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AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment"), dated
as of February 20, 2001, by and among PLATO LEARNING, INC., a Delaware
corporation ("Parent"), WILC ACQUISITION CORPORATION, a Delaware corporation and
a wholly-owned subsidiary of Parent ("Merger Sub"), and WASATCH INTERACTIVE
LEARNING CORPORATION, a Washington corporation (the "Company"). Parent, Merger
Sub and the Company are referred to collectively herein as the "Parties".
RECITALS
WHEREAS, Parent, Merger Sub and the Company are parties to that certain
Agreement and Plan of Merger, dated as of January 31, 2001 (the "Agreement"),
pursuant to which the parties thereto have agreed, among other things, to merge
Merger Sub with and into the Company;
WHEREAS, Parent, Merger Sub and the Company have mutually agreed to
restructure the merger as contemplated by the Agreement and merge the Company
with and into the Merger Sub, and wish to amend the Agreement to reflect such
restructuring;
WHEREAS, Parent, Merger Sub and the Company also desire to amend certain
other provisions of the Agreement; and
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements set forth herein, the Parties hereby agree as follows:
1. Amendments.
(a) Section 1.1 is hereby deleted in its entirety and replaced with the
following:
"1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General
Corporation Law, as amended (the "DGCL"), and the Washington Business
Corporation Act, as amended (the "WBCA"), at the Effective Time, the
Company shall be merged with and into the Merger Sub, the separate
corporate existence of the Company shall thereupon cease and the Merger Sub
shall continue as the surviving corporation and shall succeed to and assume
all the rights and obligations of the Company in accordance with the DGCL
and the WBCA. The Merger Sub, as the surviving corporation after the
consummation of the Merger, is sometimes hereinafter referred to as the
"Surviving Corporation." The name of the Surviving Corporation shall be
changed at the Effective Time (as hereafter defined) or as soon as
practicable following the Effective Time to "Wasatch Interactive Learning
Corporation".";
(b) Section 6.1(b)(ii) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(ii) except for shares to be issued upon (A) exercise of outstanding
options as contemplated pursuant to Section 6.14, (B) exercise of
outstanding warrants, or (C) issuance or delivery of the number of Company
Shares to National Financial Communications Corp, doing business as OTC
Financial Network, a Massachusetts corporation ("NFCC"), in connection with
the Company's termination of that certain Consulting Agreement by and
between the Company and NFCC, dated as of November 6, 2000 (the "NFCC
Agreement"), or any acceleration thereof, determined in accordance with the
terms and conditions thereof, issue, deliver, sell, dispose of, pledge or
otherwise encumber, or authorize or propose the issuance, sale, disposition
or pledge or other encumbrance of (1) any additional shares of capital
stock of any class, or any securities or rights convertible into,
exchangeable for, or evidencing the right to subscribe for any shares of
capital stock, or any rights, warrants, options, calls, commitments or any
other agreements of any character to purchase or acquire any shares of
capital stock or any securities or rights convertible into, exchangeable
for, or evidencing the right to subscribe for, any shares of capital stock,
or (2) any other securities in respect of, in lieu of, or in substitution
for, shares outstanding on the date of this Agreement;";
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(c) Section 6.1(b)(viii) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(viii) except for (A) the incurrence of indebtedness as a result of
the issuance, transfer or reissuance of the Debentures and Debenture
Warrants to the Parent or Merger Sub, or any transfer thereof, in
accordance with Sections 6.16 and 6.22, or (B) other than in the ordinary
course of business consistent with past practice, incur any indebtedness
for borrowed money or guarantee any such indebtedness or make any loans,
advances or capital contributions to, or investments in, any other
Person;";
(d) Section 6.1(b)(xii) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(xii) enter into, amend, modify, terminate (partially or completely),
grant any waiver under or give any consent with respect to any contract or
license not consistent with past practices of the Company except pursuant
to this Section 6.1(b);";
(e) Section 6.16 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"6.16 Debentures. The Company shall (i) comply with all redemption
obligations of the Debentures (including, without limitation, the monthly
redemption of US$50,000 of principal and accrued interest) and (ii) (A) use
reasonable efforts to redeem in full all amounts due and owing (including,
without limitation, the outstanding principal and interest) to the holders
of the Debentures, each as of and including the date of repayment in
accordance with the terms of the Debenture or pursuant to terms and
conditions reasonably satisfactory to Parent or Merger Sub; provided,
however, that the Company's obligations to make any redemption in excess of
existing obligations of the Company shall be subject to the availability of
resources therefor provided by any Person, including the Parent or Merger
Sub, on terms reasonably satisfactory to the parties hereto and on terms no
less favorable to the Company than those currently in force with respect to
the Debentures and Debenture Warrants, or (B) permit a sale or transfer of
the Debentures and Debenture Warrants to Parent or Merger Sub pursuant to
terms and conditions between Parent or Merger Sub and the current holder of
the Debentures and Debenture Warrants reasonably satisfactory to Parent or
Merger Sub.";
(f) Section 6.22 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"6.22 Purchase or Assumption of Debentures and Debenture Warrants by
Parent or Merger Sub.
(a) At any time after the date of this Agreement prior to the
termination of this Agreement, the Parent or Merger Sub may, in the
Parent's sole discretion, purchase, assume or accept by sale or transfer
the Debentures and Debenture Warrants and all amounts due and owing
thereunder, on terms and conditions between Parent or Merger Sub and the
current holder of the Debentures and Debenture Warrants satisfactory to the
Parent or Merger Sub, as the case may be.
(b) In the event the Parent or Merger Sub purchases, assumes or
accepts by transfer or sale the Debenture and Debenture Warrants and all
amounts due and owing thereunder, the Company hereby agrees to (i)
immediately permit or consent to the sale or transfer, as the case may be,
to the Parent or Merger Sub, as the case may be, the Debentures and
Debenture Warrants, and (ii) use reasonable efforts to facilitate any such
purchase, assumption or acceptance by sale or transfer.";
(g) The Agreement is hereby amended to include new Section 6.23 in its
entirety:
"6.23 NFCC Agreement. Prior to the ten (10) day period preceding the
Effective Time, the Company shall terminate the NFCC Agreement and issue
and deliver to NFCC any and all Company Shares due and owing to NFCC
relating to the NFCC Agreement or any transactions contemplated thereby, in
full and complete satisfaction of the Company's obligations relating to the
NFCC Agreement or any transaction contemplated thereby, each in accordance
with the terms and conditions therein.";
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(h) Section 8.3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"8.3 Termination by the Company. This Agreement may be terminated upon
written notice to Parent, and the Merger may be abandoned, at any time
prior to the Effective Time, by action of the Board of Directors of the
Company, if (A) Parent shall have breached or failed to perform any of the
representations, warranties, covenants or other agreements contained in
this Agreement, or if any representation or warranty of Parent shall have
become untrue, in either case such that (i) the condition set forth in
Section 7.2(a) or (b) would not be satisfied as of the time of such breach
or as of such time as such representation or warranty shall have become
untrue and (ii) such breach or failure to be true has not been or is
incapable of being cured within twenty (20) business days following receipt
by Parent of notice of such breach or failure to comply or (B) all of the
Debentures shall not have been redeemed by the Company or purchased,
accepted by or transferred to Parent or Merger Sub, in any such case,
within 90 days after the date of this Agreement unless such failure to
redeem, purchase or transfer is the result of the failure of the Company to
make such redemption, or consent to such sale or transfer either (i) at a
time when the resources for such redemption or purchase have been provided
by or available on terms reasonably satisfactory to the parties hereto and
on terms no less favorable to the Company than those currently in force
with respect to the Debentures and Debenture Warrants from any Person,
including the Parent or the Merger Sub, (ii) any Person has arranged or
facilitated the purchase or transfer pursuant to Section 6.22, or (iii) in
violation of either Section 6.16 or 6.22.";
(i) The Agreement is hereby amended to include new Company Disclosure
Schedule for Section 5.1(f), 5.1(h) and Section 5.1(m)(ii) attached hereto.
(j) The Agreement is hereby amended to include new Schedule 6.4 attached
hereto.
2. Effectiveness of Amendment. This Amendment shall be deemed to be an
amendment to the Agreement in accordance with Section 9.03 of the Agreement.
Except as specifically amended above, the Agreement shall continue in full force
and effect and is hereby ratified and confirmed in all respects. Nothing
contained herein shall be deemed to modify any provision of the Agreement except
as otherwise expressly provided herein. Each reference in this Amendment to
"this Agreement", "hereunder","hereof", "herein" and words of similar import
shall mean and be a reference to the Agreement, as amended hereby.
3. Counterparts. For the convenience of the parties hereto, this Amendment
may be executed in any number of counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts shall together
constitute the same agreement.
4. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
5. Parties in Interest. This Amendment shall be binding upon and inure
solely to the benefit of each Party hereto and their respective successors and
assigns
6. Captions. The Article, Section and paragraph captions herein are for
convenience of reference only, do not constitute part of this Amendment and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the duly authorized officers of the Parties hereto and shall be effective as of
the date first herein above written.
PLATO LEARNING, INC.
By:
/s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President Finance and Chief
Financial Officer
WILC ACQUISITION CORPORATION
By:
/s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President Finance and Chief
Financial Officer
WASATCH INTERACTIVE LEARNING CORPORATION
By:
/s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
