EXHIBIT 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into this 19th day
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of April, 2001, by and between E-Stamp Corporation, a Delaware corporation ("E-
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Stamp"), and each of the undersigned stockholders (each a "Learn2 Stockholder"
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and collectively, the "Learn2 Stockholders") of ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
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corporation ("Learn2").
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WHEREAS, the Learn2 Stockholders own of record and/or beneficially the
shares of common stock, $.01 par value, of Learn2 ("Common Stock") set forth
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opposite their respective names on Schedule A hereto and desire to enter into
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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
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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 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
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stock of Learn2 (including all options, warrants and other rights to acquire
shares of Common Stock or Learn2 capital stock) (together, the "Capital Stock")
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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.
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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,
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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 Learn2 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 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
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permitted by law, with respect to the shares referred to therein (the "Proxy");
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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
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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
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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
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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.
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
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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.
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with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to E-Stamp:
E-Stamp Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 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
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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.
[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.
E-STAMP CORPORATION
By:_____________________________
Name:
Title:
LEARN2 STOCKHOLDERS
By:____________________________
Name:
By:____________________________
Name:
By:____________________________
Name:
[Signatures continued on the following page.]
By:____________________________
Name:
By:____________________________
Name:
By:____________________________
Name:
By:___________________________
Name:
By:____________________________
Name:
[Signatures continued on the following page.]
SCHEDULE A
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Learn2 Stockholder Name, Common Stock Owned of Common Stock Owned
Address and Telephone Record Beneficially/1/
Number
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_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
_________________________________ ____________________________________ _______________________________
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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 ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation ("Learn2"), hereby irrevocably (to the fullest extent permitted by
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law) appoints and constitutes E-Stamp Corporation, a Delaware corporation ("E-
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Stamp") 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, $.01 par
value, of Learn2 (the "Learn2 Common Stock") or any other capital stock of
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Learn2 (collectively with the Learn2 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 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
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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
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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 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 19, 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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