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EXHIBIT 2
VOTING AGREEMENT
VOTING AGREEMENT dated as of February 14, 2001 (this "Voting
Agreement") is by and between PLATO LEARNING, INC., a Delaware corporation
("Parent"), and the signatory or signatories hereto (each individually is a
"Stockholder", and, if there is more than one signatory, collectively, the
"Stockholders").
RECITALS
WHEREAS, in connection with the execution of this Voting Agreement,
Parent, WASATCH INTERACTIVE LEARNING CORPORATION, a Washington corporation (the
"Company"), and WILC ACQUISITION CORPORATION, a Delaware corporation and a
wholly-owned subsidiary of Parent ("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 Parent (the "Merger");
WHEREAS, the Stockholders are the beneficial owners of shares of
common stock, par value $0.0001 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, Parent desires that each of the Stockholders agrees, and each of the
Stockholders 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 Parent and each of the Stockholders, 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
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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 of the Stockholders hereby agrees to permit the Company
and Parent 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 Parent and the Company
reasonably determine to be necessary or desirable in connection with the Merger
and any transactions related thereto, each Stockholder's identity and ownership
of the Shares and the nature of each Stockholder's commitments, arrangements and
understandings under this Voting Agreement.
3. Voting of Company Stock. Each of the Stockholders 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 Beneficially Owned by the 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 Parent, 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 a material 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 Articles 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 of the Stockholders 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 and approval of the Merger. Further,
none of the Stockholders will enter into any agreement or
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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 of the Stockholders hereby irrevocably grants to, and
appoints, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ in their respective capacities as
officers of Parent and to any individual who shall hereafter succeed to any
such officer of Parent, 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. Notwithstanding, the foregoing, the proxies may elect not to
vote the Shares and permit the Stockholders to vote their Shares directly
or by another proxy in accordance with Section 3 of this Voting Agreement.
(b) Each of the Stockholders understands and acknowledges that Parent
is entering into the Merger Agreement in reliance upon such irrevocable
proxy. Each of the Stockholders 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. Each of the
Stockholders hereby affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Each of the
Stockholders 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 of
the Stockholders hereby represents and warrants (with respect to such
Stockholder only and not with respect to each other Stockholder) to, and agrees
with, Parent as follows:
(a) Ownership of Shares. Such Stockholder is the sole 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 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
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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 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 6.2 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
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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 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 Parent. Such Stockholder understands and acknowledges
that Parent 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 of the Stockholders agrees and covenants to Parent 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 Parent'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 of the Stockholders signs solely in his or her capacity as the 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.
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(b) Certain Events. Subject to Section 5(f) hereof, each of the
Stockholders 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
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 Parent
in the case of an assignment by any Stockholder and each Stockholder in the
case of any assignment by Parent; provided that Parent may assign, in its
sole discretion, its rights and obligations hereunder to any direct or
indirect wholly owned subsidiary of Parent, but no such assignment shall
relieve Parent 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 Parent:
PLATO Learning, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(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.
(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.
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(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.
IN WITNESS WHEREOF, Parent and each of the Stockholders have caused this Voting
Agreement to be duly executed as of the day and year first above written.
STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
603,238 shares of WASATCH INTERACTIVE
LEARNING CORPORATION common stock