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;
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(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,
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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.
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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
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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 Affiliate's 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 of interpretation of any provision of this
Voting Agreement. This Voting Agreement may be executed in several
counterparts, each of which shall constitute one in 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
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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:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry Sonsini, Jim Strawbridge
and Marty Korman
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
If to Acquiror or Newco:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166-9323
Attention: Stephen M. Case
President & CEO
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Facsimile No.: (703) 265-1422
with a copy to:
Louis A. Goodman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
31st Floor
Boston, Massachusetts 02108
Telephone: (617) 573-4800
Fax: (617) 573-4822
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.
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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/ Kenneth J. Novack
-------------------------------------
Name: Kenneth J. Novack
Title: Vice Chairman
-------------------------------------
Name: James L. Barksdale
-------------------------------------
Name: Marc L. Andreessen
-------------------------------------
Name: James H. Clark
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.
AMERICA ONLINE, INC.
By:
-------------------------------------
Name:
Title:
/s/ James L. Barksdale
-------------------------------------
Name: James L. Barksdale
/s/ Marc L. Andreessen
-------------------------------------
Name: Marc L. Andreessen
/s/ James H. Clark
-------------------------------------
Name: James H. Clark
SIGNATURE PAGE TO VOTING AGREEMENT
MARC L. ANDREESSEN LIVING TRUST
DTD 02/01/96
By: /s/ Marc L. Andreessen
--------------------------------
Marc L. Andreessen, Trustee
ANDREESSEN 1996 CHARITABLE
REMAINDER TRUST DTD 2/01/96
By:
--------------------------------
Michael G. Mohr, Co-Trustee
By: /s/ Marc L. Andreessen
--------------------------------
Marc L. Andreessen, Co-Trustee
ANDREESSEN 1996 CHARITABLE
REMAINDER TRUST DTD 2/21/96
By:
--------------------------------
Michael G. Mohr, Co-Trustee
By: /s/ Marc L. Andreessen
--------------------------------
Marc L. Andreessen, Co-Trustee
MONACO PARTNERS LP
By: /s/ James H. Clark
--------------------------------
Name: James H. Clark
Title: President
CLARK VENTURES INC.
By: /s/ James H. Clark
--------------------------------
Name: James H. Clark
Title: President
SIGNATURE PAGE TO VOTING AGREEMENT
MARC ANDREESSEN 1996 LIVING
TRUST UTA DTD 2/1/96
By: /s/ Marc L. Andreessen
--------------------------------
Marc L. Andreessen, Trustee
SIGNATURE PAGE TO VOTING AGREEMENT
Voting Agreement - America Online Inc. and Stockholders
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