Exhibit A
to Agreement and Plan of Merger
STOCKHOLDERS AGREEMENT, dated as of December 21, 1999 (this
"Agreement"), among AMERICA ONLINE, INC., a Delaware corporation ("Parent"), MQ
ACQUISITION, INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and the several stockholders of XXXXXXXX.XXX, INC., a
Delaware corporation (the "Company"), that are parties hereto (each, a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Merger Sub and the Company are, concurrently
with the execution and delivery of this Agreement, entering into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement;"
capitalized terms used without definition herein having the meanings assigned to
them in the Merger Agreement), pursuant to which Merger Sub will merge with and
into the Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record
and beneficial owner of the number of shares of Company Common Stock set forth
on the signature page hereof beneath such Stockholder's name (with respect to
each Stockholder, such Stockholder's "Existing Shares" and, together with any
shares of Company Common Stock acquired after the date hereof, whether upon the
exercise of warrants, options, conversion of convertible securities or
otherwise, such Stockholder's "Shares") and the record and beneficial owner of
options or warrants to purchase the number of shares of Company Common Stock set
forth on the signature page hereof beneath such Stockholder's name;
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent and Merger Sub have required that the Stockholders
agree, and the Stockholders have agreed, to enter into this Agreement;
WHEREAS, among other things, the Stockholders, Parent and
Merger Sub desire to set forth their agreement with respect to the voting of the
Shares in connection with the Merger, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees, severally and
not jointly, that it shall, and shall cause the holder of record on any
applicable record date to, from time to time, at the request of Parent, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of stockholders of the Company, however called, or in connection with
any written consent of the holders of Company Common Stock, (a) if a meeting is
held, appear at such meeting or otherwise cause the Shares to be counted as
present thereat for purposes of establishing a quorum, and (b) vote or consent
(or cause to be voted or consented), in person or by proxy, all Shares, and any
other voting securities of the Company (whether acquired heretofore or
hereafter) that are beneficially owned or held of record by such Stockholder or
as to which such Stockholder has, directly or indirectly, the right to vote or
direct the voting, in favor of the approval and adoption of the Merger
Agreement, the Merger and any action required in furtherance thereof.
1.2 Grant of Proxy. In furtherance and not in limitation of the
foregoing, each Stockholder hereby grants to, and appoints, Parent and each of
J. Xxxxxxx Xxxxx and Xxxx X. Xxxxxxxxx in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
officer of Parent, and any other designee of Parent, each of them individually,
its irrevocable proxy and attorney-in-fact (with full power of substitution and
resubstitution) to vote the Shares as indicated in this Article I. Each
Stockholder intends this proxy to be irrevocable and coupled with an interest
and will take such further action and execute such other instruments as may be
necessary to effectuate the intent of this proxy. Each Stockholder hereby
revokes any and all previous proxies with respect to such Stockholder's Shares
or any other voting securities of the Company that relate to the approval of the
Merger Agreement.
1.3 No Ownership Interest. Nothing contained in this Agreement shall
be deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights, ownership and economic
benefits of and relating to the Shares shall remain vested in and belong to the
Stockholders, and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
the Company or exercise any power or authority to direct the Stockholders in the
voting of any of the Shares, except as otherwise provided herein, or in the
performance of the Stockholders' duties or responsibilities as stockholders of
the Company.
1.4 Evaluation of Investment. Each Stockholder, by reason of its
knowledge and experience in financial and business matters, believes itself
capable of evaluating the merits and risks of the investment in shares of Parent
Common Stock contemplated by the Merger Agreement.
1.5 Documents Delivered. Each Stockholder acknowledges receipt of
copies of the following documents: (a) the Merger Agreement and all exhibits and
schedules thereto, (b) the Option Agreement, (c) the Distribution Agreement,
dated as of the date hereof, between Parent and the Company, (d) Parent's Annual
Report on Form 10-K for the fiscal year ended June 30, 1999, (e) Parent's Proxy
Statement dated September 22, 1999, and (f) each report filed with the SEC by
Parent on Forms 8-K and 10-Q since June 30, 1999. Each Stockholder also
acknowledges that such Stockholder possesses all the information relating to the
Company which such Stockholder deems relevant or material to such Stockholder's
investment in Parent Common Stock should the Merger be consummated and its
entering into this Agreement.
1.6 No Inconsistent Agreements. Each Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and
warrants to Parent and Merger Sub as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such
Stockholder has full power and authority to execute and deliver this Agreement,
to perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Stockholder of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by such
Stockholder and no other actions or proceedings on the part of such Stockholder
are necessary to authorize the execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Parent and
Merger Sub, constitutes a valid and binding obligation of such Stockholder,
enforceable against it in accordance with its terms.
2.2 Consents and Approvals; No Violations. Except for filings
required under applicable federal and state securities laws and regulations and
the HSR Act, none of the execution, delivery or performance of this Agreement by
such Stockholder nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the provisions hereof will (i) require
any filing with, or Approval of, any Governmental Authority, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other instrument or
obligation to which such Stockholder is a party or by which it or any of its
properties or assets may be bound or (iii) violate any Order or Law applicable
to it or any of its properties or assets.
2.3 Shares. Such Stockholder's Existing Shares are, and all of its
Shares on the Closing Date will be, owned beneficially and of record by such
Stockholder. As of the date hereof, such Stockholder's Existing Shares
constitute all of the shares of Company Common Stock owned of record or
beneficially by such Stockholder. All of such Stockholder's Existing Shares are
issued and outstanding, and, except as set forth on the signature pages hereto,
such Stockholder does not own, of record or beneficially, any warrants, options
or other rights to acquire any shares of Company Common Stock or any other
capital stock of the Company. Such Stockholder has sole voting power, sole power
of disposition, sole power to issue instructions with respect to the matters set
forth in Article I hereof, and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of such Stockholder's
Existing Shares and will have sole voting power, sole power of disposition, sole
power to issue instructions with respect to the matters set forth in Article I
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of such Stockholder's Shares on the
Closing Date, with no limitations, qualifications or restrictions on such
rights, subject to applicable federal securities laws and the terms of this
Agreement. Such Stockholder has good and marketable title to its Existing Shares
and at all times during the term hereof and on the Closing Date will have good
and marketable title to its Shares, free and clear of all Liens, and, upon
delivery thereof to Merger Sub against delivery of the consideration therefor
pursuant to the Merger Agreement, good and marketable title thereto, free and
clear of all Liens (other than any arising as a result of actions taken or
omitted by Merger Sub), will pass to Merger Sub.
2.4 No Finder's Fees. Except as previously disclosed to Parent in
writing, no broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby or the Merger
based upon arrangements made by or on behalf of such Stockholder.
2.5 No Group. Each Stockholder is acting individually and not as
part of a "group" as defined in the Exchange Act.
ARTICLE III
OTHER COVENANTS
3.1 Further Agreements of Stockholders.
(a) Each Stockholder, severally and not jointly, hereby agrees,
while this Agreement is in effect, and except as contemplated hereby, not to
sell, transfer, pledge, encumber, assign or otherwise dispose of, enforce or
permit the execution of the provisions of any redemption, share purchase or
sale, recapitalization or other agreement with the Company or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, pledge, encumbrance, assignment
or other disposition of, any of its Existing Shares, any Shares acquired after
the date hereof, any securities exercisable for or convertible into Company
Common Stock or any interest in any of the foregoing, except for sales completed
earlier than 30 days prior to the Effective Time.
(b) Each Stockholder shall not request that the Company or its
transfer agent register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such Stockholder's
Shares, and hereby consents to the entry of stop transfer instructions by the
Company of any transfer of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement.
(c) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged. Each Stockholder
shall be entitled to receive any cash dividend paid by the Company during the
term of this Agreement until the Shares are canceled in the Merger or purchased
hereunder.
(d) Each Stockholder shall not, nor shall it authorize or permit
any Affiliate, director, officer, employee, or any investment banker, attorney
or other advisor, agent or representative of, such Stockholder (collectively,
the "Representatives") to, directly or indirectly, (i) solicit, facilitate,
initiate or encourage, or take any action to solicit, facilitate, initiate or
encourage, any inquiries or communications or the making of any proposal or
offer that constitutes or may constitute an Acquisition Proposal, or (ii)
participate or engage in any discussions or negotiations with, or provide any
information to, or take any action with the intent to facilitate the efforts of,
any Person concerning any possible Acquisition Proposal or any inquiry or
communication which might be reasonably be expected to result in an Acquisition
Proposal. From and after the date hereof, each Stockholder shall immediately
cease and terminate, and shall cause its Representatives to immediately cease
and cause to be terminated, all existing discussion or negotiations with any
Persons conducted heretofore with respect to, or that could reasonably be
expected to lead to, an Acquisition Proposal.
(e) Each Stockholder covenants and agrees with the other
Stockholders and for the benefit of the Company (which shall be a third party
beneficiary of this Section 3.1(e)) to comply with and perform all its
obligations under this Agreement.
(f) From and after the Effective Time, each of the Stockholders
waives, agrees not to enforce and releases the Company from any obligation if
the Company or its Affiliates (including Parent) under Sections 5.1 through 5.12
of the Amended and Restated Rights Agreement dated as of July 17, 1997, among
the Company and the Stockholders and certain other parties.
(g) Each Stockholder which holds any option to purchase Company
Common Stock hereby consents to the treatment of such option as set forth in
Section 1.8 and 5.5 of the Merger Agreement.
3.2 Further Agreements of Parent. Parent hereby agrees to use
reasonable best efforts to cause the shares of Company Common Stock delivered to
the Stockholders pursuant to the Merger Agreement to be registered under the
Securities Act in connection with such delivery.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. This Agreement shall terminate and no party shall
have any rights or duties hereunder upon the earlier of (a) the Effective Time
or (b) termination of the Merger Agreement pursuant to Section 7.1 thereof.
Nothing in this Section 4.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement.
4.2 Several Obligations; Capacity.
(a) The representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several and not
joint.
(b) The obligations of the Stockholders hereunder are several
and not joint and the covenants and agreements of the Stockholders herein are
made only in their capacity as stockholders of the Company and not as directors.
4.3 Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate the transactions contemplated by this
Agreement.
4.4 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by nationally recognized overnight courier or by registered
or certified mail, postage prepaid, return receipt requested, or by electronic
mail, with a copy thereof to be delivered or sent as provided above or by
facsimile or telecopier, as follows:
(a) If to Parent or Merger Sub:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, President - Business Affairs
With copies to:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, General Counsel; and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx III, Esq.
(b) If to any of the Stockholders, to it at the address set
forth under its name on the signature pages hereto.
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such notices
or communications shall be deemed to be received (i) in the case of personal
delivery, nationally recognized overnight courier or registered or certified
mail, on the date of such delivery and (ii) in the case of facsimile or
telecopier or electronic mail, upon confirmed receipt.
4.5 Interpretation. When a reference is made in this Agreement to
Sections, subsections, Schedules or Exhibits, such reference shall be to a
Section, subsection, Schedule or Exhibit to this Agreement unless otherwise
indicated. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation."
The word "herein" and similar references mean, except where a specific Section
or Article reference is expressly indicated, the entire Agreement rather than
any specific Section or Article. The table of contents and the headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
4.6 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
4.7 Entire Agreement; No Third Party Beneficiaries. This Agreement,
the Merger Agreement and the other Related Agreements constitute the entire
agreement and supersedes all prior agreements and understandings (other than the
Confidentiality Agreement), both written and oral, among the parties with
respect to the subject matter hereof and thereof, and is not intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
4.8 Amendments; Assignment. This Agreement may not be amended except
by written agreement by all the parties. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by any
of the parties without the prior written consent of the other parties, and any
purported assignment without such consent shall be void; provided that Parent
may assign its rights and obligations hereunder to any direct or indirect wholly
owned subsidiary of Parent without such consent.
4.9 Failure or Indulgence Not 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. 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.
4.10 Governing Law; Enforcement. This Agreement and the rights and
duties of the parties hereunder shall be governed by, and construed in
accordance with, the Law of the State of New York. The parties 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 an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in the Federal
District Court for the Southern District of New York, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto, (a) consents to submit itself to the personal
jurisdiction of the Federal District Court for the Southern District of New York
in the event any dispute arises out of this Agreement or any transaction
contemplated hereby, (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,
(c) agrees that it will not bring any action relating to this Agreement or any
transaction contemplated hereby in any court other than the Federal District
Court for the Southern District of New York and (d) waives any right to trial by
jury with respect to any action related to or arising out of this Agreement or
any transaction contemplated hereby.
4.11 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, Parent, Merger Sub and each of the Stockholders
have caused this Agreement to be signed by their respective officers or other
authorized person thereunto duly authorized as of the date first written above.
AMERICA ONLINE, INC.
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: President - Business Affairs
MQ ACQUISITION, INC.
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
TRIDENT CAPITAL PARTNERS FUND-1, L.P.
By: Trident Capital, L.P.
its General Partner
By: Trident Capital, Inc.
its General Partner
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. XxXxxxxxx
Title: Managing Director
Number of Existing Shares: 9,332,047
Shares subject to options or warrants: 352,195
Notices
Address: c/o Trident Capital
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx XxXxxxxxx/
Xxxxx Xxxx
TRIDENT CAPITAL PARTNERS FUND-1, C.V.
By: Trident Capital, L.P.
its General Partner
By: Trident Capital, Inc.
its General Partner
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. XxXxxxxxx
Title: Managing Director
Number of Existing Shares: 1,846,062
Shares subject to options or warrants: 69,669
Notices
Address: c/o Trident Capital
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx XxXxxxxxx/
Xxxxx Xxxx
HIGHLAND CAPITAL PARTNERS III
LIMITED PARTNERSHIP,
By: Highland Management Partners III
Limited Partnership,
its General Partner
By: /s/ XXXXXX NOVA
Name: Xxxxxx Nova
Title: General Partner
Number of Existing Shares: 6,355,823
Shares subject to options or warrants: 214,842
Notices
Address: Highland Capital Partners, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Nova
HIGHLAND ENTREPRENEURS' FUND III, L.P.,
By: HEP III, LLC, its General Partner
By: /s/ XXXXXX NOVA
Name: Xxxxxx Nova
Title: Member
Number of Existing Shares: 264,826
Shares subject to options or warrants: 8,951
Notices
Address: Highland Capital Partners, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Nova
NATIONAL GEOGRAPHIC HOLDINGS, INC.
By: /s/ C. XXXXXXX XXXXX
Name: C. Xxxxxxx Xxxxx
Title: CEO
Number of Existing Shares: 0
Shares subject to options or warrants: 899,018
Notices
Address: National Geographic Holdings, Inc.
0000 00xx Xxxxxx XX
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: C. Xxxxxxx Xxxxx
XXXXXX PRESIDIO CAPITAL II, L.P.
By: /s/ XXXXX XXX XXXXXXXXX
Name: Xxxxx xxx Xxxxxxxxx
Title: General Partner
Number of Existing Shares: 6,620,652
Shares subject to options or warrants: 223,827
Notices
Address: Weston Presidio Capital
Xxx Xxxxxxx Xx.
00xx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx xxx Xxxxxxxxx
/s/ XXXXXXX X. XXXXXXXX
Xxxxxxx X. Xxxxxxxx
Number of Existing Shares: 310,542
Shares subject to options or warrants: 1,944,000
Notices
Address: c/o XxxXxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Number of Existing Shares: 288,091
Shares subject to options or warrants: 515,675
Notices
Address: c/o XxxXxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx
