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EXHIBIT 10.1
IRREVOCABLE PROXY
THIS IRREVOCABLE PROXY is entered into as of the 16th day of
March, 2001, by and among Xxx X. Xxxxxx individually and in any Representative
Capacity ("RKB"), and Xxxxxxx X. Xxxxxx individually and in any Representative
Capacity ("BWB" and together with RKB, "the Stockholders", and each, a
"Stockholder"), and New Mountain Partners, L.P. and DB Capital Investors, L.P.
(the "Purchasers"). For purposes of this Agreement, "Representative Capacity"
means as a proxy, an executor or administrator of any estate, a trustee of any
trust or in any other fiduciary or representative capacity (other than as
trustee or administrator of any employee benefit plan) if such Person, in such
capacity, directly or indirectly possesses the power to vote or dispose or
direct the voting of any Shares (as defined herein).
WHEREAS, pursuant to that certain Preferred Stock Purchase
Agreement, dated November 28, 2000 (as amended or supplemented from time to
time, the "Purchase Agreement"; capitalized terms used without definition herein
having the meanings ascribed thereto in the Purchase Agreement), by and among
Xxxxxxx Education, Inc. (the "Company") and the Purchasers, the Company agreed
to sell and the Purchasers agreed to purchase a total of 5,769,231 shares of
Series A Preferred Stock, pursuant to the terms and subject to the conditions
thereof;
WHEREAS, as of the date hereof, the Stockholders own and have the
power to vote 8,175,000 shares of common stock, par value $.01, of the Company
(the "Shares"), or approximately 53.4% of the issued and outstanding shares of
common stock, par value $.01 of the Company ("Common Stock");
WHEREAS, the Purchase Agreement contemplates that the Company will
use the proceeds from the sale of the Series A Preferred Stock, along with
available cash on hand, to effect a tender offer for up to 8,500,000 shares of
the Company's outstanding shares of Common Stock (the "Offer"); and
WHEREAS, as a condition to the execution by the Purchasers of the
Purchase Agreement, the Purchasers required the Stockholders to enter into a
Support and Option Agreement, pursuant to which the Stockholders agreed, among
other things, to vote the Shares (or cause them to be voted) for approval of the
Contemplated Transactions and against Acquisition Proposals, and to execute an
irrevocable proxy pursuant to which, from and after the Escrow Date until
consummation of the Offer, the Purchasers shall have all of the rights and
powers with respect to the Shares, subject to certain conditions, to attend in
person or by proxy meetings of the stockholders of the Company, and to vote the
Shares (or cause the Shares to be voted) on any and all matters in the
Purchasers' sole discretion.
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NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
1. Each of the Stockholders hereby constitutes and appoints
the Purchasers as the Stockholder's true and lawful proxy and attorney-in-fact,
with full power of substitution, to vote all of the Shares owned, directly or
indirectly, by the Stockholder (and any and all securities issued or issuable in
respect thereof) which the Stockholder is entitled to vote, for and in the name,
place and stead of the Stockholder, at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments thereof,
or pursuant to any consent in lieu of a meeting or otherwise. All power and
authority hereby conferred is coupled with an interest and is irrevocable. In
the event that the Purchasers are unable to exercise such power and authority
for any reason, each of the Stockholders agrees to vote all the Shares owned by
the Stockholder in accordance with the Purchasers' instructions at any such
meeting or adjournment thereof, or provide his or her written consent thereto.
2. Each of the Stockholders hereby covenants and agrees that
until this Proxy is terminated in accordance with the terms of Section 6 hereof,
he or she will not, and will not agree to, directly or indirectly, grant any
proxy or interest in or with respect to his or her Shares or deposit his or her
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to his or her Shares.
3. The Stockholders represent and warrant to the Purchasers
that the Stockholders own beneficially and of record an aggregate of 8,175,000
shares of Common Stock on the date hereof; such Shares are all of the securities
of the Company owned of record or beneficially by the Stockholders on the date
hereof; the Stockholders own the Shares free and clear of all liens, charges,
claims, encumbrances and security interests of any nature whatsoever; and except
as provided herein, the Stockholders have not granted any proxy with respect to
the Shares, deposited the Shares into a voting trust or entered into any voting
agreement or other arrangement with respect to the Shares. Notwithstanding the
foregoing, the Stockholders are permitted to tender, upon the request of the
Purchasers, pursuant to and in accordance with the terms of the Purchase
Agreement, an aggregate of 7,175,000 Shares in the Offer.
4. The Stockholders acknowledge that some of the Shares are
indirectly owned by the Stockholders through the Xxxxxx Family Foundation. The
Stockholders agree that nothing contained herein shall limit or otherwise affect
the representations and warranties of the Stockholders under this Agreement.
5. This Proxy shall be binding upon, inure to the benefit of,
and be enforceable by the successors and permitted assigns of the parties
hereto.
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This Proxy and the rights and obligations hereunder may not be assigned by the
Stockholders without the prior written consent of Purchasers.
6. This Proxy shall remain in effect from the date hereof
until the first to occur of (a) the date of termination of the Purchase
Agreement, or (b) the Closing.
7. Each of the Stockholders acknowledges that this Proxy is
coupled with an interest sufficient in law to support an irrevocable power and
shall not be terminated by any act of the Stockholder, by lack of appropriate
power or authority or by the occurrence of any other event or events.
8. The parties acknowledge and agree that performance of their
respective obligations hereunder will confer a unique benefit on the other and
that a failure of performance will not be compensable by money damages. The
parties therefore agree that this Proxy shall be specifically enforceable and
that specific enforcement and injunctive relief shall be available to the
Purchasers and the Stockholders for any breach of any agreement, covenant or
representation hereunder. This Proxy shall revoke all prior proxies given by the
Stockholders at any time with respect to any of the Shares.
9. The Stockholders hereby release the Purchasers from any and
all claims based on the manner in which the Purchasers exercise their right to
vote the Shares pursuant to this Proxy.
10. The Stockholders will, upon request, execute and deliver
any additional documents and take such actions as may reasonably be deemed by
the Purchasers to be necessary or desirable to complete the Proxy granted herein
or to carry out the provisions hereof.
11. If any term, provision, covenant, or restriction of this
Proxy is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Proxy shall remain in full force and effect and shall not
in any way be affected, impaired or invalidated.
12. This Proxy shall be governed by and construed in accordance
with the laws of the State of Maryland, without giving effect to the provisions
thereof relating to conflicts of law.
13. This Proxy may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together shall
constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Proxy to
be duly executed on the date first above written.
NEW MOUNTAIN PARTNERS, L.P.
By: New Mountain Investments, L.P., its
general partner
By: New Mountain GP, LLC, its
general partner
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Member
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P., its general
partner
By: DB Capital Partners, Inc., its
general partner
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Director
STOCKHOLDERS
/s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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