (iii) for which any required financing is
committed (or, in the case of Section 7(a) only, with respect to which the
Stockholder Board in good faith concludes, after consultation with its
financial advisors, that any required financing is reasonably likely to be
available).
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; Effectiveness.
(a) This Agreement shall terminate as of the Expiration Date. In addition,
this Agreement may be terminated:
(i) by either the Buyer or Stockholder, if at the Stockholder Meeting
(including any adjournment or postponement thereof permitted by this
Agreement) at which a vote on the Stockholder Voting Proposal is taken, the
Requisite Stockholder Approval shall not have been obtained (provided that
the right to terminate this Agreement under this Section 9(a)(i) shall not
be available to Stockholder if its failure to fulfill any material
obligation under this Agreement has been a principal cause of or has
principally resulted in the failure to obtain the Requisite Stockholder
Approval); or
(ii) by Buyer, if: (a) a majority of the members of the Stockholder Board
(or any special committee thereof) shall have failed to include the Stockholder
Board Recommendation in the Proxy Statement or shall have withdrawn or modified
the Stockholder Board Recommendation in any manner adverse to Buyer; (b) the
Stockholder Board (or any special committee thereof) shall have approved or
recommended to the stockholders of Stockholder a Stockholder Acquisition
Proposal or a Company Acquisition Proposal; (c) a tender offer or exchange offer
for 15% or more of the
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outstanding shares of Stockholder Common Stock shall have been commenced and
the Stockholder Board (or any special committee thereof) recommends that the
stockholders of Stockholder tender their shares in such tender or exchange
offer or, within 10 business days after the commencement of such tender or
exchange offer, fails to recommend against acceptance of such offer; (d)
Stockholder shall have materially breached its obligations under Section 7
or Section 11; or (e) Stockholder shall have, in violation of this
Agreement, willfully failed to hold the Stockholder Meeting and submit the
Stockholder Voting Proposal to Stockholder's stockholders by the date which
is one business day prior to the Outside Date.
(b) Following termination of this Agreement pursuant to Section 9(a), this
Agreement and the Proxy delivered in connection herewith shall be of no further
force and effect; provided that Sections 12 and 13 hereof shall remain in full
force and effect and survive any termination of this Agreement.
(c) This Agreement shall be effective as of the date first set forth above;
provided, however, that notwithstanding anything to the contrary set forth
herein, the provisions of Section 3 hereof shall become effective at such time
as the Stockholder Voting Proposal shall have been approved and adopted in
accordance with Massachusetts Law (as defined below) at the Stockholder Meeting
at which a quorum is present (the "Requisite Stockholder Approval").
10. Proxy Statement. As promptly as practicable after the execution of this
Agreement Stockholder, in cooperation with Buyer, shall prepare and file with
the SEC a proxy statement (the "Stockholder Proxy Statement") to be sent to the
stockholders of Stockholder in connection with the meeting of the Company's
stockholders (the "Stockholder Meeting") to be called pursuant to Section 11
hereof for purposes of obtaining the approval by the stockholders of Stockholder
required under Chapter 156B of the Massachusetts General Laws ("Massachusetts
Law") of the disposition by Stockholder of the Shares pursuant to the Merger
(the "Stockholder Voting Proposal"). Stockholder shall endeavor to promptly
respond to any comments of the SEC. Stockholder shall use its commercially
reasonable efforts to cause the Stockholder Proxy Statement to be mailed to the
stockholders of Stockholder at the earliest practicable time. Stockholder shall
notify Buyer and the Company promptly upon the receipt of any comments from the
SEC or its staff or any other government officials and of any request by the SEC
or its staff or any other government officials for amendments or supplements to
the Stockholder Proxy Statement or for additional information and shall supply
Buyer and the Company with copies of all correspondence between Stockholder or
any of its representatives, on the one hand, and the SEC, or its staff or any
other government officials, on the other hand, with respect to the Stockholder
Proxy Statement. Whenever any event occurs which is required to be set forth in
an amendment or supplement to the Stockholder Proxy Statement, Stockholder, the
Company or Buyer, as the case may be, shall promptly inform the other of such
occurrence and cooperate in filing with the SEC or its staff or any other
government officials, and/or mailing to stockholders of Stockholder, such
amendment or supplement. Stockholder will include in the Stockholder Proxy
Statement the Stockholder Board Recommendation. Stockholder shall promptly make
all necessary filings with respect to the Merger under the Securities Act of
1933, as amended, the Exchange Act, applicable state blue sky laws and the rules
and regulations thereunder. Each of the Company and Buyer shall cooperate with
the Stockholder in connection with the preparation of the Stockholder Proxy
Statement and shall furnish all information relating to it and the Merger as the
Stockholder may reasonably request for inclusion in the Stockholder Proxy
Statement.
11. Stockholder Meeting.
(a) Stockholder, acting through the Board of Directors of Stockholder (the
"Stockholder Board") or any special committee thereof, shall take all actions in
accordance with applicable law, its Articles of Organization and Bylaws and the
rules of The Nasdaq Stock Market to promptly and duly call, give notice of,
convene and hold as promptly as practicable, and in any event within 45 days
after the mailing of the Stockholder Proxy Statement, the Stockholder Meeting
for the purpose of considering and voting upon the Stockholder Voting Proposal.
Subject to Section 7(b), the Stockholder Board or any special committee thereof
shall recommend approval and adoption of the Stockholder Voting Proposal by the
stockholders of Stockholder (the "Stockholder Board Recommendation") and include
such recommendation in the
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Stockholder Proxy Statement, and neither the Stockholder Board nor any committee
thereof shall withdraw or modify, or propose or resolve to withdraw or modify in
a manner adverse to the Buyer, the Stockholder Board Recommendation. Subject to
Section 7(b), Stockholder shall take all action that is both reasonable and
lawful to solicit from its stockholders proxies in favor of the Stockholder
Voting Proposal and shall take all other action necessary or advisable to secure
the vote or consent of the stockholders of Stockholder required by the rules of
The Nasdaq Stock Market or by Massachusetts Law to obtain such approvals.
Notwithstanding anything to the contrary contained in this Agreement,
Stockholder, after consultation with Buyer, may adjourn or postpone the
Stockholder Meeting to the extent necessary to ensure that any required
supplement or amendment to the Stockholder Proxy Statement is provided to
Stockholder's stockholders or, if as of the time for which the Stockholder
Meeting is originally scheduled (as set forth in the Stockholder Proxy
Statement) there are insufficient shares of capital stock of Stockholder
represented (either in person or by proxy) to constitute a quorum necessary to
conduct the business of the Stockholder Meeting.
(b) Unless this Agreement has been terminated pursuant to Section 9 hereof,
Stockholder shall (A)(i) call, (ii) give notice of, (iii) convene and (iv) hold
the Stockholder Meeting in accordance with this Section 11 and (B) submit the
Stockholder Voting Proposal to its stockholders for the purpose of acting upon
such proposal whether or not (i) the Stockholder Board at any time subsequent to
the date hereof determines, in the manner permitted by Section 7, that the
Stockholder Voting Proposal is no longer advisable or recommends that the
stockholders of Stockholder reject such proposal, or (ii) any actual, potential
or purported Company Acquisition Proposal, Stockholder Acquisition Proposal or
Stockholder Superior Proposal has been commenced, disclosed, announced or
submitted to the Company or Stockholder. Stockholder shall ensure that all
proxies solicited by the Company in connection with the Stockholder Meeting are
solicited, in compliance with Massachusetts Law, its Articles of Organization
and Bylaws, the rules of the Nasdaq Stock Market and all other applicable legal
requirements.
12. Fees and Expenses.
(a) Except as set forth in this Section 12, all fees and expenses incurred
in connection with this Agreement, the Merger Agreement and the transactions
contemplated thereby and hereby shall be paid by the party incurring such fees
and expenses, whether or not the Merger is consummated.
(b) Subject to the last sentence of this subsection (b), Stockholder shall
reimburse the Buyer for up to $500,000 of expenses of the Buyer actually
incurred relating to the transactions contemplated by this Agreement and the
Merger Agreement prior to termination (including, but not limited to, fees and
expenses of the Buyer's counsels, accountants and financial advisors, including
any topping fee and/or fairness opinion fee, if any) ("Reimbursable Expenses"),
in the event of any of the following: (A) the Requisite Stockholder Approval
shall not have been obtained at the Stockholder Meeting (including any
adjournment or postponement thereof permitted by this Agreement) at which a vote
on the Stockholder Voting Proposal is taken or (B) (i) a majority of the members
of the Stockholder Board (or any special committee thereof) shall have failed to
include the Stockholder Board Recommendation in the Proxy Statement or shall
have withdrawn or modified the Stockholder Board Recommendation in any manner
adverse to Buyer; (ii) the Stockholder Board (or any special committee thereof)
shall have approved or recommended to the stockholders of Stockholder a
Stockholder Acquisition Proposal or a Company Acquisition Proposal; (iii) a
tender offer or exchange offer for 15% or more of the outstanding shares of
Stockholder Common Stock shall have been commenced and the Stockholder Board (or
any special committee thereof) recommends that the stockholders of Stockholder
tender their shares in such tender or exchange offer or, within 10 business days
after the commencement of such tender or exchange offer, fails to recommend
against acceptance of such offer (unless, by its terms, the offer is conditioned
on the closing of the Merger); (iv) Stockholder shall have materially breached
its obligations under Section 7 or Section 11; or (v) Stockholder shall have, in
violation of this Agreement, willfully failed to hold the Stockholder Meeting
and submit the Stockholder Voting Proposal to Stockholder's stockholders by the
date which is one business day prior to the Outside Date. The expenses payable
pursuant to this Section 12(b) shall be paid by wire transfer of same-day funds
within one business day after demand therefor following the termination of this
Agreement or the Merger Agreement (whichever is earlier).
8
Notwithstanding the foregoing, in the event both the Majority Stockholder and
the Company are required to pay expenses (hereunder in the case of the Majority
Stockholder and under Section 8.3 (b) of the Merger Agreement in the case of the
Company), (1) the Majority Stockholder shall only be required to reimburse Buyer
for its Reimbursable Expenses in excess of $500,000, provided that in no event
shall the Majority Stockholder be required to reimburse Buyer for any expenses
for which Buyer was reimbursed by the Company or pay to Buyer an amount in
excess of $500,000 in the aggregate; and (2) the terms set forth in clause (1)
shall not apply if the Majority Stockholder is required to reimburse the Buyer
pursuant to Section 12(b)(A) above and a third party shall not have previously
made a Company Acquisition Proposal.
(c) Stockholder shall pay the Buyer a termination fee of $3 million in the
event of any of the following: (A) the Requisite Stockholder Approval shall not
have been obtained at the Stockholder Meeting (including any adjournment or
postponement thereof permitted by this Agreement) at which a vote on the
Stockholder Voting Proposal is taken if (x) a third party shall have made and
publicly announced a Company Acquisition Proposal or a Stockholder Acquisition
Proposal prior to the termination of this Agreement and (y) within 12 months
following the termination of this Agreement a Company Acquisition Proposal or
Stockholder Acquisition Proposal is consummated or the Company or Stockholder
enters into a binding agreement or letter of intent providing for a Company
Acquisition Proposal or Stockholder Acquisition Proposal, as applicable (and a
Company Acquisition Proposal or a Stockholder Acquisition Proposal is
subsequently consummated) (provided that for purposes of this clause (A),
references to "15%" in the definition of "Company Acquisition Proposal" and
"Stockholder Acquisition Proposal" shall be deemed to be references to "40%") or
(B)(i) a majority of the members of the Stockholder Board (or any special
committee thereof) shall have failed to include the Stockholder Board
Recommendation in the Proxy Statement or shall have withdrawn or modified the
Stockholder Board Recommendation in any manner adverse to Buyer; (ii) the
Stockholder Board (or any special committee thereof) shall have approved or
recommended to the stockholders of Stockholder a Stockholder Acquisition
Proposal or a Company Acquisition Proposal; (iii) a tender offer or exchange
offer for 15% or more of the outstanding shares of Stockholder Common Stock
shall have been commenced and the Stockholder Board (or any special committee
thereof) recommends that the stockholders of Stockholder tender their shares in
such tender or exchange offer or, within 10 business days after the commencement
of such tender or exchange offer, fails to recommend against acceptance of such
offer (unless, by its terms, the offer is conditioned on the closing of the
Merger); (iv) Stockholder shall have materially and willfully breached its
obligations under Section 7 or Section 11; or (v) Stockholder shall have, in
violation of this Agreement, willfully failed to hold the Stockholder Meeting
and submit the Stockholder Voting Proposal to Stockholder's stockholders by the
date which is one business day prior to the Outside Date. Any fee due under this
Section 12(c) shall be paid by wire transfer of same-day funds (x) upon, and as
a condition to the consummation of an Acquisition Proposal described in clause
(A) above and (z) in the case of (B), within one business day after the date of
any termination of this Agreement or the Merger Agreement (whichever is earlier)
by the Buyer or the Company. Notwithstanding the foregoing, if the Company is
required to pay Buyer a termination fee pursuant to Section 8.3(c) of the Merger
Agreement, then the Majority Stockholder shall not be required to pay Buyer any
fee pursuant to this Section 12(c).
13. 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.
9
(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:
ePresence, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
10
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. Except to the extent that
Massachusetts Law is mandatorily applicable to any provision hereof, 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.
(k) No Transfer by the Company. The Company hereby covenants and agrees not
to permit any Transfer of the Shares not expressly allowed by this Agreement to
be effected and to take all action reasonably necessary to stop any such
purported Transfer.
(l) Anti-Takeover Laws. Stockholder shall take, and shall cause the Company
to take, all action necessary to exempt (or continue the exemption of) the
Merger, the transactions contemplated by the Merger Agreement and the
disposition of Stockholder's Shares in the Merger from any state takeover law or
similar law (including Section 203 of the Delaware General Corporation Law and
Chapters 110D and 110F of the Massachusetts General Laws) now or hereafter in
effect that might otherwise apply to the Merger, the transactions contemplated
by the Merger Agreement or the disposition of Stockholder's Shares in the
Merger.
(m) Proxy Statement. Any information relating to the Company to be supplied
by or on behalf of the Company for inclusion in the Stockholder Proxy Statement
shall not, on the date the Stockholder Proxy Statement is first mailed to
stockholders of the Stockholder, or at the time of the Stockholder Meeting,
contain any untrue statement of any material fact, or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under
11
which they were made, not misleading. If at any time prior to the Stockholder
Meeting any fact or event relating to the Company or any of its Affiliates which
is required to be set forth in a supplement to the Stockholder Proxy Statement
should be discovered by the Company or should occur, the Company shall promptly
inform the Stockholder of such fact or event.
[The remainder of this page has been intentionally left blank]
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
INFOSPACE, INC. EPRESENCE, INC.
By:/s/Xxxxx X Xxxxxxx By:/s/Xxxxxxx X. Xxxxx
------------------ -------------------
Signature of Authorized Signatory Signature of Authorized Signatory
Name: X.X. Xxxxxxx Name:
Title: Chairman/CEO Title:
SWITHCHBOARD INCORPORATED Shares beneficially owned:
By:/s/Xxxx Xxxxxxxx shares of Company Common Stock
----------------
Signature of Authorized Signatory
Name: shares of Company Common Stock
issuable upon exercise of outstanding
Title: options
[Signature Page to Majority Stockholder Voting Agreement]
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