EXHIBIT 4.1
STOCKHOLDERS AGREEMENT, dated as of February 1,
1999 (this "Agreement"), by and among AMERICA ONLINE,
INC., a Delaware corporation ("Acquiror"), and each of
the parties identified on Schedule A hereto
(individually a "Stockholder" and collectively the
"Stockholders").
WHEREAS, MovieFone, Inc., a Delaware corporation ("Company"),
Acquiror and MF Acquisition Corporation, a Delaware corporation and a newly
formed wholly owned direct subsidiary of Acquiror "Newco"), have
contemporaneously with the execution of this Agreement, entered into an
Agreement and Plan of Merger dated as of February 1, 1999 (the "Merger
Agreement") which provides, among other things, that Newco shall be merged
(the "Merger") with and into the Company pursuant to the terms and
conditions thereof; and
WHEREAS, as an essential condition and inducement to Acquiror to
enter into the Merger Agreement and in consideration therefor, the
undersigned Stockholders and the Acquiror have agreed to enter into this
Agreement; and
WHEREAS, as of the date hereof, the Stockholders own of record
the shares of Class A common stock, par value $0.01 per share, or Class B
common stock, par value $0.01 per share, of the Company (collectively, the
"Company Common Stock") set forth opposite their respective names on
Schedule A hereto and desire to enter into this Agreement with respect to
such shares of Company Common Stock; and
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Merger Agreement, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
1.1 STOCKHOLDERS AGREEMENT. Each Stockholder hereby agrees to
(a) appear, in person or by proxy, or cause the holder of record on any
applicable record date (the "Record Holder") to appear, in person or by
proxy, for the purpose of obtaining a quorum at any annual or special
meeting of stockholders of the Company and at any adjournment thereof,
including those at which matters relating to the Merger, the Merger
Agreement or any transaction contemplated thereby are considered, and
(b) vote, or cause the Record Holder to vote, in person or by proxy, or to
the extent written consents are solicited, execute and deliver written
consents with respect to, all of the shares of the Company Common Stock
owned by Stockholder, or with respect to which such Stockholder has voting
power or control, and all of the shares of Company Common Stock which
shall, or with respect to which voting power or control shall, hereafter be
acquired by such Stockholder (collectively, the "Shares") in favor of the
Merger, the Merger Agreement and the transactions contemplated by the
Merger Agreement.
1.2 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Acquiror 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 Acquiror 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 the performance of the
Stockholders' duties or responsibilities as stockholders of the Company.
1.3 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 common stock, par value $0.01 per share, of Acquiror ("Acquiror
Common Stock"), contemplated by the Merger Agreement.
1.4 DOCUMENTS DELIVERED. Each Stockholder acknowledges receipt
of copies of the following documents:
(a) the Merger Agreement and all Annexes thereto;
(b) the Option Agreement
(c) Acquiror's Annual Report on Form 10-K for the fiscal
year ended June 30, 1998;
(d) Acquiror's Proxy Statement dated September 28, 1998;
and
(e) each report filed with the Securities and Exchange
Commission by the Acquiror on Forms 8-K and 10-Q since June 30, 1998.
Each Stockholder also acknowledges that he possesses the information
relating to the Company which he deems relevant to his investment in the
Acquiror Common Stock should the Merger be consummated.
1.5 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
TRANSFER
2.1 TRANSFER OF TITLE. (a) Each Stockholder hereby covenants
and agrees that such Stockholder will not, prior to the termination of this
Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign, pledge, hypothecate, transfer, exchange, or voluntarily dispose of
any Shares, options to purchase Company Common Stock ("Options") or any
other securities or rights ("Rights") convertible into or exchangeable for
shares of Company Common Stock, owned either directly or indirectly by such
Stockholder or with respect to which such Stockholder has the power of
disposition, whether now or hereafter acquired, without the prior written
consent of Acquiror (provided nothing contained herein will be deemed to
restrict the exercise of Options), unless the Person to whom Shares or
Options have been sold, assigned, pledged, hypothecated, transferred,
exchanged or disposed agrees in writing in advance to be bound by this
Agreement as if a party hereto.
(b) Each Stockholder hereby agrees and consents to the
entry of stop transfer instructions by the Company against the transfer of
any Shares in a manner not consistent with the terms of Section 2.1(a)
hereof and acknowledges and agrees that each certificate representing any
Shares shall bear the following legend:
This certificate and the shares represented hereby are
subject to certain limitations on transfer and certain
voting restrictions set forth in the Stockholders
Agreement dated as of February 1, 1999 by and among
America Online, Inc. and the parties identified in
Schedule A thereto (a copy of which is available for
inspection at the offices of MovieFone, Inc.), and any
transferee of this certificate or any of the shares
represented hereby shall be bound by the provisions
thereof.
As soon as practicable after the execution and delivery of this Agreement
(and in no event more than three (3) Business Days thereafter), each
Stockholder shall surrender each certificate representing any of such
Shares to the Company in exchange for one or more certificates representing
such Shares bearing the foregoing legend.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby severally and not jointly represents and
warrants to Acquiror, as follows:
3.1 AUTHORITY RELATIVE TO AGREEMENT. In the case of any
Stockholder that is a corporation, partnership or trust, such Stockholder
is duly organized, formed or created under the laws of the jurisdiction of
its organization, formation or creation. Such Stockholder, in the case of
any individual, is competent and, in the case of any Stockholder that is a
corporation, partnership or trust has the power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. In the case of any
Stockholder that is a corporation, partnership or trust, all necessary
corporate, partnership or trust action on behalf of such Stockholder has
been taken to authorize this Agreement. This Agreement has been duly and
validly executed and delivered by such Stockholder and, assuming the due
authorization, execution and delivery by Acquiror, constitutes a legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
3.2 NO CONFLICT. The execution and delivery of this Agreement
by such Stockholder do not, and the performance of this Agreement by such
Stockholder will not, result in any breach of or constitute a default (or
an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or encumbrance on
any of the Shares, Options or Rights pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which
such Stockholder is bound or to which the Shares, Options or Rights are
subject or by which they are affected and in the case of any Stockholder
that is a corporation, partnership or trust, the applicable organizational
documents or trust agreement.
3.3 TITLE TO THE SHARES. The Shares, Options and Rights held by
such Stockholder are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements (except that,
in the case of any Stockholder that is a trust, the Shares, Options or
Rights held by such Stockholder are held for the benefit of the
beneficiaries of the applicable trust pursuant to the terms of the
applicable trust agreement), limitations on such Stockholder's voting
rights, charges and other encumbrances of any nature whatsoever, and such
Stockholder has not appointed or granted any proxy, which appointment or
grant remains effective, with respect to the Shares, Options or Rights.
ARTICLE IV
MISCELLANEOUS
4.1 NO SOLICITATION. From the date hereof until the Effective
Time or, if earlier, the termination of the Merger Agreement, each
Stockholder shall not (whether directly or indirectly through advisors,
agents or other intermediaries) (a) solicit, initiate or encourage any
Acquisition Proposal or (b) engage in discussions or negotiations with, or
disclose any non-public information relating to the Company or its
Subsidiaries to any Person that has made an Acquisition Proposal or has
advised the Stockholder, or to his Knowledge, any other Stockholder or the
Company, that such Person is interested in making an Acquisition Proposal.
Notwithstanding the foregoing, nothing contained in this Section 4.1 shall
restrict any Stockholder from fulfilling its legal or fiduciary duties
arising by reason of such Stockholder's capacity as an officer or director
of the Company or as a trustee of a trust, in each case, acting in such
capacity; provided, however, that in no event shall such Stockholder fail
to perform its obligations under Section 1.1 of this Agreement.
4.2 TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Merger Agreement in
accordance with its terms or (b) the Effective Time. Upon such
termination, no party shall have any further obligations or liabilities
hereunder, provided that no such termination shall relieve any party from
liability for any breach of this Agreement prior to such termination.
4.3 ENFORCEMENT OF AGREEMENT. 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 its specified 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 specific performance of the terms and provisions hereof in
addition to any other remedy to which they are entitled at law or in
equity.
4.4 SUCCESSORS AND AFFILIATES. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives and permitted assigns. If any
Stockholder shall at any time hereafter acquire ownership of, or voting
power with respect to, any additional Shares in any manner, whether by the
exercise of any Options or Rights, by operation of law or otherwise, such
Shares shall be held subject to all of the terms and provisions of this
Agreement. Without limiting the foregoing, each Stockholder specifically
agrees that the obligations of such Stockholder hereunder shall not be
terminated by death or incapacity of the Stockholder.
4.5 ENTIRE AGREEMENT. This Agreement, together with the
Affiliate Agreements, in the form attached as Exhibit H to the Merger
Agreement, if and to the extent entered into by each of the Stockholders
and Acquiror, constitutes the entire agreement among Acquiror and the
Stockholders with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, among Acquiror
and the Stockholders with respect to the subject matter hereof.
4.6 CAPTIONS AND COUNTERPARTS. The captions in this Agreement
are for convenience only and shall not be considered a part of or affect
the construction or interpretation of any provision of this Agreement.
This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument.
4.7 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
4.8 WAIVERS. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including without limitation any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained in this
Agreement. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a wavier of any prior or
subsequent breach of the same or any other provision hereunder.
4.9 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. 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 to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent
possible.
4.10 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
be registered or certified mail, postage prepaid, return receipt requested,
or by electronic mail, with a copy thereof to be delivered by mail (as
aforesaid) within 24 hours of such electronic mail, or by telecopier, with
confirmation as provided above addressed as follows:
(a) If to a Stockholder:
At the address set forth opposite such Stockholder's
name on Schedule A hereto
(b) If to Acquiror or Newco:
America Online, Inc.
Attention:
Telecopier:
E-mail:
With a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
E-mail: Xxxxxxxxxx@xxx.xxx
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 (a) in the
case of personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the
date when sent (c) in the case of facsimile transmission or telecopier or
electronic mail, upon confirmed receipt, and (d) in the case of mailing, on
the third business day following the date on which the piece of mail
containing such communication was posted.
4.11 GOVERNING LAW; CONSENT TO JURISDICTION. (a) This Agreement
shall be governed by, and construed in accordance with, the laws of the
State of Delaware regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
(b) Each Stockholder hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of
the United States District Court of the Southern District of New York, and
any appellate court from such court, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in
this shall affect any right that Acquiror or Newco may otherwise have to
bring any action or proceeding relating to this Agreement against any
Stockholder or its properties in the courts of any jurisdiction.
(c) Each Stockholder hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of forum non conveniens to the maintenance of such
action or proceeding in any such court.
(d) Each Stockholder hereby irrevocably appoints and
designates CT Corporation System, whose address is 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, or any other person having and maintaining a place of business in
the State of New York whom the Parent or Newco may from time to time
hereafter designate (having given 30 days' notice thereof to the Acquiror
and Newco), as the true and lawful attorney and duly authorized agent for
acceptance of service of legal process from Acquiror and Newco. Without
prejudice to the foregoing, each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in
Section 4.10. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
4.12 DEFINITIONS. Capitalized terms used and not defined herein
shall have the meaning set forth in the Merger Agreement.
4.13 OBLIGATIONS OF STOCKHOLDERS. Except as provided in Article
3 and Section 4.16, the obligations of the Stockholders hereunder shall be
"several" and not "joint" or "joint and several." Without limiting the
generality of the foregoing, under no circumstances will any Stockholder
have any liability or obligation with respect to any misrepresentation or
breach of covenant of any other Stockholder.
4.14 OFFICERS AND DIRECTORS. No person who is or becomes (during
the term hereof) a director or officer of the Company makes any agreement
or understanding herein in his or her capacity as such director or officer,
and nothing herein will limit or affect, or give rise to any liability to
Stockholder by virtue of, any actions taken by any Stockholder in his or
her capacity as an officer or director of the Company in exercising its
rights under the Merger Agreement.
4.15 INTERPRETATION. The parties have participated jointly in
the negotiation of this Agreement. In the event that an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of the provisions of this Agreement.
4.16 EXPENSES. If the Merger Agreement is terminated pursuant to
Section 8.1(i) as a result of a breach by one or more parties to this
Agreement, then each party in breach of this Agreement jointly and
severally agrees to reimburse Parent, within five (5) business days of
Parent's request therefor, for all Parent Stipulated Expenses and all fees
and expenses incurred in connection with the enforcement or realization of
Acquiror's rights and remedies hereunder.
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COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY 1, 1999
IN WITNESS WHEREOF, each of the parties hereto have caused this
Stockholders Agreement to be duly executed as of the date first written
above.
AMERICA ONLINE, INC.
By: ____________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY 1, 1999
STOCKHOLDER:
TIMBER NATION TRUST #1 THE TIMBER TOP TRUST
By: ___________________________ By: _____________________________
Name: Name:
Title: Title:
THE TIMBER FALLS TRUST THE TIMBER EDGE TRUST
By: ___________________________ By: _____________________________
Name: Name:
Title: Title:
THE TIMBER ACRES TRUST
_______________________________ By: _____________________________
XXXXXX X. XXXXXXX Name:
Title:
THE TIMBER ACRES TRUST II
_______________________________ By: _____________________________
XXXXXX X. XXXXXXX Name:
Title:
_______________________________ ________________________________
XXXXXX X. XXXXXXX XXXXXX XXXXXXXX
______________________________ ________________________________
J. XXXXXXX XXXXXXXXXX XXXXXXX XXXXXXX
________________________________
XXXX XXXXXXX
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY 1, 1999
JARFAM L.P. THE JEF LIMITED PARTNERSHIP
By: AIROLG, INC., its General By: THE RAPMIL CORPORATION, its
Partner General Partner
By: ________________________ By: ________________________
Name Name
Title: Title:
FALCONWOOD FOUNDATION, INC.
By: ________________________
Name
Title:
By: ________________________
Name
Title:
By: ________________________
Name
Title:
SCHEDULE A
Number of Shares
of MovieFone, Inc.
Common Stock
Stockholder Address Beneficially Owned
----------- ------- ------------------
Falconwood Foundation 000 0xx Xxxxxx 75,000 shares of
Xxx Xxxx, XX 00000 Class A Common Stock
Facsimile: 000-000-0000
Xxxxxx Xxxxxxxx c/o MovieFone, Inc. 366,410 shares of
000 Xxxxxxx Xxxxxx Class A Common Stock
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxx X. Xxxxxxx c/o MovieFone, Inc. Zero (0) shares of
000 Xxxxxxx Xxxxxx Class X Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxxx Xxxxxxx 00 Xxxxx Xxxxx Xxxxxx, 3,990 shares of
Xxx. 0X Xxxxx X Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxx X. Xxxxxxx c/o Xxxxxxx Xxxxxxxxx 84,560 shares of
The Falconwood Group Class A Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Xxxxxx X. Xxxxxxx c/o MovieFone, Inc. 161,350 shares of
000 Xxxxxxx Xxxxxx Class A Common Stock
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
J. Xxxxxxx Xxxxxxxxxx 1875 Century Park East 166,105 shares of
Xxxxx 0000 Xxxxx X Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Xxxx Xxxxxxx c/o MovieFone, Inc. 105,280 shares of
000 Xxxxxxx Xxxxxx Class A Common Stock
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Timber Nation Trust #1 c/o Xx. Xxxxx Xxxxxxx 139,860 shares of
The Falconwood Corporation Class B Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
The Timber Edge Trust c/o Xx. Xxxxx Xxxxxxx 1,266,410 shares of
The Falconwood Corporation Class B Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
The Timber Falls Trust c/o Xx. Xxxxx Xxxxxxx 75,000 shares of
The Falconwood Corporation Class A Common Stock;
000 0xx Xxxxxx 3,434,280 shares of
Xxx Xxxx, XX 00000 Class B Common Stock
Facsimile: 000-000-0000
The Timber Acres Trust c/o Xx. Xxxxx Xxxxxxx 956,840 shares of
The Falconwood Corporation Class B Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
The Timber Acres c/o Xxxxxx Xxxxxxx 1,422,770 shares of
Trust II MovieFone, Inc. Class A Common Stock
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
The Timber Top Trust c/o Xx. Xxxxx Xxxxxxx 1,156,620 shares of
The Falconwood Corporation Class B Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
JARFAM L.P. c/o Xxxxxxx Xxxxxxxxx 197,267 shares of
The Falconwood Group Class A Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
The JEF Limited c/o Xxxxxxx Xxxxxxxxx 166,043 shares of
Partnership The Falconwood Group Class B Common Stock
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
