EXHIBIT 99.4
EXECUTED COPY
VOTING AGREEMENT
VOTING AGREEMENT dated September 9, 2003 (as amended, this "Voting
Agreement") is by and between Lightspan, Inc., a Delaware corporation
("Company"), and Xxxx Xxxxxx (the "Stockholder").
RECITALS
WHEREAS, concurrent with the execution of this Voting Agreement,
Company, PLATO Learning, Inc., a Delaware corporation (the "Buyer"), and LSPN
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Buyer
("Merger Sub"), have entered into an Agreement and Plan of Merger dated of even
date herewith (as amended from time to time, the "Merger Agreement") pursuant to
which the Merger Sub will be merged with and into the Company, with the Company
continuing as the surviving corporation and as a direct wholly-owned subsidiary
of Buyer (the "Merger");
WHEREAS, The Stockholder is the record and beneficial owner of
43,730 issued and outstanding shares of common stock, par value $0.01 per share,
of Buyer (the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Company desires that the Stockholder agree, and be willing to
agree, to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Stockholder, intending to be legally bound,
hereby agree as follows:
1. Certain Definitions. In addition to the terms defined elsewhere herein,
capitalized terms used and not defined herein have the respective meanings
ascribed to them in the Merger Agreement. For purposes of this Voting Agreement:
(a) "Affiliate" means, as to any specified Person, (i) any
stockholder, equity holder, officer, or director of such Person and their
family members or (ii) any other Person which, directly or indirectly,
controls, is controlled by, employed by or is under common control with,
any of the foregoing. For the purposes of this definition, "control" means
the possession of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" as within the meanings of Section 13(d)(3) of the
Exchange Act.
(c) "Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
2. Disclosure. The Stockholder hereby agrees to permit the Company and
Buyer to publish and disclose in the S-4 Registration Statement and the Proxy
Statement (including all documents and schedules filed with the SEC), and any
press release or other disclosure document which Buyer and the Company
reasonably determine to be necessary or desirable in connection with the Merger
and any transactions related thereto, the Stockholder's identity and ownership
of the Shares and the nature of the Stockholder's commitments, arrangements and
understandings under this Voting Agreement.
3. Voting of Buyer Stock. The Stockholder hereby irrevocably agrees that,
during the period commencing on the date hereof and continuing until the first
to occur of (a) the Effective Time or (b) the termination of the Merger
Agreement in accordance with its terms (the "Termination Date"), at any meeting
of the holders of the Shares, however called, or in connection with any written
consent of the holders of the Shares, he shall vote (or cause to be voted) the
Shares held of record or Beneficially Owned by the Stockholder, whether
heretofore owned or hereafter acquired: (i) in favor of approval of the issuance
of Buyer common stock pursuant to the Merger Agreement and any actions required
in furtherance thereof and hereof by the stockholders of the Buyer; and (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty, or any other obligation or agreement,
of the Buyer under the Merger Agreement or the Stockholder under this Voting
Agreement. The Stockholder agrees that the obligations under this Voting
Agreement are unconditional and will remain in full force and effect
notwithstanding that the Board of Directors of Buyer may have withdrawn or
amended its recommendation and approval of the Merger. Further, the Stockholder
will not enter into any agreement or understanding with any Person the effect of
which would be inconsistent with or violative of any provision contained in this
Section 3.
4. Grant of Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and appoints, Xxxx
X. Xxxxxx and Xxxx Xxxxxx in their respective capacities as officers of
Company and to any individual who shall hereafter succeed to any such
officer of the Company, the Stockholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Stockholder's Shares, or grant a consent or
approval in respect of such Shares as set forth in Section 3 hereof. The
Stockholder shall not have any claim against such proxy and
attorney-in-fact, for any action taken, decision made or instruction given
by such proxy and attorney-in-fact in accordance with this Voting
Agreement.
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(b) The Stockholder understands and acknowledges that the Company is
entering into the Merger Agreement in reliance upon such irrevocable
proxy. The Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given to secure the performance of the duties of the
Stockholder under this Voting Agreement. The Stockholder hereby affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. The Stockholder hereby ratifies and confirms
that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof.
5. Covenants, Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to, and agrees with, the Company as
follows:
(a) Ownership of Shares. The Stockholder is the sole record and
Beneficial Owner of the Shares. On the date hereof, the Shares constitute
all of the Shares owned of record or Beneficially Owned by the Stockholder
or with respect to which the Stockholder has voting power by proxy, voting
agreement, voting trust or other similar instrument. The Stockholder has,
and will have at any time from the date hereof until the date that Section
3 is no longer in effect, sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth
in this Voting Agreement, in each case with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws, and the terms of this Voting
Agreement.
(b) Authorization. The Stockholder has and will have the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Voting Agreement. The execution,
delivery and performance of this Voting Agreement by the Stockholder will
not violate any other agreement to which such Stockholder is a party
including, without limitation, any voting agreement, stockholders
agreement, voting trust, trust or similar agreement. This Voting Agreement
has been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement enforceable against the
Stockholder in accordance with its terms. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of
which the Stockholder is a trustee whose consent is required for the
execution and delivery of this Voting Agreement or the consummation by the
Stockholder of the transactions contemplated hereby. If the Stockholder is
married and the Stockholder's Shares constitute community property, this
Voting Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person is accordance with its terms.
(c) No Conflicts. (i) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Voting Agreement by the Stockholder
and the consummation by the Stockholder of the transactions contemplated
hereby and (ii) none of the execution and delivery of this Voting
Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder with any
of the provisions hereof shall (A) conflict with or result in any breach
of the organizational documents of the Stockholder (if applicable), (B)
result in a violation or breach of, or
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constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of its properties or assets may be bound, or (C)
violate any order, writ injunction, decree, judgment, order, statute, rule
or regulation applicable to the Stockholder or any of its properties or
assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Sections 3 and 4 hereof, the Stockholder's
Shares at all times during the term hereof will be Beneficially Owned by
the Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever.
(e) No Solicitation. The Stockholder agrees not to take any action
inconsistent with or in violation of Section 6.4 of the Merger Agreement.
(f) Restriction on Transfer, Proxies and Non-Interference. The
Stockholder shall not, directly or indirectly (i) except as contemplated
by the Merger Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Stockholder's Shares
or any interest therein, (ii) except as contemplated by this Voting
Agreement, grant any proxies or powers of attorney, deposit any Shares
into a voting trust or enter into a voting agreement with respect to the
Shares, or (iii) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Voting Agreement.
(g) Reliance by the Company. The Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Stockholder
Agreement.
6. Stop Transfer Legend.
(a) The Stockholder agrees and covenants to the Company that the
Stockholder shall not request that the Buyer register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's Shares, unless such transfer is made
in compliance with this Voting Agreement.
(b) Without limiting the covenants set forth in paragraph (a) above,
in the event of a stock dividend or distribution, or any change in Shares
by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, other than pursuant to the Merger, the
term "Shares" shall be deemed to refer to and include the Shares into
which or for which any or all of the Shares may be changed or exchanged
and appropriate adjustments shall be made to the terms and provisions of
this Voting Agreement.
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7. Further Assurances. From time to time, at the Company's request and
without further consideration, the Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Voting Agreement.
8. Stockholder Capacity. If the Stockholder is or becomes during the term
hereof a director or an officer of the Company, the Stockholder makes no
agreement or understanding herein in his capacity as such director or officer.
The Stockholder signs solely in his capacity as the record and Beneficial Owner
of the Stockholder's Shares.
9. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earlier of (a) the Termination Date or (b) the Effective Time.
10. Miscellaneous.
(a) Entire Agreement. This Voting Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Subject to Section 5(f) hereof, the Stockholder
agrees that this Voting Agreement and the obligations hereunder shall
attach to the Stockholder's Shares and shall be binding upon any Person to
which legal or Beneficial Ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation, the
Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any such transfer of Shares, the transferor shall remain
liable for the performance of all obligations under this Voting Agreement.
(c) Assignment. This Voting Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
Company in the case of an assignment by the Stockholder and by Stockholder
in the case of any assignment by the Company; provided that the Company
may assign, in its sole discretion, its rights and obligations hereunder
to any direct or indirect wholly owned subsidiary of the Company, but no
such assignment shall relieve the Company of its obligations hereunder if
such assignee does not perform such obligations.
(d) Amendment and Modification. This Voting Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written agreement
executed by the parties hereto affected by such amendment.
(e) Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and delivered (i) personally, (ii)
via telecopy, (iii) via overnight courier (providing proof of delivery) or
(iv) via registered or certified mail (return receipt requested). Such
notice shall be deemed to be given, dated and received (i) when so
delivered personally, via telecopy upon confirmation, or via overnight
courier
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upon actual delivery or (ii) two days after the date of mailing, if mailed
by registered or certified mail. Any notice pursuant to this section shall
be delivered as follows:
If to the Stockholder to the address set forth for the Stockholder on the
signature page to this Voting Agreement.
If to the Company:
Lightspan, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Cooley Godward LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
(f) Severability. Whenever possible, each provision or portion of
any provision of this Stockholder Agreement will be interpreted in such a
manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Voting Agreement is held to
be invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision of this Voting Agreement in such jurisdiction, and this Voting
Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(g) Specific Performance. The parties hereto agree recognize and
acknowledge that a breach by it of any covenants or agreements contained
in this Stockholder Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Voting Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
of any such rights, powers or remedies by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
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(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Voting Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof,
will not constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. This Voting Agreement is not
intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
(k) Governing Law. This Voting Agreement will be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflict of laws thereof.
(l) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN
CONNECTION WITH THIS VOTING AGREEMENT.
(m) Description Headings. The description headings used herein are
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Voting Agreement.
(n) Counterparts. This Voting Agreement may be executed in
counterparts, each of which will be considered one and the same Voting
Agreement and will become effective when such counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(o) Recovery of Attorney's Fees. In the event of any litigation
between the parties relating to this Voting Agreement, the prevailing
party shall be entitled to recover its reasonable attorney's fees and
costs (including court costs) from the non-prevailing party, provided that
if both parties prevail in part, the reasonable attorney's fees and costs
shall be awarded by the court in such a manner as it deems equitable to
reflect the relative amounts and merits of the parties' claims.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Voting Agreement to be duly executed as of the day and year first above written.
LIGHTSPAN, INC.
------------------------------------------
Name:
Title:
STOCKHOLDER:
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Xxxx Xxxxxx
c/o PLATO Learning, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
