STOCK VOTING AGREEMENT
STOCK
VOTING AGREEMENT (this “Agreement”), dated as of June 21, 2006 by and among
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P. (“Xxxxxx, Xxxxxxx”), XXXXX X.
XXXXXXX (“Xxxxxxx”) and STRATEGIC ASSOCIATES, L.P. (“Strategic Associates and,
collectively with Xxxxxx, Xxxxxxx and Xxxxxxx, the “Stockholders”) and LIBERTY
PARTNERS HOLDINGS 28 LLC, a Delaware limited liability company
(“Buyer”).
WHEREAS,
concurrently herewith, Buyer, Teach Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Buyer ( “Merger Sub”), and Concorde
Career Colleges, Inc., a Delaware corporation (“Company”), are entering into an
Agreement and Plan of Merger of even date herewith (such Agreement in the form
attached hereto as Exhibit
A
being
the “Merger Agreement”), pursuant to which Merger Sub will merge with and into
Company (the “Merger”); and
WHEREAS,
each Stockholder is the record owner as of the date hereof of that number of
shares of common stock, $.10 par value per share (the “Common Stock”), of
Company, or other securities exercisable or exchangeable for, or convertible
into, Common Stock of the Company, in each case as set forth opposite such
Stockholder’s name on Schedule
I
attached
hereto (such Common Stock and other securities collectively referred to as
the
“Existing Shares,” and together with any shares of Common Stock acquired after
the date hereof and prior to the termination hereof, including upon the
exercise, exchange or conversion of any security or right to acquire shares
of
Common Stock and any shares of Common Stock issued as the result of any stock
split, stock dividend, reorganization, recapitalization or other change in
the
capital structure of the Company, hereinafter collectively referred to as the
“Shares”); and
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of its stockholders that Merger Sub be merged with and into the
Company and, to that end, has approved the merger of Merger Sub with and into
the Company in accordance with the laws of the State of Delaware and the
provisions of the Merger Agreement and this Agreement, including for purposes
of
rendering the restrictions of Section 203 of the Delaware General Corporation
Law inapplicable to this Agreement, the Merger Agreement, the Merger and the
other transactions contemplated hereby and thereby, and has unanimously
recommended that the Merger Agreement and the transactions contemplated thereby
be approved by the Company’s stockholders; and
WHEREAS,
Buyer and Merger Sub have entered into the Merger Agreement in reliance on
and
in consideration of each Stockholder’s representations, warranties, covenants
and agreements hereunder.
NOW,
THEREFORE, in consideration of the mutual agreements, promises and covenants
set
forth herein and the recitals set forth above, and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows.
1. Agreement
to Vote.
Each
Stockholder hereby revokes any and all previous proxies with respect to the
Shares owned by such Shareholder and irrevocably agrees to vote and otherwise
act (including pursuant to written consent), with respect to all of the Shares
owned by such Shareholder, (a) for the approval and the adoption of the Merger
and the Merger Agreement, as the same may be amended from time to time, all
agreements relating to the Merger and all actions relating thereto; and (b)
against (i) any Acquisition Proposal (as defined in the Merger Agreement),
(ii)
any material change in the capitalization of Company or any subsidiary of
Company, or the corporate structure of Company or any subsidiary of Company
and
(iii) any other proposal or transaction which could, or could reasonably be
expected to, impede, interfere with, postpone, discourage, adversely affect,
prevent or delay the Merger or the Merger Agreement or any of the transactions
contemplated thereby, in each case, at any meeting or meetings of the
stockholders of Company called and at any adjournment, postponement or
continuation thereof, and on every action or approval by written consent of
the
stockholders of Company. In the event that a meeting of the stockholders of
Company is held, each Stockholder shall appear at such meeting or otherwise
cause the Shares owned by such Stockholder to be counted as present thereat
for
purposes of establishing a quorum. No Stockholder shall enter into any agreement
with any person to vote or give instructions in any manner inconsistent with
this Section 1. The foregoing shall remain in effect with respect to the Shares
until the termination of this Agreement. Each Stockholder hereby agrees to
execute such additional documents as Buyer may reasonably request to effectuate
the foregoing.
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2. Irrevocable
Proxy.
Each
Stockholder hereby appoints the directors on the Board of Directors of Buyer,
and each of them, as such Stockholder’s proxy to vote all of the Shares owned by
such Stockholder at any meeting of the stockholders of Company or any
adjournment, postponement or continuation thereof on the matters described
in
Section 1 hereof, and to execute and deliver any written consents to fulfill
such Stockholder’s obligations under this Agreement. This proxy is coupled with
an interest and is irrevocable until the termination of this Agreement, at
which
time it shall terminate.
3. Agreement
not to Exercise Appraisal Rights.
No
Stockholder shall exercise any rights (including under section 262 of the
Delaware General Corporation Law) to demand appraisal of any Shares owned by
such Stockholder that may arise with respect to the Merger or the Merger
Agreement.
4. Representations
and Warranties of Stockholders.
Each
Stockholder represents and warrants to Buyer as follows:
4.1. Ownership
of Shares.
On the
date hereof, the Existing Shares are all of the securities of Company currently
owned, beneficially or otherwise, by Stockholders. On the Closing Date, the
Shares will constitute all of the securities of Company owned, beneficially
or
otherwise, by Stockholders. Other than as set forth on Schedule
I
attached
hereto, the Stockholders do not hold, whether of record or beneficially, or
have
any rights to acquire any shares of Common Stock. Each Stockholder has sole
voting power, sole power of disposition, sole power to issue instructions with
respect to the matters set forth herein and sole power to agree to all of the
matters set forth in this Agreement, in each case, with respect to all of the
Shares owned by such Stockholder, with no limitations, qualifications or
restrictions on such rights, subject to applicable United States federal and
state securities laws and this Agreement. Each Stockholder is the beneficial
owner of the Shares set forth opposite such Stockholder’s name on Schedule
I,
and
currently has, and at Closing (as defined in the Merger Agreement) will have,
good, valid and marketable title to such Shares, free and clear of all liens,
encumbrances, restrictions, options, warrants, rights to purchase, voting trusts
or agreements, proxies and claims of every kind (other than the encumbrances
created by this Agreement and other than restrictions on transfer under
applicable United States federal and state securities laws).
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4.2. Authority;
Binding Agreement.
Each
Stockholder has the full right, power and authority to execute and deliver
this
Agreement and to perform all of its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding agreement of such Stockholder, enforceable against such Stockholder
in
accordance with its terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium and similar laws, now or
hereafter in effect affecting creditors’ rights and remedies generally or
general principles of equity. Neither the execution, delivery and performance
of
this Agreement by such Stockholder nor the consummation by such Stockholder
of
the transactions contemplated hereby will (i) violate, or require any consent,
approval or notice under, any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to such Stockholder or the Shares owned
by
such Stockholder or (ii) constitute a violation of, conflict with or
constitute a default under, any contract, commitment, agreement, understanding,
arrangement or other restriction of any kind to which such Stockholder is a
party or by which such Stockholder is bound.
4.3. Reliance
on Agreement.
Each
Stockholder understands and acknowledges that Merger Sub and Buyer each are
entering into the Merger Agreement in reliance upon such Stockholder’s execution
and delivery of this Agreement. Such Stockholder acknowledges that the agreement
set forth in Section 1 hereof is granted in consideration for the execution
and
delivery of the Merger Agreement by Merger Sub and Buyer.
5. Certain
Restrictions.
No
Stockholder shall, directly or indirectly, take any action that would make
any
representation or warranty of such Stockholder contained herein untrue or
incorrect.
6. Certain
Covenants of Stockholder.
Except
in accordance with the provisions of this Agreement, each Stockholder hereby
agrees with, and covenants to, Buyer as follows:
6.1. Transfer.
Such
Stockholder shall not (a) transfer (which term shall include for the purposes
of
this Agreement, any sale, gift, pledge, assignment, encumbrance or other
disposition) or consent to any transfer of, any or all of the Shares owned
by
such Stockholder or any interest therein, except pursuant to the Merger and
the
Merger Agreement, (b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all such Shares or any
interest therein, (c) grant any proxy, power-of-attorney or other authorizations
in or with respect to such Shares or (d) deposit such Shares into a voting
trust
or enter into a voting agreement or similar arrangement with respect to such
Shares. Each Stockholder shall submit to Company, promptly after the execution
of this Agreement, any and all certificates representing the Shares owned by
such Stockholder and such Stockholder agrees with, and hereby consents to the
inscription on all such certificates prior to their prompt return to such
Stockholder of the following legend by Company on such certificates: “The shares
of Common Stock, $.10 par value, of the Company, represented by this certificate
are subject to a Stock Voting Agreement, dated as of June 21, 2006, and may
not
be sold or otherwise transferred, except in accordance therewith. Copies of
such
Agreement may be obtained at the principal executive office of the
Company.”
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6.2. Solicitation.
Prior
to the Effective Time (as defined in the Merger Agreement), each Stockholder
shall not, and each Stockholder shall use its best efforts to direct and cause
its affiliates, and their respective agents and representatives not to, directly
or indirectly, (a) initiate, solicit, encourage or otherwise take any
action to facilitate any inquiries or the making of any proposal or offer with
respect to an Acquisition Proposal (as defined in the Merger Agreement) or
(b) engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, or afford access to any
of
the properties, assets or books and records of Company or any of its
subsidiaries to, or enter into any agreement, commitment or arrangement with,
any person relating to an Acquisition Proposal. Each Stockholder shall
immediately cease and cause to be terminated all existing activities,
discussions and negotiations by such Stockholder or any of its affiliates,
or
their respective agents or representatives, with respect to any Acquisition
Proposal. Such Stockholder shall (i) as promptly as reasonably practicable
(but
in no event later than the day after receipt) notify Buyer if any such
inquiries, proposals or offers are received by, any such information is
requested from, or any such discussions or negotiations are sought to be
initiated or continued with, any such third party and (b) identify the terms
and
conditions of any Acquisition Proposal (including any subsequent changes,
modifications and amendments thereto) and the identity of the third party making
such Acquisition Proposal.
6.3. Notifications.
Each
Stockholder shall, while this Agreement is in effect, notify Buyer in writing
promptly, but in no event later than two days after such acquisition, of any
securities of Company acquired by such Stockholder after the date
hereof.
6.4. Waiver.
Each
Stockholder hereby unconditionally waives all of its rights, remedies and
interests in, to and under any and all agreements, arrangements, contracts
and
understandings, whether written or otherwise, to or by which the Company or
its
assets or properties are subject or bound, which rights, remedies and interests,
including any rights of first refusal or rights to consent or object, whether
directly or indirectly, prohibit, restrict or otherwise impair (or would
reasonably be expected to prohibit, restrict or impair) the ability of the
Company or any stockholder of the Company, including such Stockholder, to
perform the obligations of such person hereunder or the ability of any party
to
the Merger Agreement to perform its obligations thereunder or to consummate
the
transactions contemplated thereby, including the Merger. This waiver is
irrevocable until the termination of this Agreement pursuant to Section 7(ii),
at which time it shall terminate.
7. Termination.
This
Agreement shall terminate on the earlier of (i) the Effective Time or (ii)
immediately after the termination of the Merger Agreement in accordance with
its
terms.
8. Certain
Events.
This
Agreement and the obligations hereunder shall, while this Agreement is in
effect, attach to the Shares and shall be binding upon any person to whom record
or beneficial ownership of such Shares shall pass, whether by operation of
law
or otherwise, including each Stockholder’s administrators or successors. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Company affecting
the Shares or the acquisition of additional shares or other voting securities
of
the Company by Stockholder, the number of Shares listed on Schedule
I
beside
the names of Stockholders shall be adjusted appropriately, and this Agreement
and the obligations hereunder shall attach to any additional Shares or other
voting securities of Company issued to or acquired by each
Stockholder.
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9. Action
in Stockholder Capacity Only.
Nothing
in this Agreement shall have the effect of restricting any Stockholder or
affiliate of Stockholder who is a director of the Company from exercising his
fiduciary duties as required by applicable law.
10. Miscellaneous.
10.1. Disclosure.
Each
Stockholder shall permit Buyer and the Company to publish and disclose in all
documents and schedules filed with the Securities and Exchange Commission,
and
any press release or other disclosure document that Buyer or the Company
determines to be necessary or desirable in connection with the Merger and any
transactions related to the Merger, such Stockholder’s identity and ownership of
Shares and the nature of such Stockholder’s commitments, arrangements and
understandings under this Agreement.
10.2. Further
Assurances.
Subject
to the terms and conditions of this Agreement, each Stockholder shall use its
best efforts to take, or cause to be taken, all actions, and to do, or cause
to
be done, all things necessary to fulfill such Stockholder’s obligations under
this Agreement. Each Stockholder shall at all times publicly support the Merger.
10.3. Notices.
All
notices, documents, or other communications to be given hereunder shall be
in
writing and shall be deemed validly given if delivered by messenger, facsimile
transmission (with a confirming copy sent by overnight courier), or express
overnight delivery, or sent by certified mail, return receipt requested, as
follows:
If
to
Buyer, to:
Liberty
Partners Holdings 28 LLC
c/o
Liberty Partners
1177
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopier: 000-
000-0000
Attention:
G. Xxxxxxx Xxxxxxx
with
a
copy (which shall not constitute notice) to:
Blank
Rome LLP
Xxx
Xxxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Attention:
Xxxxxx Xxxxxx, Esquire
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If
to the
Stockholders, to:
Camden
Partners Holdings, LLC
000
Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000
Attention:
Xxxxx Xxxxxxx
with
a
copy (which shall not constitute notice) to:
WilmerHale
0000
Xxxxxx Xxxx. Xxxxx 0000
XxXxxx,
XX 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000
Attention:
Xxxxxxx X. Xxxxx, Esquire
or
such
other persons or addresses as may be designated in writing by the party to
receive such notice. Any notice delivered by messenger shall be deemed received
when such delivery is tendered; notices sent by facsimile transmission shall
be
deemed received upon faxed confirmation of receipt; notices mailed in the manner
provided above, shall be deemed received on the third day after such are
postmarked; and notices delivered by other methods shall be deemed received
when
actually received by the addressee or its authorized agent.
10.4. Interpretation.
The
words “includes” and “including” and their syntactical variants mean “includes,
but is not limited to” and “including, without limitation,” and corresponding
syntactical variant expressions. The article and section headings contained
in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties hereto and shall not in any way affect the meaning
or
interpretation of this Agreement.
10.5. Entire
Agreement.
This
Agreement together with the documents expressly referred to herein, constitute
the entire agreement and understanding of the parties with respect to the
subject matter contained herein and supersede any and all prior agreements
and
understandings relating to the subject matter hereof.
10.6. Amendments.
This
Agreement may not be modified, amended, altered or supplemented except upon
the
execution and delivery of a written agreement executed by the parties
hereto.
10.7. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns, heirs and personal representatives,
and, in the case of each Stockholder, any other person to whom record or
beneficial ownership of any Shares shall pass, whether by operation of law
or
otherwise, but neither this Agreement nor any rights, interests, remedies or
obligations hereunder shall be assigned by any party hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party hereto, except that Buyer may assign any or all of its rights, interests,
remedies, or obligations hereunder to any of its wholly owned subsidiaries
without the prior written consent of such Stockholder.
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10.8. Governing
Laws.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without giving effect to the principles
of
conflicts of law.
10.9. Injunctive
Relief; Jurisdiction.
Each
Stockholder agrees that irreparable damage would occur and that Buyer would
not
have any adequate remedy at law in the event that any of the provisions of
this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Buyer shall be entitled to
an
injunction or injunctions to prevent breaches by each Stockholder of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States located in the State of Delaware or in any
Delaware state court (collectively, the “Courts”), this being in addition to any
other remedy to which Buyer is entitled at law or in equity. In addition, each
of the parties hereto (i) irrevocably consents to the submission of such party
to the personal jurisdiction of the Courts in the event that any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such party to the
personal jurisdiction by motion or other request for leave from any of the
Courts and (iii) agrees that such party will not bring any action relating
to
this Agreement or any of the transactions contemplated hereby in any court
other
the Courts.
10.10. Counterparts.
This
Agreement may be executed in any number of separate counterparts, each of which
shall be deemed to be an original, but which together shall constitute one
and
the same instrument.
10.11. Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability or the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefore in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
**************
057223.00125/11554403v.2
7
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Voting Agreement
to
be executed and delivered as of the date first above written.
LIBERTY
PARTNERS HOLDINGS 28 LLC
|
By:
|
Liberty
Partners, L.P., its Sole Manager
|
By: PEB
Associates, Inc., its General Partner
By:___________________________
Name: G.
Xxxxxxx Xxxxxxx
Title: President
XXXXXX,
XXXXXXX STRATEGIC PARTNERS FUND, L.P.
By: _________________________________
Name:
Title:
STRATEGIC
ASSOCIATES, L.P.
By: _________________________________
Name:
Title:
XXXXX
X.
XXXXXXX
057223.00125/11554403v.2
Exhibit
A
Merger
Agreement
See
Attached.
057223.00125/11554403v.2
Schedule
I
|
Stockholder
Name
|
Number
of Shares
|
|
Xxxxxx,
Xxxxxxx Strategic Partners Fund, L.P.
|
1,219,210
|
|
Startegic
Associates, L.P.
|
67,555
|
|
Xxxxx
X. Xxxxxxx
|
13,334
(of which all shares are exercisable upon the issuance of
options)
|
