STOCK VOTING AGREEMENT
STOCK
VOTING AGREEMENT (this “Agreement”), dated as of June 21, 2006 by and between
XXXX X. XXXXXXX (“Stockholder”) 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,
Stockholder is the beneficial owner (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended) 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 his 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 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.
Stockholder hereby revokes any and all previous proxies with respect to the
Shares and irrevocably agrees to vote and otherwise act (including pursuant
to
written consent), or cause the holder of record on any applicable record date
to
vote or otherwise act (including pursuant to written consent), with respect
to
all of the Shares, (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, Stockholder shall,
or shall cause the holder of record on any applicable record to, appear at
such
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum. Stockholder shall not 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. Stockholder
hereby agrees to, execute such additional documents as Buyer may reasonably
request to effectuate the foregoing.
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2. Irrevocable
Proxy.
Stockholder hereby appoints the directors on the Board of Directors of Buyer,
and each of them, as his proxy to vote all of the Shares 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 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.
Stockholder shall not exercise any rights (including under section 262 of the
Delaware General Corporation Law) to demand appraisal of any Shares that may
arise with respect to the Merger or the Merger Agreement.
4. Representations
and Warranties of Stockholder.
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 Stockholder. On the Closing Date, the
Shares will constitute all of the securities of Company owned, beneficially
or
otherwise, by Stockholder. Other than as set forth on Schedule
I
attached
hereto, Stockholder does not hold, whether of record or beneficially, or have
any rights to acquire any shares of Common Stock. 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,
with no limitations, qualifications or restrictions on such rights, subject
to
applicable United States federal and state securities laws and this Agreement.
Stockholder is the beneficial owner of the Shares and currently has, and at
Closing (as defined in the Merger Agreement) will have, good, valid and
marketable title to the 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.
Stockholder has the full right, power and authority to execute and deliver
this
Agreement and to perform all of his obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Stockholder and constitutes a legal, valid and binding
agreement of Stockholder, enforceable against 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
Stockholder nor the consummation by 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 Stockholder or the Shares 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
Stockholder is a party or by which Stockholder is bound.
4.3. Reliance
on Agreement.
Stockholder understands and acknowledges that Merger Sub and Buyer each are
entering into the Merger Agreement in reliance upon Stockholder’s execution and
delivery of this Agreement. 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.
Stockholder shall not, directly or indirectly, take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect.
6. Certain
Covenants of Stockholder.
Except
in accordance with the provisions of this Agreement, Stockholder hereby agrees
with, and covenants to, Buyer as follows:
6.1. Transfer.
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 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 the Shares. Stockholder shall
submit to Company, promptly after the execution of this Agreement, any and
all
certificates representing the Shares and Stockholder agrees with, and hereby
consents to the inscription on all such certificates prior to their prompt
return to 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.”
6.2. Solicitation.
Prior
to the Effective Time (as defined in the Merger Agreement), Stockholder shall
not, and he shall use his best efforts to direct and cause his 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. Stockholder shall immediately cease and cause to be terminated all
existing activities, discussions and negotiations by Stockholder or any of
his
affiliates, or their respective agents or representatives, with respect to
any
Acquisition Proposal. 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.
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6.3. Notifications.
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 Stockholder after the date
hereof.
6.4. Waiver.
Stockholder hereby unconditionally waives all of his 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 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 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 name of
Stockholder 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 Stockholder.
9. Action
in Stockholder Capacity Only.
Stockholder makes no agreement or understanding herein as a director of Company.
Stockholder has executed and delivered this Agreement solely in his capacity
as
a holder of record and beneficial owner of the Shares, and nothing herein shall
limit or affect any actions taken in his capacity as a director of Company.
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10. Miscellaneous.
10.1. Disclosure.
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, Stockholder’s identity and ownership of
Shares and the nature of Stockholder’s commitments, arrangements and
understandings under this Agreement.
10.2. Further
Assurances.
Subject
to the terms and conditions of this Agreement, Stockholder shall use his 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. 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
Stockholder, to:
Xxxx
X.
Xxxxxxx
President
and Chief Executive Officer
Concorde
Career Colleges, Inc.
0000
Xxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxx LLP
0000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx
Xxxx, XX 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000
Attention:
Xxxxxx X. Xxx Xxxx, 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 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 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.
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 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.
**************
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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
_______________________________________
XXXX
X.
XXXXXXX
Exhibit
A
Merger
Agreement
See
Attached.
057223.00125/11554399v.2
Schedule
I
|
Stockholder
Name
|
Number
of Shares
|
|
Xxxx
X. Xxxxxxx
|
699,363
(of which 88,000 issuable upon the exercise of
options)
|
