AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
AMENDED
AND RESTATED SUBSCRIPTION AGREEMENT
AMENDED
AND RESTATED SUBSCRIPTION AGREEMENT (this “Agreement”) made as of this 20th
day of November, 2007 for the benefit of Camden Learning Corporation, a Delaware
corporation (the “Company”), having its principal place of business at 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 by Camden Learning, LLC
(“Subscriber”).
WHEREAS,
the Company and the Subscriber entered into a subscription agreement dated
as of
May 16, 2007 (the “Original Agreement”), and wish to amend and restate the
Original Agreement as set forth herein;
WHEREAS,
the Company desires to sell on a private placement basis (the “Offering”) an
aggregate of 2,800,000 warrants (the “Warrants”) of the Company for a purchase
price of $1.00 per Warrant. Each Warrant is exercisable to purchase one share
of
Common Stock at an exercise price of $5.50 per share during the period
commencing on the later of: (i) one year from the date of the prospectus
relating to the Company’s IPO (as defined below) and (ii) the completion of a
Business Combination (as defined in Section 5 below) and expiring on the fourth
anniversary of the date of the prospectus relating to the Company’s IPO (as
defined below);
WHEREAS,
Subscriber wishes to purchase the Warrants and the Company wishes to accept
such
subscription.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Subscriber hereby agree as
follows
1.
Agreement
to Subscribe
1.1. Purchase
and Issuance of the Warrants.
Upon
the terms and subject to the conditions of this Agreement, Subscriber hereby
agrees to purchase from the Company, and the Company hereby agrees to sell
to
the Subscriber, on the Closing Date, the Warrants for an aggregate purchase
price of $2,800,000 (the “Purchase Price”).
1.2. Delivery
of the Purchase Price.
Upon
execution of this Agreement, the undersigned is hereby bound to fulfill its
obligations hereunder and hereby irrevocably commits to deliver into a trust
account at a financial institution to be chosen by the Company, maintained
by
Continental Stock Transfer & Trust Company, acting as Trustee, on the date
of Closing (as hereinafter defined), the Purchase Price in immediately available
funds by certified bank check, wire transfer or such other form of payment
as
shall be acceptable to the Trustee, in its sole and absolute discretion, at
the
Closing.
1.3. Closing.
The
closing (the “Closing”) of the Offering, shall take place at the offices of the
Company, prior to the effective date of the registration statement pursuant
to
which the Company proposes to register its initial public offering (the “IPO”)
of 6,250,000 units of Common Stock and Warrants (the “Closing
Date”).
2.
Representations
and Warranties of the Subscriber
Subscriber
represents and warrants to the Company that:
2.1. No
Government Recommendation or Approval.
Subscriber understands that no United States federal or state agency has passed
upon or made any recommendation or endorsement of the Company or the Offering
of
the Warrants or the Common Stock underlying the Warrants (the “Warrant Shares”
and, collectively with the Warrants, the “Securities”).
2.2. Regulation
D Offering.
Subscriber represents that it is an “accredited investor” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”) and acknowledges the sale contemplated hereby is
being made in reliance on a private placement exemption to “Accredited
Investors” within the meaning of Section 501(a) of Regulation D under the
Securities Act or similar exemptions under state law; and, accordingly, such
securities will be “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, and therefore may not be offered, pledged or sold
by
it, directly or indirectly, in the United States without registration under
United States federal and state securities laws and Subscriber understands
the
certificates representing the such securities will contain a legend in respect
of such restrictions.
2.3. Intent.
Subscriber is purchasing the Warrants solely for investment purposes, for the
Subscriber’s own account and not for the account or benefit of any U.S. Person,
and not with a view towards the distribution thereof and Subscriber has no
present arrangement to sell the Securities to or through any person or entity.
Subscriber shall not engage in hedging transactions with regard to the Warrants
and the underlying securities unless in compliance with the Securities
Act.
2.4. Restrictions
on Transfer.
Subscriber understands the Warrants are being offered in a transaction not
involving a public offering in the United States within the meaning of the
Securities Act. The Securities have not been registered under the Securities
Act, and, if in the future the Subscriber decides to offer, resell, pledge
or
otherwise transfer the Securities, such Securities may be offered, resold,
pledged or otherwise transferred only (A) pursuant to an effective registration
statement filed under the Securities Act, (B) pursuant to an exemption from
registration under Rule 144 promulgated under the Securities Act, if available,
or (C) pursuant to any other exemption from the registration requirements of
the
Securities Act, and in each case in accordance with any applicable securities
laws of any state or any other jurisdiction. Subscriber agrees that if any
transfer of its Securities or any interest therein is proposed to be made,
as a
condition precedent to any such transfer, Subscriber may be required to deliver
to the Company an opinion of counsel satisfactory to the Company. Absent
registration or another exemption from registration, the Subscriber agrees
that
it will not resell the Securities. Subscriber further understands and
acknowledges the Securities and Exchange Commission (the “SEC”) has taken the
position the Subscriber would be considered a promoter under the Securities
Act
and that promoters or affiliates of a blank check company and their transferees,
both before and after a business combination, would act as “underwriters” under
the Securities Act when reselling the securities of that blank check company.
Accordingly, Rule 144 promulgated under the Securities Act will not be available
to the Subscriber for the resale of the Securities despite technical compliance
with the requirements of Rule 144, in which event the resale transactions would
need to be made through a registered offering.
2
2.5. Sophisticated
Investor.
(i)
Subscriber is sophisticated in financial matters and is able to
evaluate the risks and benefits of the investment in the
Securities.
(ii)
Subscriber is aware that an investment in the Warrants is highly
speculative and subject to substantial risks because, among other things, none
of the Securities have been registered under the Securities Act and therefore
cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available. Subscriber is able to bear the
economic risk of its investment in the Securities for an indefinite period
of
time. Notwithstanding the foregoing, Subscriber further understands and
acknowledges the SEC has taken the position that the Subscriber is considered
a
promoter under the Securities Act and that promoters or affiliates of a blank
check company and their transferees, both before and after a Business
Combination, would act as an “underwriter” under the Securities Act when
reselling the securities of that blank check company. Accordingly, Rule 144
promulgated under the Securities Act would not be available for the resale
of
the Securities despite technical compliance with the requirements of Rule 144,
in which event the resale transactions would need to be made through a
registered offering.
2.6.
Independent
Investigation.
Subscriber, in making the decision to purchase the Warrants, has relied upon
an
independent investigation of the Company and has not relied upon any information
or representations made by any third parties or upon any oral or written
representations or assurances from the Company, its officers, directors or
employees or any other representatives or agents of the Company, other than
as
set forth in this Agreement. Subscriber is familiar with the business,
operations and financial condition of the Company and has had an opportunity
to
ask questions of, and receive answers from, the Company’s officers and directors
concerning the Company and the terms and conditions of the offering of the
Warrants and has had full access to such other information concerning the
Company as the Subscriber has requested. Subscriber confirms that all documents
that it has requested have been made available and that the Subscriber has
been
supplied with all of the additional information concerning this investment
which
Subscriber has requested.
2.7. Authority.
This
Agreement has been validly authorized, executed and delivered by Subscriber
and
is a valid and binding agreement enforceable in accordance with its terms,
subject to the general principles of equity and to bankruptcy or other laws
affecting the enforcement of creditors’ rights generally. The execution,
delivery and performance of this Agreement by Subscriber does not and will
not
conflict with, violate or cause a breach of any agreement, contract or
instrument to which Subscriber is a party.
2.8. No
Legal Advice from Company.
Subscriber acknowledges it has had the opportunity to review this Agreement
and
the transactions contemplated by this Agreement and the other agreements entered
into between the parties hereto with the Subscriber’s own legal counsel and
investment and tax advisors. Except for any statements or representations of
the
Company made in this Agreement and the other agreements entered into between
the
parties hereto, Subscriber is relying solely on such counsel and advisors and
not on any statements or representations of the Company or any of its
representatives or agents for legal, tax or investment advice with respect
to
this investment, the transactions contemplated by this Agreement or the
securities laws of any jurisdiction.
3
2.9.
Reliance
on Representations and Warranties.
Subscriber understands the Warrants are being offered and sold to Subscriber
in
reliance on exemptions from the registration requirements under the Securities
Act, and analogous provisions in the laws and regulations of various states,
and
that the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Subscriber
set
forth in this Agreement in order to determine the applicability of such
provisions.
2.10. No
Advertisements.
The
undersigned is not subscribing for the Warrants as a result of or subsequent
to
any advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio,
or
presented at any seminar or meeting.
2.11. Legend.
Subscriber acknowledges and agrees the certificates evidencing the Warrants
and
the Warrant Shares shall bear a restrictive legend (the “Legend”), in form and
substance as set forth in Section 4 hereof, prohibiting the offer, sale, pledge
or transfer of the securities, except (i) pursuant to an effective registration
statement covering these securities under the Securities Act or (ii) pursuant
to
any other exemptions from the registration requirements under the Securities
Act
and such laws which, in the opinion of counsel for this Company, is
available.
3.
Representations
and Warranties of the Company
The
Company represents and warrants to Subscriber that:
3.1.
Valid
Issuance of Capital Stock.
The
total number of shares of all classes of capital stock which the Company has
authority to issue is 20,000,000 shares of Common Stock and 1,000,000 shares
of
Preferred Stock. As of the date hereof, the Company has 1.562.500 shares of
Common Stock and no shares of Preferred Stock issued and outstanding. All of the
issued shares of capital stock of the Company have been duly authorized, validly
issued, and are fully paid and non-assessable.
3.2.
Organization
and Qualification.
The
Company is a corporation duly incorporated and existing in good standing under
the laws of the state of Delaware and has the requisite corporate power to
own
its properties and assets and to carry on its business as now being
conducted.
3.3.
Authorization;
Enforcement.
(i) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Warrants and
the
underlying securities in accordance with the terms hereof, (ii) the execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly authorized by
all
necessary corporate action, and no further consent or authorization of the
Company or its Board of Directors or stockholders is required, and (iii) this
Agreement constitutes valid and binding obligations of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization, or similar laws relating to, or affecting generally
the enforcement of, creditors’ rights and remedies or by equitable principles of
general application and except as enforcement of rights to indemnity and
contribution may be limited by federal and state securities laws or principles
of public policy.
4
3.4.
No
Conflicts.
The
execution, delivery and performance of this Agreement and the consummation
by
the Company of the transactions contemplated hereby do not (i) result in a
violation of the Company’s Certificate of Incorporation or Bylaws or (ii)
conflict with, or constitute a default under any agreement, indenture or
instrument to which the Company is a party. Other than any SEC or state
securities filings which may be required to be made by the Company subsequent
to
the Closing, and any registration statement which may be filed pursuant thereto,
the Company is not required under federal, state or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency or self-regulatory entity
in order for it to perform any of its obligations under this Agreement or issue
the Common Stock in accordance with the terms hereof.
4. Legends
4.1.
Legend.
The
Company will issue the Warrants, and when issued, the Warrant Shares, purchased
by the Subscriber in the name of the Subscriber. The Securities will bear the
following Legend and appropriate “stop transfer” instructions:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN A SECURITIES ESCROW AGREEMENT (THE “AGREEMENT”) AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE
TERM
OF THE ESCROW PERIOD (AS DEFINED IN THE AGREEMENT).”
5
4.2.
Subscriber’s
Compliance.
Nothing
in this Section 4 shall affect in any way the Subscribers’ obligations and
agreements to comply with all applicable securities laws upon resale of the
Securities.
4.3.
Company’s
Refusal to Register Transfer of the Securities.
The
Company shall refuse to register any transfer of the Securities, if in the
sole
judgment of the Company such purported transfer would not be made (i) pursuant
to an effective registration statement filed under the Securities Act, or (ii)
pursuant to an available exemption from the registration requirements of the
Securities Act.
5. Escrow.
Upon
consummation of the IPO, the holders of the Warrants shall enter into a
securities escrow agreement (the “Escrow Agreement”) with Continental Stock
Transfer & Trust Company, whereby the Warrants shall be held in escrow until
the earlier of (i) the 90th
day
following consummation of a Business Combination (as defined therein) or (ii)
liquidation of the Company.
6.
Securities
Laws Restrictions.
In
addition to the restrictions contained in the Escrow Agreement, subscriber
agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all
or
any part of the Securities unless, prior thereto (a) a registration statement
on
the appropriate form under the Securities Act and applicable state securities
laws with respect to the Securities proposed to be transferred shall then be
effective or (b) the Company shall have received an opinion from counsel
reasonably satisfactory to the Company, that such registration is not required
because such transaction complies with the Securities Act and the rules
promulgated by the Securities and Exchange Commission thereunder and with all
applicable state securities laws.
7.
Waiver
of Liquidation Distributions.
In
connection with the Securities purchased pursuant to this Agreement, and with
respect to any Common Stock purchased by Subscriber prior to the private
placement, Subscriber hereby waives any and all right, title, interest or claim
of any kind in or to any liquidating distributions by the Company in the event
of a liquidation of the Company upon the Company’s failure to timely complete a
Business Combination. For purposes of clarity, in the event Subscriber purchases
shares of Common Stock in the IPO or in the aftermarket, any additional shares
so purchased shall be eligible to receive any liquidating distributions by
the
Company. In no event will a Subscriber have the right to exercise any Warrants
prior to the later of: (i) one year from the date of the prospectus relating
to
the Company’s IPO and (ii) the consummation of a Business
Combination.
8.
Forfeiture
of Warrants.
8.1. Failure
to Consummate Business Combination.
The
Warrants shall be forfeited to the Company in the event that the Company does
not consummate a Business Combination within 24 months from the consummation
of
the IPO.
6
8.2. Termination
of Rights as holder; Escrow.
If the
Warrants are forfeited in accordance with this Section 8, then after such time
the Subscriber (or successor in interest), shall no longer have any rights
as a
holder of such Warrants, and the Company shall take such action as is
appropriate to cancel such Warrants. To effectuate the foregoing, all
certificates representing the Warrants shall be held in escrow as provided
in
Section 5 hereof. In addition, Subscriber hereby irrevocably grants the Company
a limited power of attorney for the purpose of effectuating the
foregoing.
9. Rescission
Right Waiver and Indemnification.
9.1.
Subscriber
understands and acknowledges an exemption from the registration requirements
of
the Securities Act requires there be no general solicitation of purchasers
of
the Warrants. In this regard, if the IPO were deemed to be a general
solicitation with respect to the Warrants, the offer and sale of such Warrants
may not be exempt from registration and, if not, the Subscriber may have a
right
to rescind its purchase of the Warrants. In order to facilitate the completion
of the Offering and in order to protect the Company, its stockholders and the
trust account from claims that may adversely affect the Company or the interests
of its stockholders, Subscriber hereby agrees to waive, to the maximum extent
permitted by applicable law, any claims, right to xxx or rights in law or
arbitration, as the case may be, to seek rescission of its purchase of the
Warrants. Subscriber acknowledges and agrees this waiver is being made in order
to induce the Company to sell the Warrants to the Subscriber. Subscriber agrees
the foregoing waiver of rescission rights shall apply to any and all known
or
unknown actions, causes of action, suits, claims or proceedings (collectively,
“Claims”) and related losses, costs, penalties, fees, liabilities and damages,
whether compensatory, consequential or exemplary, and expenses in connection
therewith, including reasonable attorneys’ and expert witness fees and
disbursements and all other expenses reasonably incurred in investigating,
preparing or defending against any Claims, whether pending or threatened, in
connection with any present or future actual or asserted right to rescind the
purchase of the Warrants hereunder or relating to the purchase of the Warrants
and the transactions contemplated hereby.
9.2. Subscriber
agrees not to seek recourse against the trust account for any reason whatsoever
in connection with its purchase of the Warrants or any Claim that may arise
now
or in the future.
9.3. Subscriber
acknowledges and agrees the stockholders of the Company and Xxxxxx Xxxxxx &
Co. Inc. are and shall be third-party beneficiaries of the foregoing provisions
of this Agreement.
9.4.
Subscriber
agrees that to the extent any waiver of rights under this Section 9 is
ineffective as a matter of law, Subscriber has offered such waiver for the
benefit of the Company as an equitable right that shall survive any statutory
disqualification or bar that applies to a legal right. Subscriber acknowledges
the receipt and sufficiency of consideration received from the Company hereunder
in this regard.
10. Terms
of the Warrant
7
The
Warrants are substantially identical to the warrants included in the units
offered in the IPO, except: (i) they are not being registered in the
Registration Statement; (ii) they are not transferable until the consummation
of
a Business Combination; (iii) they are not redeemable so long as they are held
by the initial holder thereof (or any of their permitted transferees) and (iv)
they may be exercised on a “cashless” basis if held by the initial holder
thereof or its permitted assigns. The Warrant Shares will be granted certain
registration rights. In no event will the Company be required to net cash settle
the Warrant exercise.
11. Voting
of Shares.
Subscriber
agrees to vote the shares of Common Stock owned by him immediately before this
private placement in accordance with the majority of the shares of Common Stock
voted by the public stockholders. Subscriber further agrees to vote the Common
Stock acquired in the IPO or the aftermarket in favor of a Business Combination
that the Company negotiates and presents for approval to the Company’s
stockholders.
12.
Governing
Law; Jurisdiction;
Waiver
of Jury Trial
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware for agreements made and to be wholly performed within such
state. The parties hereto hereby waive any right to a jury trial in connection
with any litigation pursuant to this Agreement and the transactions contemplated
hereby.
13. Assignment;
Entire Agreement; Amendment
13.1. Assignment.
Neither
this Agreement nor any rights hereunder may be assigned by any party to any
other person other than by Subscriber to a person agreeing to be bound by the
terms hereof.
13.2. Entire
Agreement.
This
Subscription Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter thereof and merges and supersedes all
prior
discussions, agreements and understandings of any and every nature among
them.
13.3. Amendment.
Except
as expressly provided in this Agreement, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
13.4.
Binding
upon Successors.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and permitted
assigns.
14.
Notices;
Indemnity
8
14.1
Notices.
Unless
otherwise provided herein, any notice or other communication to a party
hereunder shall be sufficiently given if in writing and personally delivered
or
sent by facsimile or other electronic transmission with copy sent in another
manner herein provided or sent by courier (which for all purposes of this
Agreement shall include Federal Express or other recognized overnight courier)
or mailed to said party by certified mail, return receipt requested, at its
address provided for herein or such other address as either may designate for
itself in such notice to the other. Communications shall be deemed to have
been
received when delivered personally, on the scheduled arrival date when sent
by
next day or 2-day courier service, or if sent by facsimile upon receipt of
confirmation of transmittal or, if sent by mail, then three days after deposit
in the mail. If given by electronic transmission, such notice shall be deemed
to
be delivered (a) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (b) if by
a
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (1) such posting and
(2)
the giving of such separate notice; and (c) if by any other form of electronic
transmission, when directed to the stockholder.
14.2
Indemnification.
Each
party shall indemnify the other against any loss, cost or damages (including
reasonable attorney’s fees and expenses) incurred as a result of such party’s
breach of any representation, warranty, covenant or agreement in this
Agreement.
15.
Counterparts
This
Agreement may be executed in one or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
16.
Survival;
Severability
16.1. Survival.
The
representations, warranties, covenants and agreements of the parties hereto
shall survive the Closing.
16.2. Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that
no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
17. Headings.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
9
This
subscription is accepted by the Company on the 20th day of November,
2007.
| CAMDEN LEARNING CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Xxxxx
X. Xxxxxxx
President
|
||
| CAMDEN LEARNING, LLC | ||
|
By:
Camden Partners Strategic III, LLC
Its:
Manager
|
||
| |
|
|
|
By:
Camden Partners Strategic Manager, LLC
Its:
Managing Member
|
||
| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Xxxxxx
X. Xxxxxx
Managing
Member
|
||
10
