Exhibit 10.3
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.
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.
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.
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
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
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.
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
By: /s/ R.E. Xxxxxx, III
Name: R.E. Xxxxxx, III
Number of Existing Shares: 95,843,076
Notices
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
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
Attention: R.E. Xxxxxx, III
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
Attention:R.E. Xxxxxx, III
XXXXXX OUTDOOR, INC.
By: /s/ R.E. Xxxxxx, III
Name: R.E. Xxxxxx, III
Title: General Partner
Number of Existing Shares: 579,884
Notices
Address: Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Attention:R.E. Xxxxxx, III
