Exhibit 99.1
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT dated September 9, 2003 (as amended, this
"Voting Agreement") is by and between PLATO Learning, Inc., a Delaware
corporation ("Buyer"), and Xxxx X. Xxxxxx and Xxxx X. Xxxxxx (collectively, the
"Stockholders", and each individually, a "Stockholder").
RECITALS
WHEREAS, concurrent with the execution of this Voting
Agreement, Buyer, Lightspan, Inc., a Delaware corporation (the "Company"), 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 Stockholders are the record and beneficial owners
of an aggregate of 287,895 issued and outstanding shares of common stock, par
value $0.01 per share, of the Company (the "Shares") in the amounts set forth
opposite the Stockholder's name and signature on the signature page hereof; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Buyer desires that each Stockholder agree, and each
Stockholder is 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 Buyer and each 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. Each 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, such Stockholder's identity and ownership
of the Shares and the nature of such Stockholder's commitments, arrangements and
understandings under this Voting Agreement.
3. Voting of Company Stock. Each 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 or she shall vote (or cause to be
voted) the Shares held of record or Beneficially Owned by such Stockholder,
whether heretofore owned or hereafter acquired: (i) in favor of approval of the
Merger, adoption of the Merger Agreement and any actions required in furtherance
thereof and hereof by the stockholders of the Company; (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 Company
under the Merger Agreement or any Stockholder under this Voting Agreement; and
(iii) except as otherwise agreed to in writing in advance by Buyer, against the
following actions (other than the Merger and the transactions contemplated by
this Voting Agreement and the Merger Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company; (B) a sale, lease or transfer of all or a substantial
amount of assets of the Company, or a reorganization, recapitalization,
dissolution, winding up, extraordinary dividend or distribution or liquidation
of the Company; (C)(1) any change in a majority of the individuals who
constitute the Company's Board of Directors; (2) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or By-Laws; (3) any material change in the Company's corporation
structure or business; or (4) any other action which, in the case of each of the
matters referred to in clauses (C)(1), (2) or (3), is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or
materially and adversely affect the Merger and the transactions contemplated by
this Voting Agreement and the Merger Agreement. Each Stockholder agrees that the
obligations under this Voting Agreement are unconditional and will remain in
full force and effect notwithstanding that the Company may have received an
Acquisition Proposal or that the Board of Directors of the Company may have
withdrawn or amended its recommendation
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and approval of the Merger. Further, none of the Stockholders will 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) Each Stockholder hereby irrevocably grants to, and
appoints, Xxxx Xxxxxx and Xxxx Xxxxxx in their respective capacities as
officers of Buyer and to any individual who shall hereafter succeed to
any such officer of Buyer, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the
name, place and stead of such Stockholder, to vote such Stockholder's
Shares, or grant a consent or approval in respect of such Shares as set
forth in Section 3 hereof. None of the Stockholders shall 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.
(b) Each Stockholder understands and acknowledges that Buyer
is entering into the Merger Agreement in reliance upon such irrevocable
proxy. Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given to secure the performance of the
duties of such Stockholder under this Voting Agreement. Each
Stockholder hereby affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. Each 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 each Stockholder. Each
Stockholder hereby represents and warrants (with respect to such Stockholder
only and not with respect to each other Stockholder) to, and agrees with, Buyer
as follows:
(a) Ownership of Shares. Such Stockholder is the sole record
and Beneficial Owner of the number of Shares set forth opposite such
Stockholder's name on the signature page hereof. On the date hereof,
the Shares set forth opposite the Stockholder's name on the signature
page hereof constitute all of the Shares owned of record or
Beneficially Owned by such Stockholder or with respect to which such
Stockholder has voting power by proxy, voting agreement, voting trust
or other similar instrument. Such 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 set
forth opposite such Stockholder's name on the signature page hereof,
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws, and the terms of this Voting
Agreement.
(b) Authorization. Such Stockholder has and will have the
legal capacity, power and authority to enter into and perform all of
such Stockholder's obligations under this Voting Agreement. The
execution, delivery and performance of this Voting Agreement by such
Stockholder will not violate any other agreement to which such
Stockholder is a
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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 such
Stockholder and constitutes a valid and binding agreement enforceable
against such 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 such Stockholder is a trustee whose consent is
required for the execution and delivery of this Voting Agreement or the
consummation by such Stockholder of the transactions contemplated
hereby. If such Stockholder is married and such 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, such 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
such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby and (ii) none of the execution and
delivery of this Voting Agreement by such Stockholder, the consummation
by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall
(A) conflict with or result in any breach of the organizational
documents of such Stockholder (if applicable), (B) result in a
violation or breach of, or 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 such
Stockholder is a party or by which such 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 such 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, such
Stockholder's Shares at all times during the term hereof will be
Beneficially Owned by such 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. Such 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.
Such 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 any such
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
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warranty of such Stockholder contained herein untrue or incorrect or
have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Voting Agreement.
(g) Reliance by Buyer. Such Stockholder understands and
acknowledges that Buyer is entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this
Stockholder Agreement.
6. Stop Transfer Legend.
(a) Each Stockholder agrees and covenants to Buyer that such
Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such 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.
7. Further Assurances. From time to time, at Buyer's request and
without further consideration, each 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 any Stockholder is or becomes during the
term hereof a director or an officer of the Company, such Stockholder makes no
agreement or understanding herein in his capacity as such director or officer.
Each Stockholder signs solely in his or her 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, each
Stockholder agrees that this Voting Agreement and the obligations
hereunder shall attach to each such 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
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without limitation, each 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
Buyer in the case of an assignment by any Stockholder and each
Stockholder in the case of any assignment by Buyer; provided that Buyer
may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Buyer,
but no such assignment shall relieve Buyer 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 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 Buyer:
PLATO Learning, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 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
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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.
(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.
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(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, Buyer and each Stockholder have caused
this Voting Agreement to be duly executed as of the day and year first above
written.
PLATO LEARNING, INC.
/s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: President and Chief Executive Officer
STOCKHOLDERS:
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
c/o Lightspan, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
159,045 shares of Lightspan, Inc. common stock
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
c/o Lightspan, Inc.
00000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
128,850 shares of Lightspan, Inc. common stock
