VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 23, 1998 (this "Voting
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, Netscape Communications Corporation, a Delaware corporation
("Company"), Acquiror and Apollo Acquisition Corp., a Delaware corporation and a
newly-formed wholly owned direct subsidiary of Acquiror ("Newco"), have
contemporaneously with the execution of this Voting Agreement, entered into an
Agreement and Plan of Merger dated as of November 23, 1998 (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;
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 Voting Agreement;
and
WHEREAS, as of the date hereof, the Stockholders own of record and
beneficially the shares of common stock, par value $0.0001 per share, of the
Company (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;
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
Section 1.1 Voting Agreement. Each Stockholder hereby agrees
to (a) appear, or cause the holder of record on any applicable record date (the
"Record Holder") to appear for the purpose of obtaining a quorum at any annual
or special meeting of stockholders of the Company and at any adjournment thereof
at which matters relating to the Merger, Merger Agreement or any transaction
contemplated thereby are considered and (b) vote, or cause the Record Holder to
vote, in person or by proxy all of the shares of the Company Common Stock owned
by Stockholder, or with respect to which such Stockholder has or shares 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.
Section 1.2 No Ownership Interest. Nothing contained in this
Voting 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 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.
Section 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 $.01 per share, of Acquiror ("Acquiror Common
Stock"), contemplated by the Merger Agreement.
Section 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.
Section 1.5 No Inconsistent Agreements. Each Stockholder
hereby covenants and agrees that, except as contemplated by this Voting
Agreement and the Merger Agreement, the Stockholder (a) has not entered, and
shall not enter at any time while this Voting Agreement remains in effect, into
any voting agreement and (b) has not granted, and shall not grant at any time
while this Voting Agreement remains in effect, a proxy or power of attorney, in
either case which is inconsistent with this Agreement.
ARTICLE II
Transfer
Section 2.1 Transfer of Title.
(a) Each Stockholder hereby covenants and agrees
that such Stockholder will not, prior to the
termination of this Voting Agreement, either
directly or indirectly, offer or otherwise agree
to sell, assign, pledge, hypothecate, transfer,
exchange, or dispose of any Shares or options to
purchase Company Common Stock ("Options") or any
other securities or 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 to be bound by this Voting
Agreement as if a party hereto.
(b) The Stockholder hereby agrees and consents to
the entry of stop transfer instructions by the
Company against the transfer of any Shares
consistent with the terms of Section 2.1(a)
hereof.
ARTICLE III
Representations and Warranties
of the Stockholders
Each Stockholder hereby severally and not jointly represents and
warrants to Acquiror as follows:
Section 3.1 Authority Relative to This Agreement. Such
Stockholder is competent to execute and deliver this Voting Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Voting 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.
Section 3.2 No Conflict. The execution and delivery of this
Voting Agreement by such Stockholder does not, and the performance of this
Voting Agreement by such Stockholder shall 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 or Options 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 or the Shares or Options are bound or affected.
Section 3.3 Title to the Shares. The Shares and Options held
by such Stockholder are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, 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.
ARTICLE IV
Miscellaneous
Section 4.1 No Solicitation. From the date hereof until the
Effective Time or, if earlier, the termination of the Merger Agreement, the
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.
Section 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 Voting Agreement prior to such termination.
Section 4.3 Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Voting 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 Voting
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.
Section 4.4 Successors and Affiliates. This Voting 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 any securities or rights convertible into or exchangeable for
shares of Company Common Stock, by operation of law or otherwise, such Shares
shall be held subject to all of the terms and provisions of this Voting
Agreement. Without limiting the foregoing, each Stockholder specifically agrees
that the obligations of such Stockholder hereunder shall not be terminated by
operation of law, whether by death or incapacity of the Stockholder or
otherwise.
Section 4.5 Entire Agreement. This Voting Agreement together
with the Affiliates Agreements, in the form attached as Annex C 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.
Section 4.6 Captions and Counterparts. The captions in this
Voting Agreement are for convenience only and shall not be considered a part of
or affect the construction or interpretation of any provision of this Voting
Agreement. This Voting Agreement may be executed in several counterparts, each
of which shall constitute one and the same instrument.
Section 4.7 Amendment. This Voting Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
Section 4.8 Waivers. Except as provided in this Voting
Agreement, no action taken pursuant to this Voting 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 Voting
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.
Section 4.9 Severability. If any term or other provision of
this Voting Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of this
Voting 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 Voting 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 Voting Agreement
remain as originally contemplated to the fullest extent possible.
Section 4.10 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made and shall be effective upon receipt, if delivered
personally, upon receipt of a transmission confirmation if sent by facsimile
(with a confirming copy sent by overnight courier) and on the next business day
if sent by Federal Express, United Parcel Service, Express Mail or other
reputable overnight courier to the parties at the following addresses (or at
such other address for a party as shall be specified by notice):
If to a Stockholder:
At the address set forth opposite such Stockholder's
name on Schedule A hereto
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Xxx Xxxxxxxxxxx
and Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Acquiror or Newco:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Case
President & CEO
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 4.11 Governing Law. This Voting 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.
Section 4.12 Definitions. Capitalized terms used and not
defined herein shall have the meaning set forth in the Merger Agreement.
Section 4.13 Obligations of Stockholders. 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.
Section 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.
Section 4.15 Interpretation. The parties have participated
jointly in the negotiation of this Voting Agreement. In the event that an
ambiguity or question of intent or interpretation arises, this Voting 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 Voting Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
AMERICA ONLINE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
/s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxx
Signature Page to Voting Agreement
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
XXXX X. XXXXXXXXXX LIVING TRUST
DTD 02/01/96
By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, Trustee
ANDREESSEN 1996 CHARITABLE
REMAINDER TRUST DTD 2/21/96
By:
Xxxxxxx X. Xxxx, Co-Trustee
By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, Co-Trustee
ANDREESSEN 1996 CHARITABLE
REMAINDER TRUST DTD 2/21/96
By:
Xxxxxxx X. Xxxx, Co-Trustee
By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, Co-Trustee
MONACO PARTNERS LP
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
XXXXX VENTURES INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
Signature Page to Voting Agreement
XXXX XXXXXXXXXX 1996 LIVING
TRUST UTA DTD 2/1/96
By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, Trustee
Signature Page to Voting Agreement
Schedule A
Beneficial Owner Stockholder Shares of Common
Stock of the Company,
par value $0.0001 per share
Xxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxxxx 360,000
0000 Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxx X. Xxxxxxxxxx Xxxx X. Xxxxxxxxxx Living 180,000
00000 Xxxx Xxxxxx, Xxxxx 000 Trust DTD 00-00-00
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Xxxx X. Xxxxxxxxxx Xxxx Xxxxxxxxxx 6,359
00000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Xxxx X. Xxxxxxxxxx Andreessen 1996 Charitable 1,101
00000 Xxxx Xxxxxx, Xxxxx 000 Remainder Trust DTD 2/21/96
Xxx Xxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxx X. Xxxx/Xx-Xxxxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxxxx 0000 Charitable 8,937
00000 Xxxx Xxxxxx, Xxxxx 000 Remainder Trust-Dated 2/1/96
Xxx Xxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxx X. Xxxx/Co-Trustee
Xxxx X. Xxxxxxxxxx Xxxx Xxxxxxxxxx 1996 Living Trust UTA 188,754
00000 Xxxx Xxxxxx, Xxxxx 000 DTD 2/1/96
Xxx Xxxxx, Xxxxxxxxxx 00000-0000 (Shares held at Xxxxxx Xxxxxxx)
Xxxx Xxxxxxxxxx and
Xxxxxxx Xxxx Trustees
Xxxxx X. Xxxxx Monaco Partners LP 11,699,643
00 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Xxxxx X. Xxxxx Xxxxx Ventures Inc. 900,000
00 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Xxxxx X. Xxxxx Xxxxx X. Xxxxx 21,114
00 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Xxxxx X. Xxxxx Xxxxxx Xxxxxxx 1,808,379
00 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxx 46,259
0000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxx 3,560,000
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxxx 1,452,000
0000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxxx X. Xxxxxxxxx Xxxx Xxxxxxxxx 40,000
0000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
