Exhibit 10.1
AGREEMENT
This
Agreement, dated as of February 5, 2009, is by and among PLATO
Learning, Inc., a Delaware corporation (the “Company”),
and Steven R. Becker, an individual resident of Texas
(“Becker”), BC Advisors, LLC, a Texas limited liability
company (“BCA”), SRB Management, L.P., a Texas limited
partnership (“SRB”) and Matthew A. Drapkin, an
individual resident of New York (“Becker Director II”).
Becker, BCA and SRB are collectively referred to as the
“Becker Group.”
WHEREAS,
each of Becker and Becker Director II has submitted a letter
consenting to serve as a director of the Company; and
WHEREAS,
the Company and the Becker Group have determined that the interests
of the Company and its stockholders would be best served by adding
Becker and Becker Director II to the Company’s Board of
Directors on the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants, agreements and
conditions hereinafter set forth, and, intending to be legally
bound hereby, the parties hereby agree as follows:
1.
Representations and Warranties of the Company . The Company
represents and warrants as follows:
(a) The
Company has the corporate power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby.
(b) This
Agreement has been duly and validly authorized, executed and
delivered by the Company, constitutes a valid and binding
obligation and agreement of the Company, and is enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws
affecting the rights of creditors and subject to general equity
principles.
(c) The
execution, delivery and performance of this Agreement by the
Company does not and will not (i) violate or conflict with any
law, rule, regulation, order, judgment or decree applicable to it,
or (ii) result in any breach or violation of or constitute a
default (or an event which with notice or lapse of time or both
could become a default) under or pursuant to, or result in the loss
of a material benefit under, or give any right of termination,
amendment, acceleration or cancellation of, any organizational
document, agreement, contract, commitment, understanding or
arrangement to which the Company is a party or by which it is
bound.
2.
Representations and Warranties of the Becker Group and Becker
Director II . BCA, SRB and Becker Director II severally, and
not jointly, represent and warrant with respect to himself or
itself, and Becker represents and warrants as to each member of the
Becker Group, as follows:
(a) Such
party, if Becker or Becker Director II, has the power and authority
to execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby.
Such party, if an entity, has the limited partnership or limited
liability company power and authority, as applicable, to execute,
deliver and carry out the terms and provisions of this Agreement
and to consummate the transactions contemplated hereby.
(b) This
Agreement has been duly and validly authorized, executed, and
delivered by such member of the Becker Group or Becker Director II,
as the case may be, constitutes a valid and binding obligation and
agreement of such party, and is enforceable against such party in
accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting the
rights of creditors and subject to general equity
principles.
(c) Such
party, if a member of the Becker Group, is the “beneficial
owner” of a number of shares of Common Stock consisting of
the 2,550,823 shares set forth on the cover page relating to such
member in the Schedule 13D filed by the members of the Becker
Group with the Securities and Exchange Commission (the
“SEC”) on January 16, 2009 (the
“Schedule 13D”), plus the number of shares of
Common Stock reported on the Form 4s filed with the SEC by Becker
following January 16, 2009 and on or prior to the date of this
Agreement. Except for those Affiliates and Associates of such
member with respect to whom a cover page is included in the
Schedule 13D, no other Affiliate or Associate of such member
beneficially owns any shares of Common Stock. Becker Director II
does not beneficially own any shares of Common Stock. Becker
Director II and the Becker Group each disclaim beneficial ownership
of the common stock owned or controlled by the other, and assert
that their entry into this Agreement is a separate agreement of
each of them with the Company.
(d) The
execution, delivery and performance of this Agreement by Becker
Director II and each member of the Becker Group does not and will
not (i) violate or conflict with any law, rule, regulation,
order, judgment or decree applicable to him or it, or
(ii) result in any breach or violation of or constitute a
default (or an event which with notice or lapse of time or both
could become a default) under or pursuant to, or result in the loss
of a material benefit under, or give any right of termination,
amendment, acceleration or cancellation of, any organizational
document, agreement, contract, commitment, understanding or
arrangement to which he or it is a party or by which he or it is
bound.
3.
Definitions . For purposes of this Agreement:
(a) The
terms “Affiliate” and “Associate” have the
respective meanings set forth in Rule 12b-2 promulgated by the
SEC under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”); the terms “beneficial
owner” and “beneficial ownership” shall have the
respective meanings as set forth in Rule 13d-3 promulgated by
the SEC under the Exchange Act; and the terms “person”
or “persons” shall mean any individual, corporation
(including not-for-profit), general or limited partnership, limited
liability company, joint venture, estate, trust, association,
organization or other entity of any kind or nature.
(b) “Board”
means the Board of Directors of the Company.
(c) “Common
Stock” means the Common Stock of the Company, $0.01 par
value.
(d) The
“Standstill Period” means
(i) as
to the Becker Group, the period from the date of this Agreement
until the earlier of:
(A) the
date that is three months after the date on which Becker ceases to
be a member of the Board, provided that the Standstill Period shall
not end pursuant to this clause (A) prior to the date that is 70
days prior to the Company’s 2010 Annual Meeting of
Stockholders; and
(B) such
date, if any, as the Company has materially breached any of its
commitments or obligations set forth in Sections 4(a) and 4(b)
of this Agreement; and
(ii) as to
Becker Director II, the period from the date of this Agreement
until the earlier of:
(A) the
date that is three months after the date on which Becker Director
II ceases to be a member of the Board, provided that the Standstill
Period shall not end pursuant to this clause (A) prior to the date
that is 70 days prior to the Company’s 2010 Annual Meeting of
Stockholders; and
(B) such
date, if any, as the Company has materially breached any of its
commitments or obligations set forth in Sections 4(a) and 4(b)
of this Agreement.
4.
Election of Becker Directors; Related Matters .
(a) Within
five business days following the execution and delivery of this
Agreement by the parties hereto:
(i) In
accordance with the Company’s amended certificate of
incorporation and amended and restated bylaws, the Board shall
adopt a resolution increasing the size of the Board by two
directors, to a total of nine directors, effective as of March 18,
2009;
(ii) In
accordance with the Company’s amended certificate of
incorporation and amended and restated bylaws, the Board shall
elect Becker and Becker Director II as directors of the Company,
effective as of March 18, 2009, to serve in Class I and Class II of
the Board, respectively; and
(iii) The Board
shall adopt a resolution increasing the size of its Nominating and
Governance Committee by one member, to a total of five members,
effective as of March 18, 2009, and appointing Becker to serve as a
member of the Nominating and Governance Committee, effective as of
March 18, 2009.
(b) The
Board shall nominate the current members of Class I of the
Board (including Becker who will become a Class I director on March
18, 2009) for election as Class I directors at the 2009 Annual
Meeting of Stockholders.
(c) The
members of the Becker Group who filed the Schedule 13D shall
promptly file an amendment to the Schedule 13D reporting the
entry into this agreement, amending applicable items to conform to
its obligations hereunder and appending or incorporating by
reference this Agreement as an exhibit thereto. Such members of the
Becker Group shall provide to the Company a reasonable opportunity
to review and comment on such amendment in advance of filing, and
shall consider in good faith the reasonable comments of the
Company.
(d) Becker
Director II and the members of the Becker Group shall cause all
shares of Common Stock beneficially owned by them and their
Affiliates to be present for quorum purposes and to be voted, and
shall cause all shares of Common Stock held by their respective
Associates to be present for quorum purposes and to be voted, in
favor of all directors nominated by the Board for election at the
Company’s 2009 Annual Meeting of Stockholders.
5.
Standstill .
Each
of the members of the Becker Group and Becker Director II agrees
that, during the Standstill Period, he or it will not, and he or it
will cause each of such person’s Affiliates or agents or
other persons acting on his or its behalf not to, and will use
commercially reasonable efforts to cause his or its respective
Associates not to:
(a) submit
any stockholder proposal (pursuant to Rule 14a-8 promulgated
by the SEC under the Exchange Act or otherwise) or any notice of
nomination or other business for consideration, and will not
nominate any candidate for election to the Board or oppose the
directors nominated by the Board.
(b) form,
join in or in any other way participate in a “partnership,
limited partnership, syndicate or other group” within the
meaning of Section 13(d)(3) of the Exchange Act with respect
to the Common Stock or deposit any shares of Common Stock in a
voting trust or similar arrangement or subject any shares of Common
Stock to any voting agreement or pooling arrangement, other than
solely with other members of the Becker Group or one or more
Affiliates of a member of the Becker Group with respect to the
Common Stock currently owned as set forth in Section 2(c) of
this Agreement or to the extent such a group may be deemed to
result with the Company or any of its Affiliates as a result of
this Agreement;
(c) solicit
proxies or written consents of stockholders, or otherwise conduct
any nonbinding referendum with respect to Common Stock, or make, or
in any way participate in, any “solicitation” of any
“proxy” within the meaning of Rule 14a-1
promulgated by the SEC under the Exchange Act to vote, or advise,
encourage or influence any person with respect to voting, any
shares of Common Stock with respect to any matter, or become a
“participant” in any contested
“solicitation” for the election
