Exhibit 10.15
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into this
___th day of April, 2001, by and between E-Stamp Corporation, a Delaware
corporation ("E-STAMP"), and each of the undersigned stockholders (each a
"LEARN2 STOCKHOLDER" and collectively, the "LEARN2 STOCKHOLDERS") of Xxxxx0.xxx,
Inc., a Delaware corporation ("LEARN2").
WHEREAS, the Learn2 Stockholders own of record and/or
beneficially the shares of common stock, $.01 par value, of Learn2 ("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 the Common
Stock;
WHEREAS, E-Stamp and Learn2 have contemporaneously with the
execution of this Agreement entered into an Agreement and Plan of Merger (the
"MERGER AGREEMENT"), dated as of the date hereof, which provides, among other
things, for the merger (the "MERGER") of Learn2 with and into E-Stamp pursuant
to the terms and conditions thereof; and
WHEREAS, as an essential condition and inducement to E-Stamp
entering into the Merger Agreement, the parties to the Merger Agreement have
required that the Learn2 Stockholders agree, and the Learn2 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 Learn2 Stockholder covenants and agrees that from the
date of this Agreement until the Termination Date (as defined in Section 16
hereof), such Learn2 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
any other capital stock of Learn2 (including all options, warrants and other
rights to acquire shares of Common Stock or Learn2 capital stock) (together, the
"CAPITAL STOCK") or any other voting interests in Learn2 now owned or hereafter
acquired beneficially or of record by such Learn2 Stockholder without the
consent of E-Stamp, PROVIDED, HOWEVER, that the foregoing requirements shall not
prohibit any Transfer of Capital Stock to any person or entity that does not
prevent the Learn2
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 Learn2 Stockholder hereby agrees and consents to the
entry of stop transfer instructions by Learn2 against the transfer of any shares
of the Capital Stock consistent with the terms of SECTION 2(A) hereof.
SECTION 3. VOTING
(a) Each Learn2 Stockholder hereby agrees to appear, or cause
the holder of record on any applicable record date (the "RECORD HOLDER") to
appear, in person or by proxy, for the purpose of obtaining a quorum at any
annual or special meeting of stockholders of Learn2 and at any adjournment
thereof for the purpose of voting on the Merger Agreement and the transactions
contemplated thereby (a "MEETING").
(b) Each Learn2 Stockholder further agrees that at any such
Meeting such Learn2 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 Learn2 directly or indirectly owned or hereafter acquired
beneficially or of record by such Learn2 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 Learn2 at which or in connection with which the Merger
and the Merger Agreement are submitted for the consideration and vote of the
stockholders of Learn2;
(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 Learn2 or its
Subsidiaries, (C) a reorganization, recapitalization or liquidation of Learn2 or
its Subsidiaries, or (D) any amendment to Learn2's governing instruments
creating any new class of securities of Learn2 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 Learn2 Stockholder revokes any and all previous proxies
with respect to shares of the Capital Stock owned beneficially and/or of record
by such Learn2 Stockholder and agrees not to
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grant any proxy with respect to the Capital Stock and any other voting interests
in Learn2 owned or hereafter acquired beneficially or of record by such Learn2
Stockholder.
SECTION 4. PROXY; FURTHER ASSURANCES
(a) Contemporaneously with the execution of this Agreement:
(i) each Learn2 Stockholder has delivered to E-Stamp 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"); and (ii) each Learn2 Stockholder has caused to be delivered to
E-Stamp 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 Learn2 Stockholder shall, at E-Stamp's own expense,
execute such further documents and instruments as may reasonably be required to
vest in E-Stamp the power to carry out and give effect to the provisions of this
Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF EACH LEARN2 STOCKHOLDER
Each Learn2 Stockholder hereby, severally and not jointly,
represents and warrants to E-Stamp as follows:
(a) Such Learn2 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 owned by such Learn2 Stockholder are the only shares of voting Capital
Stock of Learn2 or any other voting interests in Learn2 owned beneficially or of
record by such Learn2 Stockholder, and except as set forth in SCHEDULE A, such
Learn2 Stockholder does not own any other options, warrants or rights to acquire
shares of any class of capital stock of Learn2 or any other voting interests in
Learn2. Such Learn2 Stockholder has the sole power respecting voting and
transfer of such Learn2 Stockholder's shares of the Capital Stock.
SECTION 6. SPECIFIC PERFORMANCE
Each Learn2 Stockholder acknowledges and agrees that there
would be no adequate remedy at law for E-Stamp and if such Learn2 Stockholder
fails to perform any of such Learn2 Stockholder's obligations hereunder, and
accordingly agrees that E-Stamp, 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 Learn2 Stockholder under this Agreement
in accordance with the terms and conditions of this Agreement in any court of
the United States or
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any State thereof having jurisdiction. Each Learn2 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 Learn2 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 Learn2
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 Learn2, 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 Learn2 Stockholder
specifically agrees that the obligations of such Learn2 Stockholder hereunder
shall not be terminated by operation of law, whether by death or incapacity of
such Learn2 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.
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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 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 a Learn2 Stockholder:
To such Stockholder's address
or telecopier number as set forth
on SCHEDULE A attached hereto.
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.
Telecopier No.: (000) 000-0000
If to E-Stamp:
E-Stamp Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
Facsimile: (000) 000-0000
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with a copy (which shall 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
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 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 Learn2 Stockholder and each Learn2 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 a Learn2 Stockholder
who is an officer or director of Learn2 from exercising, in such individual's
capacity as an officer or director of Learn2, what such Learn2 Stockholder
believes in good faith to be his or her fiduciary duties as an officer or
director of Learn2 or to the stockholders of Learn2, and (ii) and no action or
inaction required hereby shall require a Learn2 Stockholder who is an officer or
director of Learn2 to take any action or refrain from taking any
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action, in such individual's capacity as an officer or director of Learn2 that
such Learn2 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 Learn2 to the
stockholders of Learn2.
SECTION 18. NO REQUIREMENT TO EXERCISE
Notwithstanding anything to the contrary in this Agreement, a
Learn2 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 a Learn2 Stockholder as of the date of this Agreement or of which a Learn2
Stockholder acquires ownership during the period from the date of this Agreement
through its termination pursuant to Section 16.
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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.
E-STAMP CORPORATION
By:
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Name:
Title:
LEARN2 STOCKHOLDERS
By:
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Name:
Title:
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE.]
By:
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Name:
By:
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Name:
By:
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Name:
By:
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Name:
By:
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Name:
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE.]
SCHEDULE A
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LEARN2 STOCKHOLDER NAME, ADDRESS AND COMMON STOCK OWNED OF RECORD COMMON STOCK OWNED BENEFICIALLY (1)
TELEPHONE NUMBER
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(1) [All are shares of Common Stock issuable upon the exercise of Options
as of the date of this Agreement.]
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Xxxxx0.xxx, Inc., a Delaware
corporation ("LEARN2"), hereby irrevocably (to the fullest extent permitted by
law) appoints and constitutes E-Stamp Corporation, a Delaware corporation
("E-STAMP") the attorney and proxy of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's voting
rights with respect to (a) the outstanding shares of common stock, $.01 par
value, of Learn2 (the "LEARN2 COMMON STOCK") or any other capital stock of
Learn2 (collectively with the Learn2 Common Stock, the "CAPITAL STOCK") owned of
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 Learn2 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 E-Stamp and the undersigned and
certain other stockholders of Learn2 (the "VOTING AGREEMENT"), and (iv) granted
in consideration of E-Stamp entering into the Agreement and Plan of Merger dated
as of the date hereof between E-Stamp and Learn2 (the "MERGER AGREEMENT"), which
provides, among other things, for the merger (the "MERGER") of Learn2 with and
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 Learn2, however called, or in connection with any solicitation
of written consents from stockholders of Learn2:
(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 Learn2 or its
Subsidiaries, (C) a reorganization, recapitalization or liquidation of Learn2 or
its Subsidiaries, or (D) any amendment to Learn2's governing instruments
creating any new class of securities of Learn2 or otherwise affecting the rights
of any class of security as currently in effect; and
(iii) against approval or adoption of resolutions or
actions 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.
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 __, 2001
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Stockholder's Name
Number of shares of Learn2 Common Stock
owned of record as of the date of this
proxy:
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