RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
Exhibit
10.8
RIGHT
OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “
Agreement”)
is
made as of July 2, 2007 by and among Camden Learning Corporation, a Delaware
corporation (the “ Company”),
Camden Partners Strategic Fund III, L.P. and Camden Partners Strategic Fund
III-A, L.P. (collectively with Camden Partners Strategic Fund III, L.P. the
“
Camden
III
Funds”),
in
connection with the Company’s proposed public offering of Units pursuant to a
registration statement on Form S-1, filed by the Company with the Securities
and
Exchange Commission (as amended, the “ Registration
Statement”).
RECITALS
WHEREAS,
the Camden III Funds are the sole members of Camden Learning, LLC, the sponsor
of the Company, and the Company and the Camden III Funds share certain officers
and directors; and
WHEREAS,
because each of the Company and the Camden III Funds will be seeking business
opportunities in the education industry, the parties have made this Agreement
to
clarify the business opportunities for which each party shall have the right
of
first refusal.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Right
of First Refusal
. For
the term specified in Section 2
of this
Agreement and subject to subsections (b), (c) and (e) of this Section
1
, each
of the Camden III Funds hereby grants to the Company a right of first
refusal as follows:
(a)
Each of the Camden III Funds shall first present any investment or
acquisition opportunity in a business or businesses in the education industry
whose aggregate fair market value is at least equal to 80% of the balance of
the
Company’s trust account (as described in the Registration Statement), to a
committee of the Company’s independent directors, and will not enter into any
agreement to purchase or invest in such business or businesses until the
Company’s committee of independent directors determines, within the time frame
and manner specified below, whether or not to pursue such business
opportunity.
(b)
Notwithstanding anything to the contrary in this Agreement, the Company
agrees that any such business entity with respect to which any of the Camden
III
Funds has initiated any contacts or entered into any discussions or
negotiations, formal or informal, regarding the Camden III Funds’ acquisition
of, or investment in, such business prior to the completion of the Company’s
offering, as set forth in the Registration Statement, will not be a potential
acquisition target for Company, unless the Camden III Funds decline to pursue
such business opportunity and notify Company of the same in
writing.
(c)
After review of any potential corporate opportunity, the Company may
release the right of first refusal set forth in this Section 1 with respect
to
such corporate opportunity. Decisions by the Company to release either of the
Camden III Funds to pursue such corporate opportunity within the education
industry will be made by a majority of the Company’s independent directors.
(d)
As used herein, the term “ Business
Combination”
(as
described more fully in the Registration Statement) shall mean a merger, capital
stock exchange, asset acquisition, or other similar business combination between
the Company and one or more operating businesses in the education
industry.
(e)
Each of the Camden III Funds whose general partner, principals,
directors, officers or employees become aware of a corporate opportunity which
is subject to this Agreement shall provide written notice of the business
opportunity to the Company pursuant to this right of first refusal within five
(5) business days of its identification of the corporate opportunity. Any right
of first refusal granted shall expire ninety (90) days from the date of the
written notice, provided that, during such ninety (90) -
day
period, the Company has failed to commence discussions with any third party
regarding a Business Combination.
2.
Term
. This
Agreement shall become effective on its execution and shall remain in effect
for
a period to expire upon the earlier of (i) the consummation by the Company
of a Business Combination or (ii) 24 months following the consummation of
the Company’s offering pursuant to the Registration Statement.
3.
Notices
. All
notices or communications hereunder shall be in writing, addressed as
follows:
To
the
Company:
Camden
Learning Corporation
000
Xxxx
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxx
with
copies to:
Xxxxxxxx
X. Xxxxxxxx, Esq.
Ellenoff,
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx, 00 xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
If
to
Camden III Funds:
Camden
Partners Strategic Fund III
000
Xxxx
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx
Camden
Partners Strategic Fund III-A, L.P.
000
Xxxx
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx
with
copies to:
Xxxxxxx
Xxxxx, Esq.
Xxxxxx
Xxxx LLP
000
Xxxxx
Xxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Any
such
notice or communication shall be delivered by hand or by courier or sent
certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in
a
notice delivered as described above), and the third business day after the
actual date of mailing shall constitute the time at which notice was
given.
4.
Severability
. If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.
5.
Assignment
.
Neither this Agreement nor any rights or obligations hereunder shall be
assignable or otherwise subject to hypothecation by any of the parties
hereto.
6.
Amendment
. This
Agreement may only be amended by written agreement of the parties
hereto.
7.
Survival
. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this Section 7
are in
addition to the survivorship provisions of any other section of this
Agreement.
8.
Governing
Law
. This
Agreement shall be construed, interpreted, and governed in accordance with
the
laws of the State of New York, without reference to rules relating to conflicts
of law.
9.
Effect
on Prior Agreements
. This
Agreement contains the entire understanding between the parties hereto and
supersedes in all respects any prior or other agreement or understanding
concerning the subject matter hereof between the Company and the Camden III
Funds.
10.
Counterparts
. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which, taken together, shall be deemed one
document
11.
Mutual
Waiver of Jury Trial
.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE
MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND
THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES),
THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST BENEFITS OF THE JUDICIAL SYSTEM,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
12.
Waiver
. Each
party acknowledges and permanently and irrevocably waives any and all claims
against the other parties hereto in respect of any business opportunities not
received by it pursuant to the terms of this Agreement.
[Signatures
Follow on Next Page]
IN
WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
above.
CAMDEN
LEARNING CORPORATION
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
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Title:
President and Chief Executive Officer
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CAMDEN
PARTNERS STRATEGIC FUND III, L.P.
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By:
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Camden
Partners Strategic III, LLC
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Its
General Partner
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By:
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Camden
Partners Strategic Manager, LLC
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Its
Managing Member
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Managing Member
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CAMDEN
PARTNERS STRATEGIC FUND III-A, L.P.
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By:
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Camden
Partners Strategic III, LLC
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Its
General Partner
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By:
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Camden
Partners Strategic Manager, LLC
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Its
Managing Member
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
Managing Member
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