EXHIBIT 2
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 30, 2001 (this "Agreement"), among those
shareholders of xxxxxxxxxxx.xxx inc. listed on Exhibit A hereto (each, a
"Shareholder" and, collectively, the "Shareholders"), Landmark Communications,
Inc., a Virginia corporation, and Landmark Ventures VII, LLC, a Delaware limited
liability company (with Landmark Communications, Inc., collectively,
"Landmark").
WHEREAS, each Shareholder beneficially owns the Common Shares, no par value
per share ("Company Common Shares"), of xxxxxxxxxxx.xxx inc., a Michigan
corporation (the "Company"), set forth opposite such Shareholder's name on
Exhibit A hereto (all such Company Common Shares, together with any other shares
of the Company which any Shareholder hereinafter acquires (including without
limitation any shares of Series C Preferred Stock, no par value per share), are
referred to as the "Subject Shares");
WHEREAS, Landmark and the Company are, simultaneously with the execution
hereof, entering into a Securities Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement");
WHEREAS, the Board of Directors of the Company has adopted the Purchase
Agreement, approved the transactions contemplated thereby, and recommended to
the shareholders of the Company the merger of the Company with and into its
subsidiary, coolsavings, inc., a Delaware corporation, pursuant to an Agreement
and Plan of Merger substantially in the form attached as Exhibit B hereto (the
"Merger");
WHEREAS, the Shareholders and Landmark desire to enter into this Agreement
to provide for, among other things, (1) the obligation of the Shareholders to
vote their respective Subject Shares to adopt the Purchase Agreement and approve
the transactions contemplated thereby and (2) the obligation of the Shareholders
to vote their respective Subject Shares to approve the Merger;
WHEREAS, each Shareholder acknowledges that Landmark is entering into the
Purchase Agreement in reliance on the representations, warranties, covenants and
other agreements of the Shareholders set forth in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
SECTION 1. Covenants of the Shareholders.
-----------------------------
(a) Voting of the Company Stock. Until the termination of this Agreement,
each Shareholder shall do the following:
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(1) be present, in person or represented by proxy, at each meeting
(whether annual or special, and whether or not an adjourned or postponed
meeting) of the shareholders of the Company, or any class thereof, however
called, or in connection with any written consent of the shareholders of
the Company, so that all the Subject Shares then entitled to vote may be
counted for the purposes of determining the presence of a quorum at such
meetings or in connection with such consent;
(2) at each such meeting held and with respect to each such written
consent, vote (or cause to be voted), or deliver a written consent (or
cause a consent to be delivered) covering, all the Subject Shares held by
such Shareholder (i) to adopt the Purchase Agreement and to approve the
transactions contemplated thereby, and any action necessary or desirable in
furtherance thereof, (ii) against any proposal for any recapitalization,
amalgamation, merger, sale of assets or other business combination of or by
the Company other than the transactions contemplated by the Purchase
Agreement, or any other action or agreement that would in any such case
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Purchase Agreement or that
would result in any of the conditions to the obligations of the Company
under the Purchase Agreement not being fulfilled, (iii) to adopt the
Approved Plan (as defined in the Purchase Agreement), and (iv) to approve
the Merger, and any action necessary or desirable in the furtherance
thereof; and
(3) use its best efforts (within its respective power) to cause a
majority in number representing 66 2/3% in value of the holders of the
outstanding Common Shares of the Company voting in person or by proxy at
the Company Shareholders Meeting to adopt the Purchase Agreement and to
approve the transactions contemplated thereby.
Nothing contained in this Agreement shall in any way preclude or in any manner
restrict a Shareholder's designee who is serving on the Company's Board of
Directors from discharging that designee's fiduciary duties as a director of the
Company in accordance with the terms of the Purchase Agreement. Each shareholder
is executing this Agreement solely in his or her capacity as the record or
beneficial owner of the Subject Shares held by such Shareholder.
(b) No Inconsistent Agreements. Until the termination of this
Agreement, each Shareholder shall not enter into any voting agreement or grant a
proxy or power of attorney with respect to the Subject Shares which is
inconsistent with this Agreement.
(c) Review of Purchase Agreement. Each Shareholder acknowledges receipt and
review of a copy of the Purchase Agreement.
(d) Transfer.
--------
(1) During the term of this Agreement, each Shareholder shall not
transfer record ownership or beneficial ownership, or both, of any Subject
Shares without the prior written consent of Landmark. Notwithstanding
anything to the
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contrary, each Shareholder shall be free to transfer record ownership or
beneficial ownership, or both, of any Subject Shares to an entity
controlling, controlled by, or under common control with, such Shareholder,
provided that such transferee agrees in writing to be bound by this
Agreement with respect to such transferred Subject Shares. For elimination
of doubt, any transfer or proposed transfer pursuant to the preceding
sentence shall not be deemed an "Acquisition Proposal" for purposes of this
Agreement.
(2) The certificates evidencing the Subject Shares shall bear the
following legend reflecting the restrictions on the transfer of such
securities contained in this Agreement:
"The securities evidenced hereby are subject to the terms of that
certain Voting Agreement, dated as of July 30, 2001, by and among
Landmark Communications, Inc., Landmark Ventures VII, LLC, and certain
investors identified therein, which includes certain voting agreements
and restrictions on transfer. A copy of this Agreement has been filed
with the Secretary of the Company and is available upon request."
As promptly as practicable after the date hereof, the Shareholders
shall deliver all certificates representing any Subject Shares to the
Company to enable the Company to place the foregoing legend on such
certificates.
(3) For the purposes of this Agreement, the term "transfer" means a
sale, an assignment, a grant, a transfer, a pledge, the creation of a lien
or other disposition (including a Hedging Transaction) of any Subject
Shares or any interest of any nature in any Subject Shares, including,
without limitations, the "beneficial ownership" of such Subject Shares (as
determined pursuant to Rule 13d-3 under the Exchange Act). For purposes of
this Agreement, a "Hedging -------- Transaction" means any short sale
(whether or not against the box) or any purchase, sale or grant of any
right ----------- (including, without limitation, any put or call option)
with respect to any security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its
value from the Subject Shares.
(e) No Revocation. The voting agreements contained herein are coupled with
an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with the terms of this Agreement.
SECTION 2. Additional Covenants of the Shareholders.
----------------------------------------
(a) Acquisition Proposal. Each Shareholder shall not, and shall cause its
affiliates (other than the Company), the officers and directors of it and such
affiliates, and its and such affiliate's employees, agents and representatives
(including any investment banker, attorney or accountant retained by it or any
of such Affiliates) not to, directly or indirectly, (i) initiate, solicit,
encourage or knowingly facilitate (including by way of furnishing information)
any
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inquiries or the making of any proposal or offer with respect to a merger,
amalgamation, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company, or any purchase or sale of 20% or more of the
consolidated assets of the Company, taken as a whole, or any purchase or sale
of, or tender or exchange offer for, the equity securities of the Company that,
if consummated, would result in any Person (or the stockholders of such Person)
beneficially owning securities representing 20% or more of the total voting
power of the Company (or of the surviving or continuing parent entity in such
transaction) (any such proposal, offer or transaction (other than a proposal or
offer made by Landmark) being hereinafter referred to as an "Acquisition
Proposal") or (ii) have any discussion with or provide any information or data
to any Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement an Acquisition Proposal. For the purposes hereof, a
"Person" shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
SECTION 3. Representations and Warranties of the Shareholders. Each
Shareholder severally represents and warrants to Landmark as follows:
(a) Authority. If such Shareholder is an individual, such Shareholder has
full legal capacity and authority to enter into this Agreement and all
instruments, documents and agreements contemplated hereby to be executed by or
on behalf of such Shareholder and to carry out such Shareholder's obligations
hereunder. This Agreement and all instruments, documents and agreements
contemplated hereby to be executed by or on behalf of such Shareholder have been
or will be at the Closing duly executed and delivered by such Shareholder and
constitute, or will constitute, the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder, except to the extent
enforceability is limited by applicable bankruptcy, reorganization, insolvency
and similar laws from time to time in effect and subject to general principles
of equity and judicial discretion.
(b) Existence and Power. If such Shareholder is not an individual, that
such Shareholder is a validly existing company, duly organized and in good
standing under the laws of its jurisdiction of organization. It has all
requisite company power and authority to execute and deliver this Agreement.
(c) No Conflicts; Approvals. Neither the execution, delivery and
performance by such Shareholder of this Agreement, nor the consummation by such
Shareholder of the transactions contemplated hereby, will (a) violate, conflict
with or result in a breach of any agreement, contract or other instrument to
which such Shareholder is a party, (b) violate or conflict with any order,
decree, law, rule or regulation applicable to such Shareholder or by which any
property or asset of such Shareholder is bound, or (c) require any consent,
approval, authorization or other order of, action by, filing with, or
notification to, any federal, state, municipal, foreign or other court or
governmental body or agency, or any other regulatory body or Person by such
Shareholder.
(d) Authorization; Contravention. If such Shareholder is not an individual,
that the execution and delivery by it of this Agreement and the performance by
it of its
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obligations hereunder have (1) been duly authorized by all necessary corporate
action and (2) do not and will not conflict with or result in a violation of,
(A) any provision of its certificate of incorporation or bylaws, or similar
organizational document, or (B) any loan or credit agreement, note, mortgage,
bond, indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to it, the Subject Shares or any of its
other properties or assets.
(e) Binding Effect. If such Shareholder is not an individual, this
Agreement constitutes, or when executed and delivered by it will constitute, a
valid and binding obligation of it, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally, by general equity principles, (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by an implied covenant of good faith and fair dealing.
(f) Ownership. Such Shareholder is the record owner or beneficial owner of
the Subject Shares listed beside its name in Exhibit A, free and clear of all
liens, security interests, claims, pledges, options, rights of first refusal,
limitations on voting rights, charges and other encumbrances of any nature
whatsoever except as contemplated by the Purchase Agreement or any Transaction
Documents set forth therein. As of the date of this Agreement, it does not own
beneficially or of record any equity securities of the Company other than the
Subject Shares set forth beside its name on Exhibit A. It has not appointed or
granted any proxy which is still effective with respect to the Subject Shares.
It has sole voting power or power to direct the vote of the Subject Shares set
forth beside its name on Exhibit A and on the record date and the date of the
Company Shareholders Meeting at which the Purchase Agreement, the transactions
contemplated thereby, and the Merger shall be presented for approval (or the
date of any written consent in lieu thereof), it will have sole voting power or
power to direct the vote of all its Subject Shares.
(g) Litigation. There is no action, suit, investigation, complaint or other
proceeding pending against such Shareholder or, to its knowledge, threatened
against it or any other Person that restricts in any material respect or
prohibits (or, if successful, would restrict or prohibit) the exercise by such
Shareholder or its beneficiary of such Shareholder's rights hereunder or the
performance by such Shareholder of its obligations hereunder.
SECTION 4. Miscellaneous Provisions.
------------------------
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (1) on the date of delivery if delivered
personally, or by telecopy or telefacsimile, upon confirmation of receipt, (2)
on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (3) on the seventh business day
following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be given
to Landmark at its address stated in the Purchase Agreement and all notices to
each of the Shareholders shall be given at its address in the register of
shareholders of the Company, or, in each case, at any other address as the party
may specify for this purpose by notice to the other parties.
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(b) No Waivers; Remedies; Specific Performance.
------------------------------------------
(1) No failure or delay by Landmark in exercising any right, power or
privilege under this Agreement shall operate as a waiver of the right,
power or privilege. A single or partial exercise of any right, power or
privilege shall not preclude any other or further exercise of the right,
power or privilege or the exercise of any other right, power or privilege.
The rights and remedies provided in this Agreement shall be cumulative and
not exclusive of any rights or remedies provided by law.
(2) In view of the uniqueness of the agreements contained in this
Agreement and the transactions contemplated hereby and thereby and the fact
that Landmark would not have an adequate remedy at law for money damages in
the event that any obligation under this Agreement is not performed in
accordance with its terms, each of the Shareholders therefore agrees that
Landmark shall be entitled to specific enforcement of the terms of this
Agreement (without the showing of special, imminent or irreparable damages
and without any obligation to post bond or other security or surety) in
addition to any other remedy to which Landmark may be entitled, at law or
in equity, and if Landmark shall institute any action or proceeding to
enforce the provisions hereof, the Shareholders hereby waive the claim or
defense that Landmark has an adequate remedy at law.
(c) Amendment, Etc. No amendment, modification, termination, or waiver of
any provision of any this Agreement, and no consent to any departure by any
party hereto or Landmark from any provision of this Agreement, shall be
effective unless it shall be in writing and signed and delivered by all the
Shareholders and Landmark and, solely with respect to Section 2, this Section
4(c) and Section 4(d), Landmark, and then it shall be effective only in the
specific instance and for the specific purpose for which it is given.
(d) Successors and Assigns; Third Party Beneficiaries.
-------------------------------------------------
(1) No party shall assign any of its rights or delegate any of its
obligations under this Agreement. Any assignment or delegation in
contravention of this Section 4(d) shall be void ab initio and shall not
relieve the assigning or delegating party of any obligation under this
Agreement.
(2) The provisions of this Agreement shall be binding upon and inure
solely to the benefit of the parties hereto and their respective permitted
heirs, executors, legal representatives, successors and assigns, and no
other person, except that the Company shall be a third party beneficiary
under this Agreement with respect to Section 2, Section 4(c) and this
Section 4(d) and shall be entitled to enforce its rights hereunder
directly.
(e) Scope. References in this Agreement to the Purchase Agreement shall not
be deemed to include any amendments to the Purchase Agreement, unless the
parties hereto have agreed in writing to such inclusion.
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(f) Governing Law. This Agreement and all rights, remedies, liabilities,
powers and duties of the parties hereto, shall be governed in accordance with
the laws of the State of New York without regard to principles of conflicts of
laws.
(g) Severability of Provisions. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
(h) Headings and References. Article and section headings herein are
included for the convenience of reference only and do not constitute a part of
this Agreement for any other purpose. References to parties, express
beneficiaries, articles and sections in this Agreement are references to parties
to or the express beneficiaries and sections of this Agreement, unless the
context shall require otherwise. Any of the terms defined in this Agreement may,
unless the context otherwise requires, be used in the singular or the plural,
depending on the reference. The use in this Agreement of the word "include" or
"including," when following any general statement, term or matter, shall not be
construed to limit such statement, term, or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
(i) Entire Agreement. This Agreement embodies the entire agreement and
understanding of the Shareholders and Landmark, and supersedes all prior
agreements or understandings, with respect to the subject matters of this
Agreement.
(j) Survival. Except as otherwise specifically provided in this Agreement,
each representation, warranty and covenant of a party contained herein shall
remain in full force and effect, notwithstanding any investigation or notice to
the contrary or any waiver by any other party or beneficiary of a related
condition precedent to the performance by the other party or beneficiary of an
obligation under this Agreement. No representation, warranty or covenant shall
survive termination of this Agreement pursuant to Section 4(l) below; provided,
however, if any party has made a written claim for breach prior to the
expiration of any applicable survival period, then in such case the breaching
party shall remain liable for any losses resulting from, arising out of or
related to the asserted breach.
(k) Submission to Jurisdiction; Waivers. Each Shareholder and Landmark
irrevocably agree that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereto
brought by another party hereto or its successors or assigns may be brought and
determined in the courts of the State of New York, and each Shareholder and
Landmark hereby irrevocably submit with regard to any such
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action or proceeding for itself and in respect to its property, generally and
unconditionally, to the non-exclusive jurisdiction of the aforesaid courts. Each
Shareholder and Landmark hereby irrevocably waive, and agree not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure to serve process in accordance with the rules of such
courts, (b) that it or its property is exempt or immune from jurisdiction of any
such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (c) to the fullest extent
permitted by applicable law, that (i) the suit, action or proceeding in any such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
(l) Termination. Unless terminated earlier by mutual agreement of the
parties, this Agreement shall terminate upon the first to occur of (i)
consummation of the transactions contemplated under the Purchase Agreement or
(ii) the termination of the Purchase Agreement pursuant to its terms or (iii)
January 31, 2002.
(m) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if all
signatures were on the same instrument.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
LANDMARK COMMUNICATIONS, INC.
By: /s/ Xxx X. Xxxxxxxx, III
-----------------------------------------
Name: Xxx X. Xxxxxxxx, III
Title: Executive Vice President
LANDMARK VENTURES VII, LLC
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
LEND LEASE INTERNATIONAL PTY. LIMITED
[ACN# 000489109]
By: /s/ Xxxx Xxxxxxx, under Power of Attorney
-----------------------------------------
Name: Xxxx Xxxxxxx, under Power of
Attorney
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
XXXXXX X. XXXXXX REVOCABLE LIVING TRUST
DATED 3/3/98
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
XXXXXX X. XXXXXX L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
XXXXXXX XXXX
/s/ Xxxxxxx Xxxx
---------------------------------------------
MOOG INVESTMENT PARTNERS LP
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: General Partner
XXXXXX X. XXXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------------
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
---------------------------------------------
HLBL FAMILY PARTNERS LP
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing General Partner
XXXX AND XXXXX XXXXX FOUNDATION
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: President
XXXXXXX X. XXXXX REVOCABLE LIVING TRUST
DATED 3/21/90
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
XXXXXXX XXXXX -- CHARITABLE REMAINDER TRUST
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
XXXXXXX XXXXX LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
XXXXXXXXXXX.XXX INC., as third party beneficiary
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: President
EXHIBIT A
---------
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Lend Lease International Pty. Limited 10,889,636
[ACN# 000489109]
------------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx* 334,000
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Xxxxxx X. Xxxxxx Revocable Living Trust 4,382,315
dated 3/3/98; Xxxxxx X. Xxxxxx as Trustee
------------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx L.L.C. 172,500
------------------------------------------ ------------------------------------
Xxxxxxx Xxxx* 64,500
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Moog Investment Partners LP 238,268
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Xxxxxx X. Xxxxxxxxxx* 147,724
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Xxxx X. Xxxxx* 57,500
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HLBL Family Partners LP 1,004,023
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Xxxx and Xxxxx Xxxxx Foundation 1,500
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Xxxxxxx Xxxxx Limited Partnership 139,700
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Xxxxxxx X. Xxxxx Revocable Living Trust 7,156,413
dated 3/21/90
------------------------------------------ ------------------------------------
Xxxxxxx Xxxxx - Charitable Remainder 75,000
Trust
------------------------------------------ ------------------------------------
------------------------------------------ ------------------------------------
TOTAL 24,663,079
------------------------------------------ ------------------------------------
Percent of outstanding 63.14%
------------------------------------------ ------------------------------------
* Shares may be held in street name.
