{"id":43979,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/voting-agreement-america-online-inc-and-stockholders.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"voting-agreement-america-online-inc-and-stockholders","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/voting-agreement-america-online-inc-and-stockholders.html","title":{"rendered":"Voting Agreement &#8211; America Online Inc. and Stockholders"},"content":{"rendered":"<pre>\n                              VOTING AGREEMENT\n\n     VOTING AGREEMENT, dated as of November 23, 1998 (this 'Voting \nAgreement'), by and among America Online, Inc., a Delaware corporation \n('Acquiror'), and each of the parties identified on Schedule A hereto \n(individually a 'Stockholder' and collectively the 'Stockholders').\n\n     WHEREAS, Netscape Communications Corporation, a Delaware corporation \n('Company'), Acquiror and Apollo Acquisition Corp., a Delaware corporation \nand a newly-formed wholly owned direct subsidiary of Acquiror ('Newco'), have \ncontemporaneously with the execution of this Voting Agreement, entered into \nan Agreement and Plan of Merger dated as of November 23, 1998 (the 'Merger \nAgreement') which provides, among other things, that Newco shall be merged \n(the 'Merger') with and into the Company pursuant to the terms and conditions \nthereof;\n\n     WHEREAS, as an essential condition and inducement to Acquiror to enter \ninto the Merger Agreement and in consideration therefor, the undersigned \nStockholders and the Acquiror have agreed to enter into this Voting \nAgreement; and\n\n     WHEREAS, as of the date hereof, the Stockholders own of record and \nbeneficially the shares of common stock, par value $0.0001 per share, of the \nCompany (the 'Company Common Stock') set forth opposite their respective \nnames on Schedule A hereto and desire to enter into this Agreement with \nrespect to such shares of Company Common Stock;\n\n     NOW, THEREFORE, in consideration of the foregoing and the mutual \ncovenants and agreements contained herein and in the Merger Agreement, and \nfor other good and valuable consideration, the receipt and sufficiency of \nwhich are hereby acknowledged, and intending to be legally bound hereby, the \nparties hereto hereby agree as follows:\n\n\n\n                                     ARTICLE I\n\n                                  Voting of Shares\n\n          Section 1.1    VOTING AGREEMENT.  Each Stockholder hereby agrees to \n(a) appear, or cause the holder of record on any applicable record date (the \n'Record Holder') to appear for the purpose of obtaining a quorum at any \nannual or special meeting of stockholders of the Company and at any \nadjournment thereof at which matters relating to the Merger, Merger Agreement \nor any transaction contemplated thereby are considered and (b) vote, or cause \nthe Record Holder to vote, in person or by proxy all of the shares of the \nCompany Common Stock owned by Stockholder, or with respect to which such \nStockholder has or shares voting power or control, and all of the shares of \nCompany Common Stock which shall, or with respect to which voting power or \ncontrol shall, hereafter be acquired by such Stockholder (collectively, the \n'Shares') in favor of the Merger, the Merger Agreement and the transactions \ncontemplated by the Merger Agreement.\n\n          Section 1.2    NO OWNERSHIP INTEREST.  Nothing contained in this \nVoting Agreement shall be deemed to vest in Acquiror any direct or indirect \nownership or incidence of ownership of or with respect to any Shares.  All \nrights, ownership and economic benefits of and relating to the Shares shall \nremain and belong to the Stockholders, and Acquiror shall have no authority \nto manage, direct, superintend, restrict, regulate, govern, or administer any \nof the policies or operations of the Company or exercise any power or \nauthority to direct the Stockholders in the voting of any of the Shares, \nexcept as otherwise provided herein, or the performance of the Stockholders' \nduties or responsibilities as stockholders of the Company.\n\n          Section 1.3    EVALUATION OF INVESTMENT.  Each Stockholder, by \nreason of its knowledge and experience in financial and business matters, \nbelieves itself capable of evaluating the merits and risks of the investment \nin shares of common stock, par value $.01 per share, of Acquiror ('Acquiror \nCommon Stock'), contemplated by the Merger Agreement.\n\n          Section 1.4    DOCUMENTS DELIVERED.  Each Stockholder acknowledges \nreceipt of copies of the following documents:\n\n               (a)  the Merger Agreement and all Annexes thereto;\n\n               (b)  the Option Agreement;\n\n                                       2\n\n\n               (c)  Acquiror's Annual Report on Form 10-K for the fiscal year\n                    ended June 30, 1998;\n\n               (d)  Acquiror's Proxy Statement dated September 28, 1998; and\n\n               (e)  each report filed with the Securities and Exchange\n                    Commission by the Acquiror on Forms 8-K and 10-Q since June\n                    30, 1998.\n\nEach Stockholder also acknowledges that he possesses the information relating \nto the Company which he deems relevant to his investment in the Acquiror \nCommon Stock should the Merger be consummated.\n\n          Section 1.5    NO INCONSISTENT AGREEMENTS.  Each Stockholder hereby \ncovenants and agrees that, except as contemplated by this Voting Agreement \nand the Merger Agreement, the Stockholder (a) has not entered, and shall not \nenter at any time while this Voting Agreement remains in effect, into any \nvoting agreement and (b) has not granted, and shall not grant at any time \nwhile this Voting Agreement remains in effect, a proxy or power of attorney, \nin either case which is inconsistent with this Agreement.\n\n                                   ARTICLE II\n\n                                    Transfer\n\n          Section 2.1    TRANSFER OF TITLE.\n\n                    (a)  Each Stockholder hereby covenants and agrees that such\n                         Stockholder will not, prior to the termination of this\n                         Voting Agreement, either directly or indirectly, offer\n                         or otherwise agree to sell, assign, pledge,\n                         hypothecate, transfer, exchange, or dispose of any\n                         Shares or options to purchase Company Common Stock\n                         ('Options') or any other securities or rights\n                         convertible into or exchangeable for shares of Company\n                         Common Stock, owned either directly or indirectly by\n                         such Stockholder or with respect to which such\n                         Stockholder has the power of disposition, \n\n                                       3\n\n\n                         whether now or hereafter acquired, without the prior \n                         written consent of Acquiror (provided nothing \n                         contained herein will be deemed to restrict the \n                         exercise of Options), unless the Person to whom \n                         Shares or Options have been sold, assigned, pledged, \n                         hypothecated, transferred, exchanged or disposed \n                         agrees to be bound by this Voting Agreement as if a \n                         party hereto.\n\n                    (b)  The Stockholder hereby agrees and consents to the entry\n                         of stop transfer instructions by the Company against\n                         the transfer of any Shares consistent with the terms of\n                         Section 2.1(a) hereof.\n\n                                    ARTICLE III\n\n                           Representations and Warranties\n                                of the Stockholders\n\n     Each Stockholder hereby severally and not jointly represents and warrants\nto Acquiror as follows:\n\n          Section 3.1    AUTHORITY RELATIVE TO THIS AGREEMENT.  Such \nStockholder is competent to execute and deliver this Voting Agreement, to \nperform its obligations hereunder and to consummate the transactions \ncontemplated hereby. This Voting Agreement has been duly and validly executed \nand delivered by such Stockholder and, assuming the due authorization, \nexecution and delivery by Acquiror, constitutes a legal, valid and binding \nobligation of such Stockholder, enforceable against such Stockholder in \naccordance with its terms.\n\n          Section 3.2    NO CONFLICT.  The execution and delivery of this \nVoting Agreement by such Stockholder does not, and the performance of this \nVoting Agreement by such Stockholder shall not, result in any breach of or \nconstitute a default (or an event that with notice or lapse of time or both \nwould become a default) under, or give to others any rights of termination, \namendment, acceleration or cancellation of, or result in the creation of a \nlien or encumbrance, on any of the Shares or Options pursuant to, any note, \nbond, mortgage, indenture, contract, agreement, lease, license, permit, \nfranchise or other instrument or obligation to which such Stockholder is a \nparty or by which such Stockholder or the Shares or Options are bound or \naffected.\n\n                                       4\n\n\n\n          Section 3.3    TITLE TO THE SHARES.  The Shares and Options held by \nsuch Stockholder are owned free and clear of all security interests, liens, \nclaims, pledges, options, rights of first refusal, agreements, limitations on \nsuch Stockholder's voting rights, charges and other encumbrances of any \nnature whatsoever, and such Stockholder has not appointed or granted any \nproxy, which appointment or grant remains effective, with respect to the \nShares.\n\n                                     ARTICLE IV\n\n                                   Miscellaneous\n\n          Section 4.1    NO SOLICITATION.  From the date hereof until the \nEffective Time or, if earlier, the termination of the Merger Agreement, the \nStockholder shall not (whether directly or indirectly through advisors, \nagents or other intermediaries) (a) solicit, initiate or encourage any \nAcquisition Proposal or (b) engage in discussions or negotiations with, or \ndisclose any non-public information relating to the Company or its \nSubsidiaries to any Person that has made an Acquisition Proposal or has \nadvised the Stockholder, or to his Knowledge, any other Stockholder or the \nCompany, that such Person is interested in making an Acquisition Proposal.\n\n          Section 4.2    TERMINATION.  This Agreement shall terminate upon \nthe earliest to occur of (a) the termination of the Merger Agreement in \naccordance with its terms or (b) the Effective Time.  Upon such termination, \nno party shall have any further obligations or liabilities hereunder, \nprovided that no such termination shall relieve any party from liability for \nany breach of this Voting Agreement prior to such termination.\n\n          Section 4.3    ENFORCEMENT OF AGREEMENT.  The parties hereto agree \nthat irreparable damage would occur in the event that any of the provisions \nof this Voting Agreement were not performed in accordance with its specified \nterms or were otherwise breached.  It is accordingly agreed that the parties \nshall be entitled to an injunction or injunctions to prevent breaches of this \nVoting Agreement and to specific performance of the terms and provisions \nhereof in addition to any other remedy to which they are entitled at law or \nin equity.\n\n          Section 4.4    SUCCESSORS AND AFFILIATES.  This Voting Agreement shall\ninure to the benefit of and shall be binding upon the parties hereto and their\n\n                                       5\n\n\nrespective heirs, legal representatives and permitted assigns.  If any \nStockholder shall at any time hereafter acquire ownership of, or voting power \nwith respect to, any additional Shares in any manner, whether by the exercise \nof any Options or any securities or rights convertible into or exchangeable \nfor shares of Company Common Stock, by operation of law or otherwise, such \nShares shall be held subject to all of the terms and provisions of this \nVoting Agreement.  Without limiting the foregoing, each Stockholder \nspecifically agrees that the obligations of such Stockholder hereunder shall \nnot be terminated by operation of law, whether by death or incapacity of the \nStockholder or otherwise.\n\n          Section 4.5    ENTIRE AGREEMENT.  This Voting Agreement together \nwith the Affiliate's Agreements, in the form attached as Annex C to the \nMerger Agreement, if and to the extent entered into by each of the \nStockholders and Acquiror constitutes the entire agreement among Acquiror and \nthe Stockholders with respect to the subject matter hereof and supersedes all \nprior agreements and understandings, both written and oral, among Acquiror \nand the Stockholders with respect to the subject matter hereof.\n\n          Section 4.6    CAPTIONS AND COUNTERPARTS.  The captions in this \nVoting Agreement are for convenience only and shall not be considered a part \nof or affect the construction of interpretation of any provision of this \nVoting Agreement.  This Voting Agreement may be executed in several \ncounterparts, each of which shall constitute one in the same instrument.\n\n          Section 4.7    AMENDMENT.  This Voting Agreement may not be amended \nexcept by an instrument in writing signed by the parties hereto.\n\n          Section 4.8    WAIVERS.  Except as provided in this Voting \nAgreement, no action taken pursuant to this Voting Agreement, including \nwithout limitation any investigation by or on behalf of any party, shall be \ndeemed to constitute a waiver by the party taking such action of compliance \nwith any representations, warranties, covenants or agreements contained in \nthis Voting Agreement.  The waiver by any party hereto of a breach of any \nprovision hereunder shall not operate or be construed as a wavier of any \nprior or subsequent breach of the same or any other provision hereunder.\n\n          Section 4.9    SEVERABILITY.  If any term or other provision of \nthis Voting Agreement is invalid, illegal or incapable of being enforced by \nany rule of law, or public policy, all other conditions and provisions of \nthis Voting Agreement \n\n                                       6\n\n\nshall nevertheless remain in full force and effect.  Upon such determination \nthat any term or other provision is invalid, illegal or incapable of being \nenforced, the parties hereto shall negotiate in good faith to modify this \nVoting Agreement so as to effect the original intent of the parties as \nclosely as possible to the fullest extent permitted by applicable law in a \nmutually acceptable manner in order that the terms of this Voting Agreement \nremain as originally contemplated to the fullest extent possible.\n\n          Section 4.10   NOTICES.  All notices and other communications given \nor made pursuant hereto shall be in writing and shall be deemed to have been \nduly given or made and shall be effective upon receipt, if delivered \npersonally, upon receipt of a transmission confirmation if sent by facsimile \n(with a confirming copy sent by overnight courier) and on the next business \nday if sent by Federal Express, United Parcel Service, Express Mail or other \nreputable overnight courier to the parties at the following addresses (or at \nsuch other address for a party as shall be specified by notice):\n\n               If to a Stockholder:\n\n               At the address set forth opposite such Stockholder's name on\n               Schedule A hereto\n\n               With a copy to:\n\n               Wilson Sonsini Goodrich &amp; Rosati\n               Professional Corporation\n               650 Page Mill Road\n               Palo Alto, California  94304-1050\n               Attention:  Larry Sonsini, Jim Strawbridge\n                           and Marty Korman\n               Telephone:  (650) 493-9300\n               Facsimile:  (650) 493-6811\n\n               If to Acquiror or Newco:\n\n               America Online, Inc.\n               22000 AOL Way\n               Dulles, Virginia  20166-9323\n               Attention:  Stephen M. Case\n                           President &amp; CEO\n\n                                       7\n\n\n               Facsimile No.:  (703) 265-1422\n\n               with a copy to:\n\n               Louis A. Goodman, Esq.\n               Skadden, Arps, Slate, Meagher &amp; Flom LLP\n               One Beacon Street\n               31st Floor\n               Boston, Massachusetts  02108\n               Telephone:  (617) 573-4800\n               Fax:  (617) 573-4822\n\n          Section 4.11   GOVERNING LAW.  This Voting Agreement shall be \ngoverned by, and construed in accordance with, the laws of the State of \nDelaware regardless of the laws that might otherwise govern under applicable \nprinciples of conflicts of law.\n\n          Section 4.12   DEFINITIONS.  Capitalized terms used and not defined \nherein shall have the meaning set forth in the Merger Agreement.\n\n          Section 4.13   OBLIGATIONS OF STOCKHOLDERS.  The obligations of the \nStockholders hereunder shall be 'several' and not 'joint' or 'joint and \nseveral.'  Without limiting the generality of the foregoing, under no \ncircumstances will any Stockholder have any liability or obligation with \nrespect to any misrepresentation or breach of covenant of any other \nStockholder.\n\n          Section 4.14   OFFICERS AND DIRECTORS.  No person who is or becomes \n(during the term hereof) a director or officer of the Company makes any \nagreement or understanding herein in his or her capacity as such director or \nofficer, and nothing herein will limit or affect, or give rise to any \nliability to Stockholder by virtue of, any actions taken by any Stockholder \nin his or her capacity as an officer or director of the Company in exercising \nits rights under the Merger Agreement.\n\n          Section 4.15   INTERPRETATION.  The parties have participated \njointly in the negotiation of this Voting Agreement.  In the event that an \nambiguity or question of intent or interpretation arises, this Voting \nAgreement shall be construed as if drafted jointly by the parties, and no \npresumption or burden of proof shall arise favoring or disfavoring any party \nby virtue of the authorship of the provisions of this Voting Agreement.\n\n                                       8\n\n\n     IN WITNESS WHEREOF, each of the parties hereto have caused this Voting \nAgreement to be duly executed as of the date first written above.\n\n                              AMERICA ONLINE, INC.\n\n                              By:     \/s\/ Kenneth J. Novack\n                                 -------------------------------------\n                                   Name:      Kenneth J. Novack\n                                   Title:    Vice Chairman\n\n                                         \n                                 -------------------------------------\n                                   Name:  James L. Barksdale\n\n                                         \n                                 -------------------------------------\n                                   Name:  Marc L. Andreessen\n\n                                          \n                                 -------------------------------------\n                                   Name:  James H. Clark\n\n\n\n\n\n                         SIGNATURE PAGE TO VOTING AGREEMENT\n\n\n\n     IN WITNESS WHEREOF, each of the parties hereto have caused this Voting \nAgreement to be duly executed as of the date first written above.\n\n                              AMERICA ONLINE, INC.\n\n                              By:    \n                                 -------------------------------------\n                                   Name:     \n                                   Title:    \n\n                                          \/s\/ James L. Barksdale\n                                 -------------------------------------\n                                   Name:  James L. Barksdale\n\n                                          \/s\/ Marc L. Andreessen\n                                 -------------------------------------\n                                   Name:  Marc L. Andreessen\n\n                                          \/s\/ James H. Clark\n                                 -------------------------------------\n                                   Name:  James H. Clark\n\n\n\n\n\n                         SIGNATURE PAGE TO VOTING AGREEMENT\n\n\n\n\n                                   MARC L. ANDREESSEN LIVING TRUST\n                                   DTD 02\/01\/96\n\n                                   By:  \/s\/ Marc L. Andreessen\n                                      --------------------------------\n                                        Marc L. Andreessen, Trustee\n\n\n                                   ANDREESSEN 1996 CHARITABLE\n                                   REMAINDER TRUST DTD 2\/01\/96\n\n                                   By:  \n                                      --------------------------------\n                                        Michael G. Mohr, Co-Trustee\n\n                                   By:  \/s\/ Marc L. Andreessen\n                                      --------------------------------\n                                        Marc L. Andreessen, Co-Trustee\n\n\n                                   ANDREESSEN 1996 CHARITABLE\n                                   REMAINDER TRUST DTD 2\/21\/96\n\n                                   By:  \n                                      --------------------------------\n                                        Michael G. Mohr, Co-Trustee\n\n                                   By:  \/s\/ Marc L. Andreessen\n                                      --------------------------------\n                                        Marc L. Andreessen, Co-Trustee\n\n\n                                   MONACO PARTNERS LP\n\n                                   By:        \/s\/ James H. Clark\n                                      --------------------------------\n                                        Name:  James H. Clark\n                                        Title: President\n\n\n                                   CLARK VENTURES INC.\n\n                                   By:        \/s\/ James H. Clark\n                                      --------------------------------\n                                        Name:  James H. Clark\n                                        Title: President\n\n\n                                       \n                      SIGNATURE PAGE TO VOTING AGREEMENT\n\n\n\n\n                                   MARC ANDREESSEN 1996 LIVING\n                                   TRUST UTA DTD 2\/1\/96\n\n                                   By:  \/s\/ Marc L. Andreessen\n                                      --------------------------------\n                                        Marc L. Andreessen, Trustee\n\n\n\n\n\n\n                      SIGNATURE PAGE TO VOTING AGREEMENT\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6655,8328],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9629,9633],"class_list":["post-43979","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-america-online-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43979","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43979"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43979"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43979"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43979"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}