EXHIBIT 2
VOTING AGREEMENT
This Voting Agreement dated as of June 3, 1998 (this "Agreement"), is
by and among Avalon Cable of Michigan Holdings Inc., a Delaware corporation
("Buyer"), Cable Michigan, Inc., a Pennsylvania corporation (the "Company"), and
Xxxxx 0 Xxxxxxx Xxxxxxxx, Xxx., a Delaware corporation ("LTTH").
WHEREAS, LTTH owns 3,330,121 shares of the Company's Common Stock,
$1.00 par value per share ("Common Stock") (all shares of Common Stock now owned
and which may hereafter be acquired by LTTH prior to the termination of this
Agreement shall be referred to herein as the "Shares");
WHEREAS, the Company, Buyer, and Avalon Cable of Michigan Inc., a
Delaware corporation and wholly owned subsidiary of Buyer ("Merger Subsidiary")
propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (as amended from time to time, the "Merger Agreement"), which provides,
among other things, that Merger Subsidiary will merge with the Company (the
"Merger") (this and other capitalized terms used and not defined herein shall
have the meanings given to such terms in the Merger Agreement);
WHEREAS, it is a condition to the willingness of Buyer to enter into
the Merger Agreement that LTTH agree, and in order to induce Buyer to enter into
the Merger Agreement, LTTH has agreed, to enter into this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE 1
VOTING OF SHARES
SECTION 1.1. Voting Agreement. LTTH hereby agrees that during the time
this Agreement is in effect, at any meeting of the stockholders of the Company,
however called, and in any action by consent of the stockholders of the Company,
LTTH shall vote its Shares: (i) in favor of the Merger, the Merger Agreement and
the other transactions contemplated by the Merger Agreement (collectively, the
"Transactions") with respect to which LTTH may be entitled to vote, (ii) against
any proposal for any recapitalization, merger, sale of assets or other business
combinations of or by the Company or any of its Subsidiaries other than the
Transactions, 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 Merger Agreement or that would
result in any of the conditions to the obligations of the Company under the
Merger Agreement not being fulfilled, and (iii) in favor of any other matter
relating to the consummation of the Transactions with respect to which LTTH may
be entitled to vote. LTTH acknowledges receipt and review of a copy of the
Merger Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF LTTH
LTTH hereby represents and warrants to Buyer and the Company as
follows:
SECTION 2.1. Authority Relative to this Agreement. LTTH has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by LTTH and the
consummation by LTTH of the transactions contemplated hereby have been duly and
validly authorized by LTTH, and no other proceedings on the part of LTTH are
necessary to authorize the execution and delivery of this Agreement or to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by LTTH and constitutes a legal, valid and binding obligation of
LTTH, enforceable against LTTH in accordance with its terms, except (x) as the
same may be limited by applicable bankruptcy, insolvency, moratorium or similar
laws of general application relating to or affecting creditors' rights,
including without limitation, the effect of statutory or other laws regarding
fraudulent conveyance and preferential transfers, and (y) for the limitations
imposed by general principles of equity.
SECTION 2.2. No Conflict.
(a) The execution and delivery of this Agreement by LTTH do not, and
the performance of this Agreement by LTTH will not, (i) conflict with or violate
the Certificate of Incorporation or By-laws of LTTH, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to LTTH
or by which LTTH's Shares are bound or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares pursuant to, any contract or agreement to
which LTTH is a party or by which LTTH or the Shares are bound, except, in the
case of clauses (ii) and (iii), for any such conflicts, violations, breaches,
defaults or other occurrences which would not prevent or materially delay the
performance by LTTH of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by LTTH do not, and
the performance of this Agreement by LTTH will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
federal, state, local or foreign regulatory body, except (i) filings with the
SEC under the Exchange Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or materially delay the performance by LTTH of its obligations
under this Agreement.
SECTION 2.3. Title to the Shares. LTTH is the owner of the Shares, free
and clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on voting rights, charges and other
encumbrances (collectively, "Liens") of any nature whatsoever. LTTH has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares. LTTH has sole voting power with respect to the
Shares.
ARTICLE 3
COVENANTS OF LTTH
SECTION 3.1. No Inconsistent Agreement. LTTH hereby covenants and
agrees that it shall not enter into any voting agreement or grant a proxy or
power of attorney with respect to the Shares which is inconsistent with this
Agreement.
SECTION 3.2. Transfer of Title. LTTH hereby covenants and agrees that,
LTTH will not transfer ownership of any of its Shares except where the
transferee agrees in writing to be bound by the terms and conditions of this
Agreement. Nothing else contained in this Agreement shall be construed to
prohibit any transfer permitted by this Section 3.2.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Termination. This Agreement shall terminate on the
earliest to occur of (i) the date of consummation of the Merger, (ii) the first
anniversary of the date hereof, and (iii) the date of the termination of the
Merger Agreement.
SECTION 4.2. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 4.3. Entire Agreement. This Agreement constitutes the entire
agreement among the parties, and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings, with respect to the subject
matter hereof.
SECTION 4.4. Amendment. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
SECTION 4.5. 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 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 hereto
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 to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 4.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
regardless of the laws that might otherwise govern under principles of conflicts
of law applicable hereto.
SECTION 4.7. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
SECTION 4.8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 4.9. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by telecopy with answerback, by express or overnight mail delivered
by a nationally recognized air courier (delivery charges prepaid) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows: (a) if to LTTH, to it at 0000 Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxxx 00000, Telecopy: (000) 000-0000, attention: Xxxxxxx X. Xxxxxxx,
with a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Telecopy: (000) 000-0000, attention: Xxxxxxx X. Xxxxxx, (b) if to the
Company, to it at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Telecopy:
(609) 734- 3830, attention: General Counsel, with a copy to Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (212)
450-4800, attention: Xxxxxxx X. Xxxxxx or (c) if to Buyer, to it c/o ABRY
Partners, L.P., 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Telecopy: (617)
859-2797, attention: Xxx Xxxxxxxx with a copy to Xxxxxxxx & Xxxxx, 000 Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Telecopy: (000) 000-0000, attention:
Xxxx Sugar Factor or to such other address as the party to whom notice is given
may have previously furnished to the others in writing in the manner set forth
above. Any notice or communication delivered in person or by telecopy shall be
deemed effective on delivery. Any notice or communication sent by air courier
shall be deemed effective on the first business day at the place at which such
notice or communication is received following the day on which such notice or
communication was sent. Any notice or communication sent by registered or
certified mail shall be deemed effective on the fifth business day at the place
from which such notice or communication was mailed following the day on which
such notice or communication was mailed.
SECTION 4.10. Assignments. This Agreement shall not be assigned by
operation of law or otherwise.
SECTION 4.11. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
AVALON CABLE OF MICHIGAN
HOLDINGS INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: President
CABLE MICHIGAN, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: President, Chief Operating
Officer
LEVEL 3 TELECOM HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Corporate
Legal
