CONFORMED COPY
VOTING AGREEMENT, dated as of January 10, 2000 (this "Agreement"),
among America Online, Inc., a Delaware corporation ("America Online"), and the
stockholders of Time Warner Inc., a Delaware corporation ("Time Warner"), that
are parties hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
W I T N E S S E T H:
WHEREAS, America Online and Time Warner 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 Time Warner will engage in a business
combination in a merger of equals with America Online (the "Time Warner
Merger"); and
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of common stock, par value $0.01 per
share, of Time Warner ("Time Warner Common Stock"), as 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 Time Warner Common Stock or other voting capital stock of Time
Warner acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, such Stockholder's
"Shares");
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 that it shall,
and shall cause the holder of record on any applicable record date to, from
time to time, at the request of America Online, at any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of
stockholders of Time Warner, however called, or in connection with any written
consent of the holders of Time Warner 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 Time Warner (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 Time Warner Merger and any action required in furtherance
thereof.
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1.2 No Ownership Interest. Nothing contained in this Agreement shall
be deemed to vest in America Online 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 America Online shall have no authority to
manage, direct, superintend, restrict, regulate, govern, or administer any of
the policies or operations of Time Warner 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 Time Warner.
1.3 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 America Online 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 America Online, constitutes a valid and binding obligation of
such Stockholder, enforceable against it in accordance with its terms.
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2.2 Shares. Such Stockholder's Existing Shares are, and all of its
Shares from the date hereof through and on the Closing Date will be, owned
beneficially and of record by such Stockholder (subject to any dispositions of
Shares permitted by Section 3.1(a) hereof). As of the date hereof, such
Stockholder's Existing Shares constitute all of the shares of Time Warner
Common Stock owned of record or beneficially by such Stockholder. Such
Stockholder has or 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
Existing Shares and 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, the terms of this
Agreement and the terms of the Loan Agreement (as defined below in Section
3.1(a)).
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
(collectively, a "Transfer") or enforce or permit the execution of the
provisions of any redemption, share purchase or sale, recapitalization or
other agreement with Time Warner or enter into any contract, option or other
arrangement or understanding with respect 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 Time Warner Common Stock, any other
capital stock of Time Warner or any interest in any of the foregoing with any
Person, except to a Person who agrees in writing, in an instrument reasonably
acceptable to America Online, to be bound by this Agreement as a Stockholder
and be subject to Section 1.1; provided, however, that the Stockholders
collectively may Transfer an aggregate of up to five percent of the Existing
Shares held of record by the Stockholders collectively as of the date hereof
without compliance with this Section 3.1(a); and provided further that the
restrictions contained in this Section 3.1(a) do not apply to Existing Shares
now pledged by Stockholders to Xxxxxxx Xxxxx International Bank Limited (the
"Bank") to secure a revolving credit facility to R.E. Xxxxxx pursuant to that
certain Loan and Collateral Account Agreement dated April 4, 1996, as amended,
between the Bank and R.E. Xxxxxx (the "Loan Agreement").
(b) In the event of a stock dividend or distribution, or any change
in Time Warner Common Stock by reason of any stock dividend or distribution,
or any change in Time Warner 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 securities into which or
for which any or all of the Shares may be changed or exchanged or which are
received in such transaction.
(c) Each Stockholder covenants and agrees with the other
Stockholders and for the benefit of Time Warner (which shall be a third party
beneficiary of this Section 3.1(c)) to comply with and perform all its
obligations under this Agreement.
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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 8.1 thereof.
Nothing in this Section 4.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement.
4.2 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.
4.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the tenth
Business Day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices
hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:
(a) if to America Online to:
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx,
Senior Vice President and General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(b) if to a Stockholder, as provided on the signature page
hereof.
4.4 Counterparts. This Agreement may be executed in one or more
counterparts, 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 both
parties need not sign the same counterpart.
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4.5 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
4.6 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.7 Enforcement. 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. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled
at law or in equity.
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IN WITNESS WHEREOF, America Online 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/ Xxxxxxx X. Case
-----------------------------
Name: Xxxxxxx X. Case
Title: Chairman & Chief
Executive Officer
/s/ R.E. Xxxxxx, III
-----------------------------
R.E. Xxxxxx, III
Number of Existing Shares: 95,843,076
Notices
-------
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: R.E. Xxxxxx, III
XXXXXX PARTNERS, L.P.
By: /s/ R.E. Xxxxxx, III
-----------------------------
Name: R.E. Xxxxxx, III
Title: General Partner
Number of Existing Shares: 6,028,896
Notices
-------
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: R.E. Xxxxxx, III
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XXXXXX X. XXXXXX CHARITABLE
REMAINDER UNITRUST NO. 2
By: /s/ R.E. Xxxxxx, III
-----------------------------
Name: R.E. Xxxxxx, III
Title: Trustee
Number of Existing Shares: 2,600,998
Notices
-------
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: R.E. Xxxxxx, III
XXXXXX OUTDOOR, INC.
By: /s/ R.E. Xxxxxx, III
-----------------------------
Name: R.E. Xxxxxx, III
Title: President
Number of Existing Shares: 579,884
Notices
--------
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: R.E. Xxxxxx, III
