EXHIBIT 2.3
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 Xxxx Xxxxx 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
2
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
3
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
4
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.
5
(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
6
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.
7
(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.
* * * * * *
8
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/ Xxxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and
Secretary
JULY 2003 MERGER CORP.
By:/s/ Xxxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Secretary
IDEALAB
By:/s/ Xxxx Xxxxx
------------------------
Name: Xxxx Xxxxx, CEO
Shares beneficially owned:
3,079,915 shares of Company Common
Stock (and associated Company
Rights)
0 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.
10
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 Signature of Stockholder:
IDEALAB
/s/ Xxxx Xxxxx
------------------------
Xxxx Xxxxx, CEO
