EXHIBIT 99.7
LIGHTSPAN, INC.
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "AGREEMENT") is made as
of September 9, 2003 between LIGHTSPAN, INC., a Delaware corporation (the
"COMPANY"), and COMPUTERSHARE INVESTORS SERVICES, L.L.C. (the "RIGHTS AGENT").
WHEREAS, the Company and the Rights Agent entered into that certain
Rights Agreement dated as of February 14, 2002 (the "RIGHTS AGREEMENT")
(capitalized terms used but not defined herein shall have the meaning assigned
to them in the Rights Agreement); and
WHEREAS, the Company and the Rights Agent desire to irrevocably amend
the Rights Agreement as provided below.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth below, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties to this
First Amendment to Rights Agreement hereby agree as follows:
AMENDMENT
1. AMENDMENT OF THE RIGHTS AGREEMENT.
1.1 A new Section 35 of the Rights Agreement is hereby added as
follows:
"Section 35. Permitted Transactions. Reference is made to the
Agreement and Plan of Merger by and among PLATO Learning,
Inc., a Delaware corporation ("Parent"); LSPN Merger Corp., a
Delaware corporation ("Merger Sub"); and the Company, dated as
of September 9, 2003, as it may be amended from time to time
(the "Merger Agreement"). All capitalized terms used in this
Section 35 shall have the meanings given to them in the Merger
Agreement unless otherwise defined herein. Notwithstanding any
other provision of this Agreement, neither Parent nor Merger
Sub nor any of their respective Affiliates or Associates shall
be an Acquiring Person, and neither a Distribution Date nor a
Shares Acquisition Date shall occur, and the Rights will not
separate from the Common Stock, as a result of the execution,
delivery or performance of the Merger Agreement, the
consummation of the Merger or the other transactions
contemplated thereby in each case, in accordance with the
terms thereof, as such terms may be amended by the parties
thereto, and none of the Company, Parent, Merger Sub, nor the
Surviving Corporation, nor any of their respective Affiliates
or Associates, shall have any obligations under this Agreement
to any holder (or former holder) of Rights as of and following
the consummation of the Merger and/or the Effective Time."
Clause (iv) of Section 25(a) of the Rights Agreement is hereby
amended by the addition of "except in connection with the
transaction contemplated in Section 35 hereof" at the end of
the clause.
1.
2. NO OTHER AMENDMENT. Except as modified by this Amendment, the Rights
Agreement shall remain in full force and effect without any modification. By
executing this Amendment below, the Company certifies that this Amendment has
been executed and delivered in compliance with the terms of Section 27 of the
Rights Agreement. This Amendment shall be deemed an amendment to the Rights
Agreement and shall become effective when executed and delivered by the Company
and the Rights Agent as provided under Section 27 of the Rights Agreement. This
Amendment shall be irrevocable and Parent and Merger Sub shall be express third
party beneficiaries hereof.
3. EFFECT OF AMENDMENT. Except as and to the extent expressly modified by this
Amendment, the Rights Agreement and the exhibits thereto, shall remain in full
force and effect in all respects. In the event of a conflict between this
Amendment and the Rights Agreement and the exhibits thereto, this Amendment
shall govern.
4. COUNTERPARTS. This Amendment may be executed in several counterparts, each of
which shall constitute an original and all of which, when taken together, shall
constitute one agreement.
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2.
The parties hereto have caused this Amendment to be executed and
delivered as of the day and year first written above.
LIGHTSPAN, INC.
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Chairman of the Board and
Chief Executive Officer
COMPUTERSHARE INVESTOR SERVICES LLC
By:
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Name:
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Title:
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[SIGNATURE PAGE TO FIRST AMENDMENT TO RIGHTS AGREEMENT]