Exhibit 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into this 19th day
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of April, 2001, by and between Xxxxx0.xxx, Inc., a Delaware corporation
("Learn2") and each of the undersigned stockholders (each an "E-Stamp
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Stockholder" and collectively, the "E-Stamp Stockholders") of E-Stamp
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Corporation, a Delaware corporation ("E-Stamp").
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WHEREAS, the E-Stamp Stockholders own of record and/or beneficially
the shares of common stock, $0.001 par value, of E-Stamp ("Common Stock") set
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forth opposite their respective names on Schedule A hereto and desire to enter
into this Agreement with respect to such shares of the Common Stock;
WHEREAS, Learn2 and E-Stamp have contemporaneously with the execution
of this Agreement entered into an Agreement and Plan of Merger (the "Merger
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Agreement"), dated as of the date hereof, which provides, among other things,
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for the merger (the "Merger") of Learn2 with and into E-Stamp pursuant to the
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terms and conditions thereof; and
WHEREAS, as an essential condition and inducement to Learn2 entering
into the Merger Agreement, the parties to the Merger Agreement have required
that the E-Stamp Stockholders agree, and the E-Stamp Stockholders have agreed,
to enter into this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
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 hereby are acknowledged, and intending to be legally bound hereby, agree
as follows:
SECTION 1. Definitions
Capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms as in the Merger Agreement.
SECTION 2. Disposition of the Shares
(a) Each E-Stamp Stockholder covenants and agrees that from the
date of this Agreement until the Termination Date (as defined in Section 16
hereof), such E-Stamp Stockholder shall not sell, assign, transfer, encumber,
pledge, mortgage or otherwise encumber or dispose of or enter into any contract,
option or other agreement or understanding with respect to the direct or
indirect sale, assignment, transfer, encumbrance, pledge, mortgage or other
encumbrance or disposition of ("Transfer"), any shares of the Common Stock or
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any other capital stock of E-Stamp (including all options, warrants and other
rights to acquire shares of Common Stock or E-Stamp capital stock) (together,
the "Capital Stock") or any other voting interests in E-Stamp now owned or
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hereafter acquired beneficially or of record by such E-Stamp Stockholder without
the
consent of Learn2, provided, however, that the foregoing requirements shall not
prohibit any Transfer of Capital Stock to any person or entity that does not
prevent the E-Stamp Stockholder from performing his or her obligations under
this Agreement, and provided, further, that the foregoing requirements shall not
prohibit any Transfer of Capital Stock to any person or entity where as a
precondition to such Transfer the transferee: (i) executes a counterpart to this
Agreement and a Proxy (as defined in Section 4, and with such modifications as
Parent may reasonably request); and (ii) agrees in writing to hold such Capital
Stock (or interest in Capital Stock) subject to all of the terms and provisions
of this Agreement.
(b) Each E-Stamp Stockholder hereby agrees and consents to the entry
of stop transfer instructions by E-Stamp against the transfer of any shares of
the Capital Stock consistent with the terms of Section 2(a) hereof.
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SECTION 3. Voting
(a) Each E-Stamp Stockholder hereby agrees to appear, or cause the
holder of record on any applicable record date (the "Record Holder") to appear,
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in person or by proxy, for the purpose of obtaining a quorum at any annual or
special meeting of stockholders of E-Stamp and at any adjournment thereof for
the purpose of voting on the Merger Agreement and the transactions contemplated
thereby (a "Meeting").
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(b) Each E-Stamp Stockholder further agrees that at any such Meeting
such E-Stamp Stockholder shall vote, or cause the Record Holder to vote, in
person or by proxy all of the shares of the Capital Stock, and any other voting
interests of E-Stamp directly or indirectly owned or hereafter acquired
beneficially or of record by such E-Stamp Stockholder:
(i) in favor of the Merger and the adoption of the Merger
Agreement in connection with any meeting of, or solicitation of consents from,
the stockholders of E-Stamp at which or in connection with which the Merger and
the Merger Agreement are submitted for the consideration and vote of the
stockholders of E-Stamp;
(ii) against approval or adoption of any transaction involving
(A) the sale or transfer of all or substantially all of the Capital Stock,
whether by merger, consolidation or other business combination, (B) a sale or
transfer of all or substantially all of the assets of E-Stamp or its
Subsidiaries, (C) a reorganization, recapitalization or liquidation of E-Stamp
or its Subsidiaries or (D) any amendment to E-Stamp's governing instruments
creating any new class of securities of E-Stamp or otherwise affecting the
rights of any class of security as currently in effect; and
(iii) against approval or adoption of resolutions or actions
which would cause the conditions to closing of the Merger, as set forth in the
Merger Agreement, not to be satisfied.
(c) To the extent inconsistent with the foregoing provisions of this
Section 3, each E-Stamp Stockholder revokes any and all previous proxies with
respect to
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shares of the Capital Stock owned beneficially and/or of record by such E-Stamp
Stockholder and agrees not to grant any proxy with respect to the Capital Stock
and any other voting interests in E-Stamp owned or hereafter acquired
beneficially or of record by such E-Stamp Stockholder.
SECTION 4. Proxy; Further Assurances
(a) Contemporaneously with the execution of this Agreement: (i) each
E-Stamp Stockholder has delivered to Learn2 a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
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and (ii) each E-Stamp Stockholder has caused to be delivered to Learn2 an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any outstanding shares of the Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Exchange Act), but not
of record, by such Stockholder, which proxy shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein.
(b) Each E-Stamp Stockholder shall, at Learn2's own expense, execute
such further documents and instruments as may reasonably be required to vest in
Learn2 the power to carry out and give effect to the provisions of this
Agreement.
SECTION 5. Representations and Warranties of Each E-Stamp Stockholder
Each E-Stamp Stockholder hereby, severally and not jointly, represents
and warrants to Learn2 as follows:
(a) Such E-Stamp Stockholder has the legal capacity and all other
power and authority necessary to enter into this Agreement, to perform the
obligations hereunder and to consummate the transactions contemplated hereby.
(b) The shares of the Common Stock reflected on Schedule A as being
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owned by such E-Stamp Stockholder are the only shares of voting Capital Stock or
any other voting interests in E-Stamp owned beneficially or of record by such
E-Stamp Stockholder, and except as set forth in Schedule A, such E-Stamp
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Stockholder does not own any other options, warrants or rights to acquire shares
of any class of capital stock of E-Stamp or any other voting interests in E-
Stamp. Such E-Stamp Stockholder has the sole power respecting voting and
transfer of such E-Stamp Stockholder's shares of the Capital Stock.
SECTION 6. Specific Performance
Each E-Stamp Stockholder acknowledges and agrees that there would be
no adequate remedy at law for Learn2 if such E-Stamp Stockholder fails to
perform any of such E-Stamp Stockholder's obligations hereunder, and accordingly
agrees that Learn2, in addition to any other remedy to which it may be entitled
at law or in equity, shall be entitled to compel specific performance of the
obligations of such E-Stamp
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Stockholder under this Agreement in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction. Each E-Stamp Stockholder hereby waives any objection to the
imposition of such relief or to the posting of a bond in connection therewith.
SECTION 7. Governing Law
This 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 8. Parties in Interest
This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective heirs, legal representatives and
permitted assigns. If any E-Stamp Stockholder shall at any time hereafter
acquire ownership of, or voting power with respect to, any additional shares of
the Capital Stock or any other voting interests in E-Stamp or in any manner,
whether by the exercise of any options or any securities or rights convertible
into or exchangeable for shares of the Capital Stock or any other voting
interests in E-Stamp, by operation of law or otherwise, such shares or other
interests shall be held subject to all of the terms and provisions of this
Agreement. Without limiting the foregoing, each Stockholder specifically agrees
that the obligations of such E-Stamp Stockholder hereunder shall not be
terminated by operation of law, whether by death or incapacity of such E-Stamp
Stockholder or otherwise.
SECTION 9. Amendment
This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed and delivered on behalf of each of the
parties hereto.
SECTION 10. Severability
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement 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 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
Agreement remain as originally contemplated to the fullest extent possible.
SECTION 11. Waiver
Except as provided in this Agreement, no action taken pursuant to this
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 Agreement. The waiver by any party hereto of a breach of any
provision hereunder shall not operate
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or be construed as a wavier of any prior or subsequent breach of the same or any
other provision hereunder.
SECTION 12. 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 as of
the date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address) or sent by electronic transmission to the telecopier number specified
below:
If to an E-Stamp Stockholder:
To such Stockholder's address
or telecopier number as set forth
on Schedule A attached hereto.
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with a copy (which does not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: N. Xxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Learn2:
Xxxxx0.xxx, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
SECTION 13. Entire Agreement; Assignment
This Agreement and the Proxy (a) constitute the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersedes all
prior
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agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and (b) shall not be assigned by operation of law or
otherwise, except that this Agreement shall be binding upon each E-Stamp
Stockholder and each E-Stamp Stockholder's successors and assigns.
SECTION 14. Headings
Section headings are included solely for convenience and are not
considered to be part of this Agreement and are not intended to be an accurate
description of the contents thereof.
SECTION 15. Counterparts
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
SECTION 16. Termination
This Agreement and all of the parties' rights and obligations
hereunder shall terminate on the earlier to occur of (i) the date on which the
Merger Agreement is validly terminated pursuant to Section 7 thereof and (ii)
the Effective Time.
SECTION 17. Officers and Directors
Notwithstanding anything else herein to the contrary but subject to
the proviso set forth in this Section 17, (i) nothing set forth herein shall be
deemed to restrict or otherwise prohibit an E-Stamp Stockholder who is an
officer or director of the E-Stamp from exercising, in such individual's
capacity as an officer or director of E-Stamp, what such E-Stamp Stockholder
believes in good faith to be his or her fiduciary duties as an officer or
director of E-Stamp or to the stockholders of E-Stamp, and (ii) and no action or
inaction required hereby shall require an E-Stamp Stockholder who is an officer
or director of E-Stamp to take any action or refrain from taking any action, in
such individual's capacity as an officer or director of E-Stamp that such E-
Stamp Stockholder believes in good faith is required by or would be a breach of
his or her fiduciary duties as an officer or director of E-Stamp to the
stockholders of the E-Stamp.
SECTION 18. No Requirement to Exercise.
Notwithstanding anything to the contrary in this Agreement, an E-Stamp
Stockholder shall be under no obligation under this Agreement to exercise any
options, warrants or other rights to acquire shares of Capital Stock owned by an
E-Stamp Stockholder as of the date of this Agreement or of which an E-Stamp
Stockholder acquires ownership during the period from the date of this Agreement
through its termination pursuant to Section 16.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Voting Agreement, or have caused this Voting Agreement to be
executed and delivered on their behalf, as of the date first above written.
XXXXX0.XXX, INC.
By: _____________________________
Name:
Title:
E-STAMP STOCKHOLDERS
By: _____________________________
Name: Xxxxxx X. Xxxxx
By: _____________________________
Name: Xxxxxx X. Xxxxxx
By: _____________________________
Name: Xxxxxxx X. Xxxxxxx
By: _____________________________
Name: Xxxx X. Xxxxx
[Signatures continued on the following page.]
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By: _____________________________
Name: Xxxxxx X. Xxxxx
By: _____________________________
Name: Xxxxx Xxxx
By: _____________________________
Name: Xxxx Xxxxxx
By: _____________________________
Name: Xxxxxxx Xxxxxx
By: _____________________________
Name: Xxxxxx X. Xxxxxx
By: _____________________________
Name: Xxx Xxxxxxx
By: _____________________________
Name: Xxxxxx Xxxxxxx
By: _____________________________
Name: Xxx Xxxxx
By: _____________________________
Name: Xxxx Xxxxxxx
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SCHEDULE A
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E-Stamp Stockholder Name, Common Stock Owned of Common Stock Owned
Address and Telephone Number Record Beneficially/1/
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/1/ All are shares of Company Common Stock issuable upon the exercise of
Options as of the date of this Agreement.
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EXHIBIT A
Form of Irrevocable Proxy
The undersigned stockholder of E-Stamp Corporation, a Delaware
corporation ("E-Stamp"), hereby irrevocably (to the fullest extent permitted by
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law) appoints and constitutes Xxxxx0.xxx, Inc., a Delaware corporation
("Learn2") the attorney and proxy of the undersigned, with full power of
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substitution and resubstitution, to the full extent of the undersigned's voting
rights with respect to (a) the outstanding shares of common stock, $0.001 par
value, of E-Stamp (the "E-Stamp Common Stock") or any other capital stock of E-
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Stamp (collectively with the E-Stamp Common Stock, the "Capital Stock") owned of
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record by the undersigned as of the date of this proxy, which shares are
specified on the final page of this proxy, and (b) any and all other shares of
Capital Stock of E-Stamp which the undersigned may acquire on or after the date
hereof. Upon the execution hereof, all prior proxies given by the undersigned
with respect to any of the Capital Stock are hereby revoked, and the undersigned
agrees that no subsequent proxy will be given with respect to any of the Capital
Stock.
This proxy is (i) irrevocable, (ii) coupled with an interest, (iii)
granted in connection with the execution and delivery of the Voting Agreement
dated as of the date hereof among Learn2, the undersigned and certain other
stockholders of E-Stamp (the "Voting Agreement"), and (iv) granted in
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consideration of Learn2 entering into the Agreement and Plan of Merger dated as
of the date hereof between Learn2 and E-Stamp (the "Merger Agreement") which
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provides, among other things, for the merger (the "Merger") of Learn2 with and
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into E-Stamp pursuant to the terms and conditions thereof.
The proxy named above (and its successors) will, prior to the
Termination Date (as defined in the Voting Agreement), be empowered, and may
exercise this proxy, to vote the Capital Stock at any meeting of the
stockholders of E-Stamp, however called, or in connection with any solicitation
of written consents from stockholders of E-Stamp:
(i) in favor of the Merger and the adoption of the Merger
Agreement;
(ii) against approval or adoption of any transaction involving
(A) the sale or transfer of all or substantially all of the Capital Stock,
whether by merger, consolidation or other business combination, (B) a sale or
transfer of all or substantially all of the assets of E-Stamp or its
Subsidiaries, (C) a reorganization, recapitalization or liquidation of E-Stamp
or its Subsidiaries or (D) any amendment to E-Stamp's governing instruments
creating any new class of securities of E-Stamp or otherwise affecting the
rights of any class of security as currently in effect; and
(iii) against approval or adoption of resolutions or actions
which would cause the conditions to closing of the Merger, as set forth in the
Merger Agreement, not to be satisfied.
The undersigned may vote the Capital Stock on all other matters.
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This proxy shall be binding upon the representatives, successors and
assigns of the undersigned (including any transferee of any of the Capital
Stock).
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the valid termination of the Voting
Agreement.
Date: April 19, 2001
By:____________________________________________
Print Name:____________________________________
Number of shares of E-Stamp Common Stock owned
of record as of the date of this proxy:
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