EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 7, 2001 (this "Agreement"), by and
between Juno Online Services, Inc., a Delaware corporation ("Juno"), and the
undersigned stockholder ("Stockholder") of NetZero, Inc., a Delaware
corporation ("NetZero").
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 NetZero and has the voting power
with respect to such number of shares of the outstanding capital stock of
NetZero 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, Juno 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 NetZero acquired and beneficially owned by
Stockholder so as to facilitate consummation of the Mergers.
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 NetZero 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 NetZero
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 NetZero 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 Juno 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 Juno 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 Juno with respect to any New Shares, and Stockholder shall
promptly notify Juno 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. Waiver of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives any rights of appraisal, dissenters' rights or similar
rights that Stockholder may have in connection with the Mergers. Stockholder
shall cause to be irrevocably and unconditionally waived any such rights that
any Affiliate of Stockholder may have in connection with the Mergers.
3. Representations and Warranties of the Stockholder.
Section 3.1 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 and
(ii) does not own, either beneficially or of record, any shares of capital
stock of NetZero 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 NetZero).
Section 3.2 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 3.3 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
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due authorization, execution and delivery of this Agreement by Juno, 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
and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
Section 3.4 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 3.1(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.
4. Covenants of Stockholder. Stockholder hereby covenants and agrees to
cooperate fully with Juno and to execute and deliver any additional documents
necessary or desirable and to take such further actions, in the reasonable
opinion of Juno, necessary or desirable to carry out the intent of this
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 NetZero,
or any NetZero 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 NetZero.
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 NetZero's stockholders generally.
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.
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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):
if to Juno, to:
Juno Online Services, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer and General Counsel
Telecopy No.: (000) 000-0000
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
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 LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
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 Juno and Stockholder any rights
or remedies hereunder.
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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 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. JUNO 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
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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 NetZero represent NetZero and do not represent any of the
stockholders of NetZero 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 Juno and NetZero, 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 Juno 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.
JUNO ONLINE SERVICES, INC.
By: ______________________________________________________
Name: ____________________________________________________
Title: ___________________________________________________
STOCKHOLDER
By: ______________________________________________________
Name: ____________________________________________________
Title: ___________________________________________________
Number of Shares of NetZero Beneficially Owned by Stockholder:
Common Stock: ____________________________________________
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of NetZero, Inc., a Delaware corporation
("NetZero"), hereby irrevocably appoints and constitutes Xxxxxxx Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx, of Juno Online Services, Inc., a Delaware corporation
("Juno"), and each of them, or any other designee of Juno, 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 NetZero 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 Juno and the
undersigned Stockholder (the "Voting Agreement"), and is granted in
consideration of Juno (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 NetZero, 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.
Stockholder: ____________________________
Print Name of Stockholder: ____________________________
_____ Shares beneficially owned
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