VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
of May 12, 1999, by and among Network Computer, Inc., a Delaware corporation
(the "Company"), Oracle Corporation, a Delaware corporation ("Oracle") and
Comcast Technology, Inc., a Pennsylvania corporation, Xxx Communications, Inc.,
a Delaware corporation and MediaOne Interactive Services, Inc., a Delaware
corporation (collectively referred to hereinafter as, the "Network Operators").
The Company, Oracle and the Network Operators are individually each referred to
herein as a "Party" and are collectively referred to herein as the "Parties."
The Board of Directors of the Company is referred to herein as the "Board."
WITNESSETH:
WHEREAS, the Network Operators, among others, are parties to that
certain Series E Preferred Stock Purchase Agreement, of even date herewith (the
"Purchase Agreement");
WHEREAS, Oracle and the Network Operators, among others, are parties
to that certain Put/Call and Voting Agreement, dated August 11, 1997, as amended
November 12, 1997 and on the date hereof (the "PCV Agreement");
WHEREAS, Section 5.1 of the PCV Agreement provides that one (1)
designee to the Board shall be a person with relevant industry experience (the
"Industry Director") who is reasonably acceptable to the other members of the
Board, including four (4) designees of Oracle; and
WHEREAS, to induce the Network Operators to enter into the Purchase
Agreement and to purchase shares of Series E Preferred Stock thereunder, the
Company and Oracle desire to enter into this Agreement with the Network
Operators.
NOW, THEREFORE, in consideration of the foregoing premises and certain
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. BOARD OF DIRECTORS.
(a) From the date hereof and until the earlier of the date of
the sale of the Company's Common Stock in a firm commitment underwritten public
offering pursuant to a registration statement under the Securities Act of 1933,
as amended, with net proceeds of greater than $20,000,000 and a price to the
public of at least $2.00 per share (as adjusted for stock splits, stock
dividends and similar event) (the "Offering Date") and the date that this
Agreement terminates pursuant to Section 2 below, Oracle agrees to direct each
of its designees to the Board to appoint to the Industry Director seat a
designee agreed upon by the Network Operators, provided that such designee is
reasonably acceptable to the Company's management (the "Network Operator
Designee"). In addition, (i) the Company agrees to direct its Chief Executive
Officer to vote in favor of the election of the Network Operator Designee to the
Industry Director seat and (ii) Oracle and the Company agree to use its best
efforts to ensure that the director designated pursuant to Section 5.1(c) of the
PCV Agreement votes in favor of the election of the Network Operator Designee to
the Industry Director seat. Furthermore, each of the Network Operators agrees
to vote all of the voting securities now or hereafter owned by them at any
regular or special meeting of stockholders (or by written consent) called for
the purpose of electing members of the Board, so as to elect members to the
Board as described in Section 5.1 of the PCV Agreement, including the election
of the four (4) designees of Oracle.
(b) From the Offering Date until the date that this Agreement
terminates pursuant to Section 2 below, Oracle and the Network Operators shall
vote at any regular or special meeting of stockholders such number of shares of
Common Stock then owned by them (or as to which they then have voting power) as
may be necessary to elect one (1) Board designee of Oracle and one (1) Board
designee agreed upon by the Network Operators.
(c) Should the provisions of this Section 1 be construed to
constitute the granting of proxies, such proxies shall be deemed coupled with an
interest and are irrevocable for the term of this Agreement. It is agreed and
understood that monetary damages would not adequately compensate an injured
party for the breach of this Section 1 by any Party, that this Section 1 shall
be specifically enforceable, and that any breach or threatened breach of this
Section 1 shall be the proper subject of a temporary or permanent injunction or
restraining order. Further, each party hereto waives any claim or defense that
there is an adequate remedy at law for such breach or threatened breach.
2. TERMINATION. This Agreement shall terminate in its entirety and
be of no further force or effect upon the earlier to occur of:
(i) a "change of control" of the Company which has been
consented to in writing by Oracle (a "change of control" shall mean a sale of
all or substantially all of the assets of the Company or any transaction
(including a merger) after which the holders of all of the Company's capital
stock (on a fully-diluted basis) immediately prior to such transaction own 50%
or less of the capital stock of the Company after such transaction.); or
(ii) the date that each of the Network Operators and their
affiliates (as such term is defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended) own less than 50% of the of the
Company's Common Stock issued or issuable upon conversion of the Company's
Series E Preferred Stock (as adjusted for stock splits, stock dividends and
similar events) originally issued to each such Network Operator on or about May
12, 1999 in the Company's Series E Preferred Stock financing; or
(iii) the later of (1) the date of termination of the PCV
Agreement or (2) three (3) years from the Offering Date.
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3. COVENANTS OF THE COMPANY. The Company hereby agrees that it
will:
(a) provide the Network Operator Board designee with written
notice at least five (5) business days prior to any Board meeting at which the
Board is to consider (i) waiving or otherwise avoiding the anti-dilution
protection provisions contained in Section IV(4)(d)(ii) of the Company's
Certificate of Incorporation by obtaining the approval of all members of the
Board present at such meeting or (ii) any other action that, pursuant to the
Company's Certificate of Incorporation or any contract or agreement, requires
the approval of all members of the Company's Board present at such meeting; and
(b) within thirty (30) days of the date hereof, create a three
(3) member advisory board to the Board which will consist of one (1)
representative of each of the Network Operators, and each member of such
advisory board shall be entitled, without further request, to receive copies of
all materials distributed at or in connection with the Company's Board meetings,
as well as any other information distributed to the Board concurrently with the
distribution of such items to the members of the Board; PROVIDED, HOWEVER, that
each member of such advisory board shall agree to hold in confidence and trust
and to act in a fiduciary manner with respect to all information so provided;
and, PROVIDED FURTHER, that the Company reserves the right to withhold any
information from members of the advisory board if access to such information
could adversely affect the attorney-client privilege between the Company and its
counsel or would result in disclosure of trade secrets or other commercially
sensitive competitive information to such advisory board.
4. TRANSFEREES. Oracle and the Network Operators agree not to make
any transfer or other disposition of all or any portion of the capital stock of
the Company that they now own or hereafter acquire unless and until the
transferee has agreed in writing to be bound by the obligations of such
transferor in this Agreement to the extent that such obligations are then
applicable; PROVIDED, HOWEVER, that this Section 4 shall not apply to any
transfer or other disposition effected on a national securities exchange or The
Nasdaq Stock Market's National Market or any other open market transaction or to
the transfer of less than 100,000 shares of the Company's capital stock in the
aggregate.
5. CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
6. NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including telecopy, telex or similar
writing) and shall be deemed given or made as of the date delivered, if
delivered personally or by telecopy (provided that delivery by telecopy shall be
followed by delivery of an additional copy personally, by mail or overnight
courier), one day after being delivered by overnight courier or three days after
being mailed by registered or certified mail (postage prepaid, return receipt
requested), to the parties at the following addresses:
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If to the Company:
0000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
If to Oracle:
000 Xxxxxx Xxxxxxx, XX 0xx0
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
If to Comcast Technology, Inc.:
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxx
If to Xxx Communications, Inc.:
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxx
If to MediaOne Interactive Services, Inc.:
0000 X. Xxxxxxx Xxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
7. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company, Oracle and each of the Network Operators. Any amendment
or waiver so effected shall be binding upon the Parties hereto.
8. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the Parties.
9. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
conflicts of law principles thereof.
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11. ENTIRE AGREEMENT. This Agreement is intended to be the sole
agreement of the Parties as it relates to this subject matter and does hereby
supersede all other agreements of the Parties relating to the subject matter
hereof other than the PCV Agreement.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
LIBERATE TECHNOLOGIES
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
ORACLE CORPORATION
By:
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Title:
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COMCAST CORPORATION
By:
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Title:
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XXX COMMUNICATIONS, INC.
By:
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Title:
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MEDIAONE INTERACTIVE SERVICES, INC.
By:
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Title:
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