EXHIBIT 99.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 7, 2001 (this "Agreement"), by
and between NetZero, Inc., a Delaware corporation ("NetZero"), and the
undersigned stockholder ("Stockholder") of Juno Online Services, Inc., a
Delaware corporation ("Juno").
RECITALS
A. Concurrently with the execution of this Agreement, NetZero, Juno
and others are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which NetZero and Juno will effect a business
combination, upon the terms and subject to the conditions set forth in the
Merger Agreement (the "Mergers"). Unless otherwise indicated, capitalized
terms not defined herein have the meanings given to them in the Merger
Agreement.
B. The Stockholder is a stockholder of Juno and has the voting power
with respect to such number of shares of the outstanding capital stock of Juno
as is indicated on the final page of this Agreement (collectively, the
"Shares").
C. As a material inducement to enter into the Merger Agreement and
to consummate the Mergers, NetZero desires the Stockholder to agree, and the
Stockholder is willing to agree (i) to vote the Shares and any other such
shares of capital stock of Juno acquired by Stockholder so as to facilitate
consummation of the Mergers and (ii) to not engage in certain solicitation
activities.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Voting of Shares.
Section 1.1 Voting Agreement. Subject to the terms and conditions of this
Agreement, at every meeting of the stockholders of Juno called with respect to
any of the following, and at every adjournment or postponement thereof, and on
every action or approval by written consent of the stockholders of Juno with
respect to any of the following, Stockholder shall vote or cause to be voted
the Shares and any New Shares (as hereinafter defined) (x) in favor of (i)
adoption of the Merger Agreement, (ii) waiving any notice that may have been
or may be required relating thereto and (iii) any matter that would reasonably
be expected to facilitate the Mergers and (y) against any matter that would
reasonably be expected to hinder, impede, prevent or delay the consummation of
the Mergers. Stockholder shall not, from the date of this Agreement until the
Expiration Date (as hereinafter defined), enter into any agreement or
understanding with any Person to vote or give instructions inconsistent with
clause "(x)" or "(y)" of the preceding sentence.
Section 1.2 New Shares. Stockholder agrees that any shares of capital
stock of Juno that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership ("New Shares") after the execution of
this Agreement and prior to the Expiration Date shall be subject to the terms
and conditions of this Agreement to the same extent as if they constituted
Shares.
Section 1.3 Proxy.
(a) Concurrently with the execution of this Agreement: (i) Stockholder
shall deliver to NetZero a proxy in the form attached hereto as Exhibit A,
which shall be irrevocable to the fullest extent permitted by law, with
respect to the shares referred to therein (the "Proxy"); and (ii) Stockholder
shall cause to be delivered to NetZero an additional proxy (in the form
attached hereto as Exhibit A) executed on behalf of the record owner of any
Shares that are owned beneficially (but are not owned of record) by
Stockholder.
(b) After the execution of this Agreement until the Expiration Date,
Stockholder shall execute or cause to be executed such further proxies as may
be requested by NetZero with respect to any New Shares, and Stockholder shall
promptly notify NetZero upon acquiring beneficial ownership of any New Shares.
(c) Stockholder covenants and agrees that, from the date of this
Agreement until the Expiration Date, Stockholder will not deposit any of the
Shares into a voting trust or grant a proxy or enter into a voting agreement
or similar contract with respect to any of the Shares.
2. Representations and Warranties of the Stockholder.
Section 2.1 Ownership of Shares. Stockholder represents and warrants that
Stockholder (i) is the record and beneficial owner of and has the sole right
to vote or direct the voting of the Shares, which at the date hereof are free
and clear of any liens, claims, options, charges or other encumbrances (other
than Shares that have been placed in the Selling Trust prior to the date
hereof) and (ii) does not own, either beneficially or of record, any shares of
capital stock of Juno other than the Shares (excluding (x) shares as to which
Stockholder currently disclaims beneficial ownership in accordance with
applicable law and (y) shares which Stockholder has the right to acquire
pursuant to options granted to Stockholder by Juno).
Section 2.2 No Conflict. The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of this Agreement and the
Proxy by Stockholder will not: (i) conflict with or violate any legal
requirement, order, decree or judgment applicable to Stockholder or by which
Stockholder or any of Stockholder's properties is bound or affected; or (ii)
result in any breach of or constitute a default (with notice or lapse of time,
or both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an encumbrance
on or otherwise affecting any of the Shares pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of Stockholder's
properties is bound or affected. The execution and delivery of this Agreement
and the Proxy by Stockholder do not, and the performance of his obligations
under this Agreement and the granting of the Proxy by Stockholder will not,
require any consent of any Person.
Section 2.3 Enforceability. Stockholder has all requisite power and
capacity to execute and deliver this Agreement and the Proxy and to perform
his obligations hereunder and thereunder. This Agreement and the Proxy have
been duly executed and delivered by Stockholder and, assuming the due
authorization, execution and delivery of this Agreement by NetZero, each
constitute the legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their respective terms,
subject to (i) laws of general application relating to bankruptcy, insolvency
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and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
Section 2.4 Continuous Warranty. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of
this Agreement, and, other than the representation and warranty contained in
clause 2.1(i) hereof, will be accurate in all material respects at all times
through the Expiration Date and will be accurate in all material respects as
of the date of the consummation of the Mergers as if made on that date.
3. Covenants of Stockholder. Stockholder hereby covenants and agrees to
cooperate fully with NetZero and to execute and deliver any additional
documents necessary or desirable and to take such further actions, in the
reasonable opinion of NetZero, necessary or desirable to carry out the intent
of this Agreement.
4. No Solicitation. Until the Effective Time, Stockholder (in his capacity as
such) will not, and will not authorize, direct or knowingly permit any of his
employees, Affiliates (it being understood that Juno is not an Affiliate of
Stockholder restricted by this Section 4), investment bankers, attorneys,
accountants or other agents, advisors or representatives to take any action
that Juno would be prohibited from taking under Section 6.2 of the Merger
Agreement. In addition to the foregoing, the Stockholder shall immediately
notify NetZero of any Juno Takeover Proposal received by the Stockholder
indicating, in connection with such notice, the name of the Person or Persons
making such offer or proposal and the material terms and conditions of any
such proposals or offers, and will keep NetZero informed, on a current basis,
of the status and material terms of any such offer or proposal and of any
modifications to the terms thereof; provided however, that this provision
shall not in any way be deemed to limit the obligations of the Stockholder set
forth in the preceding sentence. Each of the Stockholder and NetZero
acknowledge that this Section 4 was a significant inducement for NetZero to
enter into the Merger Agreement and the absence of such provision would have
resulted in a failure to induce NetZero to enter into the Merger Agreement.
5. Consent and Waiver. Stockholder hereby gives any consents or waivers that
are reasonably required for the consummation of the Mergers under the terms of
(a) any agreements between Stockholder (or any of his Affiliates) and Juno, or
any Juno Subsidiary or (b) pursuant to any other rights Stockholder may have.
6. Termination. This Agreement shall terminate and shall have no further force
or effect as of the earliest of (a) the Closing Date, (b) the termination of
the Merger Agreement and (c) November 30, 2001 (the "Expiration Date").
7. No Restraint on Officer or Director Action. This Agreement is intended to
bind Stockholder only with respect to the specific matters set forth herein,
and shall not prohibit Stockholder from acting in accordance with his
fiduciary duties as an officer or director of Juno.
8. Limited Proxy. Stockholder will retain at all times the right to vote
Stockholder's Shares, in Stockholder's sole discretion, on all matters other
than those set forth in Section 1.1 which are at any time or from time to time
presented to Juno's stockholders generally.
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9. Miscellaneous.
Section 9.1 Fees and Expenses. Except as specifically provided to the
contrary in this Agreement, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such expenses.
Section 9.2 Amendments and Modification. Subject to applicable law, this
Agreement may not be amended, modified, or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
Section 9.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement shall
survive the Expiration Date; provided, however that the termination of this
Agreement shall not relieve any party from any liability for any breach of
this Agreement.
Section 9.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or sent by an internationally recognized overnight
courier service, such as Federal Express, to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
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if to NetZero, to:
NetZero, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Chief Executive Officer and General Counsel
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Telecopy No.: (000) 000-0000
and
if to Stockholder, to the address for notice set forth on the
last page hereof.
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Section 9.5 Counterparts. This Agreement may be executed in one or more
counterparts (whether delivered by facsimile or otherwise), each of which
shall be considered one and the same agreement.
Section 9.6 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein):
(a) constitute the entire agreement and supersede all prior agreements,
negotiations, arrangements and understandings, both written and oral, among
the parties with respect to the subject matter hereof, and (b) are not
intended to confer upon any person other than NetZero and Stockholder any
rights or remedies hereunder.
Section 9.7 Severability. Any term or provision of this Agreement that is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the invalid, void or unenforceable term or
provision in any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction or other authority declares that
any term or provision hereof is invalid, void or unenforceable, the
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parties agree that the court making such determination shall have the power to
and shall, subject to the discretion of such court, reduce the scope,
duration, area or applicability of the term or provision, to delete specific
words or phrases, or to replace any invalid, void or unenforceable term or
provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
Section 9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, including
Section 5-1401 of New York General Obligations Law.
Section 9.9 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 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 enforce
specifically the terms and provisions of this Agreement in any court of the
United States or New York state court sitting in the Borough of Manhattan, The
City of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties (a) consents to
submit itself to the personal jurisdiction of any Federal court or any New
York state court sitting in the Borough of Manhattan, The City of New York in
the event any dispute arises out of this Agreement or any of the Transactions,
(b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c)
agrees that it will not bring any action relating to this Agreement or any of
the Transactions in any court other than a Federal court sitting in the State
of New York or a New York state court sitting in the Borough of Manhattan, The
City of New York. NETZERO AND STOCKHOLDER EACH IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN CONNECTION WITH THIS
AGREEMENT, THE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 9.10 Extension, Waiver. At any time prior to the Expiration Date,
the parties to this Agreement may (a) extend the time for the performance of
any of the obligations or other acts of the other parties to this Agreement,
(b) waive any inaccuracies in the representations and warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement or (c) waive compliance by the other parties with any of the
agreements or conditions contained in this Agreement. Any agreement on the
part of a party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
Section 9.11 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties to
this Agreement (whether by operation of law or otherwise) without the prior
written consent of the other parties to this Agreement. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
assigns.
Section 9.12 Legal Counsel. Stockholder acknowledges that he has been
advised to, and has had the opportunity to consult with his or its personal
attorney prior to entering into this Agreement. Stockholder acknowledges that
attorneys for Juno represent Juno and do not represent any of the
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stockholders of Juno in connection with the Merger Agreement, this Agreement
or any of the transactions contemplated hereby or thereby.
Section 9.13 Agreement Negotiated. The form of this Agreement has been
negotiated by or on behalf of NetZero and Juno, each of which was represented
by attorneys who have carefully negotiated the provisions hereof. No law or
rule relating to the construction or interpretation of contracts against the
drafter of any particular clause should be applied with respect to this
Agreement or the Proxy.
Section 9.14 Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
Section 9.15 Legends. Any stock certificates representing the Shares or
the New Shares shall be legended at the request of NetZero to reflect the
voting agreement and, if applicable, the irrevocable proxy granted by this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
NETZERO, INC.
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
STOCKHOLDER
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
Number of Shares of Juno Beneficially Owned by Stockholder:
Common Stock: __________________________________
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Juno Online Services, Inc., a
Delaware corporation ("Juno"), hereby irrevocably appoints and constitutes
Xxxxxxx X. Xxxxxxxx and Xxxxxxxx X. Xxxxxxx, Xx., of NetZero, Inc., a Delaware
corporation ("NetZero"), and each of them, or any other designee of NetZero,
as the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of Juno
beneficially owned by the undersigned, which shares are listed on the final
page of this irrevocable proxy (the "Irrevocable Proxy") or such lesser number
of shares that the undersigned stockholder may own as of the record date, and
any and all other shares or securities issued or issuable in respect thereof,
or otherwise acquired by the undersigned on or after the date hereof
(collectively, the "Shares"), until the earliest of (a) the Closing Date, (b)
the termination of the Merger Agreement and (c) November 30, 2001 (the
"Expiration Date"). Upon the undersigned's execution of this Irrevocable
Proxy, any and all prior proxies given by the undersigned with respect to any
Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date.
This Irrevocable Proxy is irrevocable (to the fullest extent
provided by applicable law), is coupled with an interest, is granted pursuant
to the Voting Agreement, dated as of June 7, 2001, by and between NetZero and
the undersigned Stockholder (the "Voting Agreement"), and is granted in
consideration of NetZero (a) entering into the Agreement and Plan of Merger,
dated as of June 7, 2001 (the "Merger Agreement"), by and among NetZero, Juno
and others and (b) consummating the Mergers. Capitalized terms used but not
otherwise defined in this proxy have the meanings given to such terms in the
Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered to by the undersigned at any time prior to the
Expiration Date to act as the undersigned's attorney and proxy to vote the
Shares and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents with respect to the Shares pursuant to the General
Corporation Law of the State of Delaware) at every annual, special or
adjourned meeting of the stockholders of Juno, and in every written consent in
lieu of such a meeting, or otherwise, (x) in favor of (i) adoption of the
Merger Agreement, (ii) waiving any notice that may have been or may be
required relating thereto and (iii) any matter that could reasonably be
expected to facilitate the Mergers and (y) against any matter that could
reasonably be expected to hinder, impede, prevent or delay the consummation of
the Mergers.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The
undersigned Stockholder may vote the Shares on all such other matters.
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All authority herein conferred shall survive the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of
the undersigned. THIS PROXY IS IRREVOCABLE.
Signature of Stockholder: _____________________________
Print Name of Stockholder: ____________________________
_____ Shares beneficially owned
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