STOCKHOLDER VOTING
AGREEMENT
This STOCKHOLDER VOTING AGREEMENT
(this “ Agreement ”) is made and entered into as
of November 5, 2006 by and among NAVTEQ Corporation, a Delaware
corporation (the “ Parent ”), NAVTEQ Holdings
B.V., a corporation organized under the laws of The Netherlands
(“ BV Sub ”), NAVTEQ Holdings Delaware, Inc., a
Delaware corporation and wholly-owned subsidiary of Parent (“
Merger Sub ”), Traffic.com, Inc., a Delaware
corporation (the “ Company ”), and the person
whose name appears on the signature page hereto as a Stockholder
(the “ Stockholder ”) of the Company.
Capitalized terms used and not otherwise defined herein, and
defined in the Merger Agreement (as defined below), shall have the
respective meanings ascribed to them in the Merger
Agreement.
RECITALS
WHEREAS, concurrently with the
execution of this Agreement, the Company, Parent, BV Sub and Merger
Sub 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 the Merger;
WHEREAS, the Stockholder is the
beneficial owner of such number of shares of common stock of the
Company, par value $0.01 per share (the “ Company Common
Stock ”), set forth on the signature page hereto, and
options, warrants or other rights to acquire such number of shares
of Company Common Stock as set forth on the signature page
hereto;
WHEREAS, the Stockholder has
expressed its intention to elect to receive the Merger
Consideration in respect of such Shares (as defined below)
beneficially owned by such Stockholder entirely in shares of Parent
Common Stock through the making of a Stock Election;
WHEREAS, as a material inducement
and a condition to Parent, BV Sub and Merger Sub entering into the
Merger Agreement, Parent has requested that the Stockholder agree,
and the Stockholder has agreed (in the Stockholder’s capacity
as such), for the benefit of Parent, BV Sub and Merger Sub, to
enter into this Agreement to facilitate the consummation of the
Merger;
NOW, THEREFORE, in consideration of
the foregoing premises and the representations, warranties,
covenants and agreements set forth herein, as well as other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and accepted, and intending to be legally
bound hereby, Parent, BV Sub, Merger Sub and the Stockholder hereby
agree as follows:
1.
Certain Definitions . For purposes of this
Agreement:
“
Expiration Date
” shall mean the earlier to
occur of (a) such date and time as the Merger Agreement shall have
been validly terminated pursuant to its terms, (b) the Effective
Time, or (c) the occurrence of a Material Adverse Amendment;
provided, however, that the obligations of the
Stockholder pursuant to Section 9
hereof shall survive the Expiration Date and continue for such time
as provided in Section 9.
“ Material Adverse
Amendment ” means an amendment to the Merger Agreement
that (i) materially and adversely affects the Stockholder and (ii)
is approved by the Company’s Board of Directors
notwithstanding the fact that in such vote the Stockholder’s
nominee on the Company’s Board of Directors voted against
such amendment.
“ Shares ” means
(a) all equity 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 the
Stockholder as of the date of this Agreement and (b) all additional
equity securities of the Company (including all additional options,
warrants and other rights to acquire shares of Company Common
Stock) of which Stockholder acquires beneficial ownership during
the period commencing with the execution and delivery of this
Agreement until the Expiration Date; provided, however, that
nothing herein shall obligate the holder to acquire additional
equity securities of the Company, by exercise of options, warrants
or other rights to acquire, or otherwise.
“ Voting Period ”
means the period commencing on the date of this Agreement and
continuing until the Expiration Date.
2.
Representations and Warranties of Stockholder .
The Stockholder represents and warrants to Parent, BV Sub and
Merger Sub as follows:
(a)
The Stockholder is the beneficial owner (as such term is defined in
Rule 13d-3 under the Exchange Act, provided, however, that for the
purposes of this Agreement, such term shall include any Shares that
may be acquired more than sixty (60) days from the date hereof) of
all of the Shares. The Stockholder has sole voting power and
the sole power of disposition with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights
(subject to applicable federal securities laws and the terms of
this Agreement). Such Shares constitute all of the Shares
beneficially owned by the Stockholder. The Shares are held by
the Stockholder, or by a nominee or custodian for the benefit of
the Stockholder, free and clear of all mortgages, claims, charges,
liens, security interests, pledges, options, proxies, voting trusts
or agreements (“ Encumbrances ”), except for any
such Encumbrances arising hereunder and Encumbrances applicable to
all securityholders alike, such as the restrictions upon resale
imposed by the Securities Act.
(b)
The Stockholder has the legal capacity, power and authority, as
applicable, to enter into and perform all of the
Stockholder’s obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes (assuming due execution and delivery of
this Agreement by Parent, BV Sub and Merger Sub) a valid and
binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except to the extent that
its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors’ rights generally or by general
equitable principles. The execution, delivery and performance
of this Agreement by the Stockholder will not violate any
agreement
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or court order to which the
Stockholder is a party or is subject, including, without
limitation, any voting agreement or voting trust, except for any of
the foregoing as would not impair the Stockholder’s ability
to perform its obligations under this Agreement in any material
respect.
(c)
Except for any applicable filings under the Exchange Act, no filing
with, and no permit, authorization, consent or approval of, any
Governmental Authority or any other Person is required to be made
or obtained by the Stockholder for the execution of this Agreement
by the Stockholder, compliance by the Stockholder with the
provisions hereof or performance of the Stockholder’s
obligations hereunder.
(d)
The Stockholder understands and acknowledges that Parent is
entering into, and causing BV Sub and Merger Sub to enter into, the
Merger Agreement in reliance upon the Stockholder’s
concurrent execution and delivery of this Agreement, including
Parent’s reliance on the Stockholder’s representations
and warranties contained herein.
3.
Representations and Warranties of the Company .
The Company hereby represents and warrants to Parent, BV Sub and
Merger Sub as follows:
(a)
The Company 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 the
Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except to the extent that its enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors’ rights
generally or by general equitable principles.
(b)
Except for filings under the Exchange Act, no filing with, and no
permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution of this Agreement by the
Company, compliance by the Company with the provisions hereof or
performance of its obligations hereunder.
4.
Representations and Warranties of Parent, BV Sub and Merger
Sub . Parent, BV Sub and Merger Sub hereby represent
and warrant to the Stockholder as follows:
(a)
Parent, BV Sub and Merger Sub have the corporate power and
authority to enter into and perform all of their respective
obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by Parent, BV Sub and
Merger Sub and constitutes a valid and binding agreement of each of
them, enforceable against them in accordance with its terms, except
to the extent that its enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors’ rights generally or
by general equitable principles.
(b)
Except for filings under the Exchange Act, no filing with, and no
permit, authorization, consent or approval of, any Governmental
Authority is necessary for the execution of this Agreement by
Parent, BV Sub or Merger Sub, compliance by Parent, BV Sub and
Merger Sub with the provisions hereof or performance of their
obligations hereunder.
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5.
Voting Agreement .
(a)
The Stockholder hereby irrevocably and unconditionally agrees that,
during the Voting Period, the Stockholder shall (i) appear (in
person or by proxy) at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the holders of
Company Common Stock, properly called, or otherwise cause the
Shares then beneficially owned by the Stockholder to be counted as
present thereat for purposes of establishing a quorum, and (ii)
vote or provide a written consent with respect to all Shares (or
will cause all Shares to be voted, or cause a written consent to be
provided with respect to all Shares) (A) in favor of adoption and
approval of the Merger Agreement and approval of the Merger, not
including any Material Adverse Amendment, (B) against any action,
proposal, transaction or agreement that would result, or could
reasonably be expected to result, in any material respect in a
breach of any covenant, representation or warranty or any other
obligation or agreement of the Company contained in the Merger
Agreement, and (C) against any proposal made in opposition to, or
in competition with, consummation of the Merger and the other
transactions contemplated by the Merger Agreement, including any
Acquisition Proposal. In all other matters, the Shares shall
be voted by and in the manner determined by the
Stockholder.
(b)
Notwithstanding any other provision of this Agreement, if the
Stockholder is a director or officer of the Company, it is
expressly understood and agreed that this Agreement shall not limit
or restrict any actions taken by the Stockholder in his or her
capacity as a director or officer of the Company either (i)
pursuant to Applicable Law or (ii) in exercising the
Company’s rights or fulfilling the Company’s
obligations under the Merger Agreement (to the extent permitted or
required by the Merger Agreement).
6.
Grant of Irrevocable Proxy . Concurrently with
the execution and delivery of this Agreement, the Stockholder has
delivered to Parent a proxy in the form attached hereto as
Exhibit A (the “ Proxy ”) with respect to
the Shares. Such Proxy shall be irrevocable to the fullest
extent permitted by Applicable Law and shall terminate upon the
termination of this Agreement.
7.
No Solicitation . The Stockholder shall, and
shall cause its affiliates that it controls and its and its control
affiliates’ respective directors, officers, employees,
investment bankers, attorneys, financial and other advisors or
other representatives not to, directly or indirectly, (i) solicit,
initiate, knowingly encourage, or induce the making, submission or
announcement of, an Acquisition Proposal, (ii) furnish to any
Person (other than Parent, BV Sub, Merger Sub or any designees of
Parent, BV Sub or Merger Sub) any non-public information relating
to the Company or any of its Subsidiaries, or afford access to the
business, properties, assets, books or records of the Company or
any of its Subsidiaries to any Person (other than Parent, BV Sub,
Merger Sub or any designees of Parent, BV Sub or Merger Sub), or
take any other action intended to assist or facilitate any
inquiries or the making of any proposal that constitutes or could
reasonably be expected to lead to an Acquisition Proposal, (iii)
participate or engage in discussions or negotiations with any
Person with respect to an Acquisition Proposal (other than to
notify such Person as to the existence of this provision), (iv)
approve, endorse or recommend an Acquisition Proposal, (v) enter
into any letter of intent, memorandum of understanding or other
agreement, contract or arrangement contemplating or otherwise
relating to an Acquisition
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Transaction, or (vi) terminate,
amend or waive any rights under any “standstill” or
other similar agreement between the Stockholder and any Person
(other than Parent). The Stockholder shall immediately cease
any and all existing activities, discussions or negotiations with
any persons (other than Parent and its affiliates and
representatives) conducted heretofore with respect to any
Acquisition Proposal. Without limiting the generality of the
foregoing, the Stockholder acknowledges and hereby agrees that any
violation of the restrictions set forth in this Section 7 by the
Stockholder or any representatives of the Stockholder shall be
deemed to be a breach of this Section 7 by the Stockholder.
The Stockholder shall not enter into any letter of intent or
similar document or any agreement contemplating or otherwise
relating to an Acquisition Proposal unless and until this Agreement
is terminated pursuant to its terms.
8.
No Transfers During Voting Period. The
Stockholder agrees that during the Voting Period, except as
expressly contemplated by the terms of this Agreement, such
Stockholder shall not, directly or indirectly, (i) sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of
(including by merger, testamentary disposition, interspousal
disposition pursuant to spousal domestic relations proceedings or
otherwise, or otherwise by operation of law) (collectively, “
Transfer ”) any of the Shares, or enter into any
contract, option or other agreement to Transfer any of the Shares,
or otherwise cause or permit the Transfer of any Shares, (ii) grant
any proxies or powers of attorney or enter into any voting trust or
other similar agreements or arrangements with respect to any
Shares; (iii) request that the Company register the Transfer of any
certificate or uncertificated interest representing any of the
Shares, or (iv) take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its
ability to perform its obligations under this Agreement. The
Stockholder hereby agrees that, in order to ensure compliance with
the restrictions referred to herein, the Company may issue
appropriate “stop transfer” instructions to its
transfer agent in respect of the Shares. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement,
the Stockholder may surrender shares in connection with
“cashless” or net exercise provisions of Company
Options or Warrants to the extent necessary to effect exercises
thereof (including the payment of any taxes required to be withheld
and paid with respect to such exercises).
9.
Agreement Regarding Stock Election; Lock-Up
.
(a)
The Stockholder agrees that, in connection with the consummation of
the Merger, it shall elect to receive the Merger Consideration in
respect of such Shares beneficially owned by such Stockholder
entirely in shares of Parent Common Stock (the “ Acquired
Parent Shares ”) through the making of a Stock Election
under the Merger Agreement. The Stockholder agrees that it
shall submit one or more Form(s) of Election designating a Stock
Election with respect to all of the Shares and, in the event that
the Stockholder should fail to submit a Form or Form(s) of Election
with such designation with respect to any or all of the Shares, the
Stockholder authorizes Parent and the Exchange Agent to submit a
Form or Form(s) of Election with such designation in the name and
on behalf of the Stockholder.
(b)
The Stockholder agrees that from the Effective Time and continuing
for a period of six (6) months following the Effective Time (the
“ Lock-Up Expiration Date ”), such Stockholder
shall not, directly or indirectly, (i) Transfer any of the Acquired
Parent Shares, or enter into any contract, option or other
agreement to Transfer any of the Acquired Parent Shares,
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or otherwise cause or permit the
Transfer of any Acquired Parent Shares or (ii) request that the
Company register the Transfer of any certificate
