STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of this ___ day of
November, 2009 by and between Camden Learning Corporation, a Delaware
corporation (“Buyer” or “Camden”) and the signatory on the execution page hereof
and its affiliates (collectively, “Seller”).1
WHEREAS,
Camden was organized for the purpose of acquiring, through a merger, capital
stock exchange, asset acquisition or other similar business combination, an
operating business (“Business Combination”); and
WHEREAS,
Camden consummated an initial public offering in November, 2007 (“IPO”) in
connection with which it raised gross proceeds of $53,010,400, a significant
portion of which was placed in a trust fund established by Camden for the
benefit of its public stockholders (the “Trust Account”) pending the
consummation of a Business Combination, or the dissolution and liquidation of
Camden in the event it is unable to consummate a Business Combination on or
prior to November 29, 2009; and
WHEREAS,
Camden has entered into that certain Agreement and Plan of Reorganization as
amended and restated in its entirety on August 11, 2009 and further amended on
October 26th, 2009
by Amendment No. 1 to the Amended and Restated Agreement and Plan of
Reorganization (as amended, the “Merger Agreement”) pursuant to which Dlorah
Subsidiary, Inc., a newly formed, wholly-owned subsidiary of Camden (‘‘Merger
Sub’’), will merge with and into Dlorah, Inc., a South Dakota corporation which
owns and operates National American University (Dlorah, Inc., together with its
divisions and subsidiaries, is referred to herein as “Dlorah”), with Dlorah
surviving as a wholly-owned subsidiary of Camden, as a result of which the
stockholders of Dlorah will contribute all of the outstanding capital stock of
Dlorah to Camden in exchange for shares of a newly created class of common
stock, common stock purchase warrants and restricted shares of Camden’s
currently authorized common stock (the “Acquisition”); and
WHEREAS,
pursuant to certain provisions in Camden’s Certificate of Incorporation, as
amended (the “Certificate of Incorporation”), a holder of Camden’s shares of
common stock, par value $.0001 per share (the “Common Stock”), issued in
Camden’s initial public offering (“IPO”) may, if it votes against the Business
Combination, demand that Camden redeem such Common Stock into cash (“Redemption
Rights”); and
WHEREAS,
the Acquisition will not be consummated if the holders of 30% or more of the
Common Stock issued in the IPO vote against the Acquisition and request
Redemption Rights; and
1 “Affiliates” shall have the meaning ascribed
to such term under Rule 501 of Regulation D of the Securities Exchange Act of
1934, as amended.
WHEREAS,
Buyer has requested Seller sell, and Seller has agreed to sell, the number of
shares of Common Stock set forth on the signature page hereof (the “Shares”);
and
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE
I
Purchase
and Closing
Section
1.01 Purchase. Seller
hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller
at the Closing (as defined below) the Shares at $____ per share (the “Purchase
Price Per Share”) for the aggregate purchase price set forth on the signature
page hereto (the “Aggregate Purchase Price”). Following the execution
of this Agreement, Buyer hereby agrees to provide irrevocable instructions to
its transfer agent in the form attached hereto as Exhibit A, to deliver
the Aggregate Purchase Price at the Closing. Buyer’s obligation to
purchase the Shares from Seller shall be conditioned on the consummation of the
Acquisition.
Section
1.02 Closing. The closing of the
purchase and sale of the Shares (“Closing”) will occur as soon as practicable,
but in no event more than (1) business day after: (i) the liquidation of Buyer’s
Trust Account in connection with the consummation of the Acquisition and (ii)
the settlement of all (and not less than all) of the Shares following Seller’s
delivery of the Shares to an account specified by Buyer using the Depository
Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System. At the
Closing, Buyer shall pay Seller the Aggregate Purchase Price by wire transfer
from Camden’s Trust Account of immediately available funds to an account
specified by Seller. It shall be a condition to the obligation of
Buyer on the one hand and Seller on the other hand, to consummate the transfer
of the Shares and payment of the Aggregate Purchase Price contemplated hereunder
that the other party’s representations and warranties are true and correct at
the Closing with the same effect as though made on such date, unless waived in
writing by the party to whom such representations and warranties are
made.
ARTICLE
II
Voting
of the Shares; Proxy and Waiver of Redemption
Section
2.01 Voting;
Redemption. In further consideration of the Aggregate Purchase
Price, Seller hereby agrees that as soon as practicable, Seller will send
electronic and written instructions to its prime broker holding the Shares to
vote the Shares in favor of the Acquisition and each of the other proposals (the
“Proposals”) to be submitted at the special meeting, or adjournment thereof
called for by Camden for the purpose of voting upon (i) the Acquisition and (ii)
any other proposal set forth in Camden’s definitive proxy statement describing
the Acquisition and Proposals (the “Meeting”), each in the manner set forth in
such definitive proxy statement.
2
Section
2.02 Prior Votes. If
Seller has already voted in connection with the Meeting, Seller shall either (i)
send electronic and written instructions to its prime broker holding the Shares
to withdraw and revoke its vote against the Acquisition and Proposals with
respect to the Shares and shall then send electronic and written instructions to
its prime broker to vote the Shares in accordance with Section 2.01 or (ii)
continue to vote the Shares in favor of the Acquisition and the Proposals; provided, further, that in all
applicable cases, Seller shall rescind its demand, or not demand, its Redemption
Rights with respect to the Shares.
Section
2.03 Appointment of
Proxy. Seller hereby appoints Xxxxx Xxxxxxx as its true and
lawful proxy and attorney-in-fact, with full power of
substitution, to vote all of the Shares in accordance with the terms of this
Agreement. The proxy and power of attorney
granted herein shall be deemed to be coupled with an interest, shall be irrevocable during the term of this Agreement, and shall
survive the death, disability, incompetency, bankruptcy, insolvency or
dissolution of Seller. Furthermore, Seller will, from time to time as reasonably
requested by Buyer, execute and deliver such further instruments, ancillary
agreements or other documents or take such other actions as may be necessary or
advisable to give effect to, confirm, evidence or effectuate the purposes of the
proxy granted by this Section 2.03. Upon the
termination of this Agreement in accordance with Section 7.01, this Section 2.03
shall be of no further force and effect.
Section
2.04 Evidence of
Vote. Seller shall provide further evidence of both (i) its
vote in favor of the Acquisition and Proposals, and (ii) its non-demand or
withdrawal of Redemption Rights, within one (1) business day of any reasonable
request by Buyer for such evidence.
Section
2.05 Waiver of Right of
Redemption. By entering into this Agreement, Seller hereby
waives its rights to redeem the Shares. The waiver granted by Seller
pursuant to this Section 2.05 is irrevocable unless and until this Agreement is
terminated in accordance with Section 7.01 and is granted in consideration of
Buyer entering into this Agreement and incurring certain related fees and
expenses.
ARTICLE
III
Representations
and Warranties of the Seller
Seller
hereby represents and warrants to Buyer on the date hereof and on the Closing
Date that:
Section
3.01 Sophisticated
Seller. Seller is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the sale of Shares to
Buyer.
Section
3.02 Independent
Investigation. Seller, in making the decision to sell the
Shares to Buyer, has not relied upon any oral or written representations or
assurances from Buyer or any of its officers, directors or employees or any
other representatives or agents of Buyer other than as set forth in this
Agreement. Seller has had access to all of the filings made by Camden
with the SEC, pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and the Securities Act of 1933, as amended, in each case to the
extent available publicly via the SEC’s Electronic Data Gathering, Analysis and
Retrieval system.
3
Section
3.03 Authority. This
Agreement has been validly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery thereof by Buyer, 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 Seller does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Seller is a
party which would prevent Seller from performing its obligations hereunder or
(ii) any law, statute, rule or regulation to which Seller is
subject.
Section
3.04 No Legal Advice from
Buyer. Seller acknowledges that is has had the
opportunity to review this Agreement and the transactions contemplated by this
Agreement with Seller’s own legal counsel, investment and tax
advisors. Seller is not relying on any statements or representations
of Buyer or any of its representatives or agents for legal, tax or investment
advice with respect to this Agreement or the transactions contemplated by the
Agreement.
Section
3.05 Ownership of
Shares. Seller is the legal and beneficial owner of the Shares
and will transfer to Buyer at the Closing good and marketable title to the
Shares free and clear of any liens, claims, security interests, options, charges
or any other encumbrance whatsoever. The Seller beneficially owned
all of the Shares as of the close of the trading day on November 5, 2009 and has
the sole right to exercise Redemption Rights and vote the Shares, whether at the
Meeting or upon action by written consent, with respect to all of the
Shares. Except as provided by this Agreement, Seller has not, directly or
indirectly, granted any proxies or entered into any voting trust or other
agreement or arrangement with respect to the voting, regardless of whether such
vote would occur at the Meeting or upon action by written consent, of any of the
Shares.
Section
3.06 Number of
Shares. The Shares being transferred pursuant to this
Agreement represent all of the Common Stock beneficially owned by Seller as of
the date hereof, including any such shares of Common Stock which may result from
the exercise of any option, call or other derivative security
interest.
Section
3.07 Cash Account. If
the Shares are not currently held in an account which prohibits rehypothecation
by the Seller’s prime broker, Seller will transfer the Shares into such an
account as soon as practicable following the execution of this Agreement; provided, however, in no event
shall such transfer occur more than two (2) business days from the execution of
this Agreement.
Section
3.08 Seller
Taxes. Seller understands that Seller (and not the Buyer)
shall be responsible for any and all tax liabilities of Seller that may arise as
a result of the transactions contemplated by this Agreement.
4
Section
3.09 Aggregate Purchase Price
Negotiated. Seller represents and understands that both the
number of Shares and the Aggregate Purchase Price were negotiated figures by the
parties and that the terms and conditions by the parties of this Agreement may
differ from arrangements entered into with other holders of Common
Stock.
Section
3.10 Finder’s Fees. No
investment banker, broker, finder or other intermediary is entitled to a fee or
commission from Camden in respect of this Agreement based upon any arrangement
or agreement made by or on behalf of Seller.
ARTICLE
IV
Representations
and Warranties of the Buyer
Buyer
hereby represents and warrants to Seller on the date hereof and on the Closing
Date that:
Section
4.01 Sophisticated
Buyer. Buyer is sophisticated in financial matters and is able
to evaluate the risks and benefits attendant to the purchase of Shares from
Seller.
Section
4.02 Independent
Investigation. Buyer, in making the decision to purchase the
Shares from Seller, has not relied upon any oral or written representations or
assurances from Seller or any of its officers, directors, partners or employees
or any other representatives or agents of Seller other than as set forth in this
Agreement.
Section
4.03 Authority. This
Agreement has been validly authorized, executed and delivered by Buyer and
assuming the due authorization, execution and delivery thereof by Seller, 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 Buyer does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Buyer is a party
which would prevent Buyer from performing its obligations hereunder or (ii) any
law, statute, rule or regulation to which Buyer is subject.
Section
4.04 No Legal Advice from
Seller. Buyer acknowledges that is has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Buyer’s own legal counsel, investment and tax advisors. Buyer is
relying solely on such counsel and advisors and not on any statements or
representations of Seller or any of its representatives or agents for legal, tax
or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
Section
4.05 Buyer Taxes. Buyer
understands that Buyer (and not the Seller) shall be responsible for any and all
tax liabilities of Buyer that may arise as a result of the transactions
contemplated by this Agreement.
5
ARTICLE
V
Negative
Covenants of the Seller
Section
5.01 No Further Acquisitions of
Camden
Securities. Seller hereby covenants and agrees that following
the execution of this Agreement and prior to Closing, Seller shall not acquire
any Common Stock, other securities of Camden convertible into or
exchangeable for shares of Common Stock in Camden or any options, calls or other
rights to acquire Common Stock of Camden or similar securities or rights that
are derivative of, or provide economic benefits based, directly or indirectly,
on the value or price of, any Common Stock or other securities of
Camden.
Section
5.03 No Borrowing of the
Shares. Seller hereby covenants and agrees that it shall not
allow the Shares to be borrowed by, or lent to, any other person or entity
whatsoever during the term of this Agreement.
Section
5.02 No Other Proxies or Voting
Agreements. Seller hereby covenants and agrees that except
pursuant to the terms of this Agreement, Seller shall not, directly or
indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any of the Shares,
regardless of whether such vote would occur at the Meeting or upon action by
written consent or (ii) sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect assignment, transfer, encumbrance or
other disposition of, any of the Shares during the term of this
Agreement. Seller shall not seek or solicit any such assignment, transfer,
encumbrance or other disposition or any such contract, option or other
arrangement or understanding with respect to the Shares and agrees to notify
Buyer promptly, and to provide all details requested by Buyer, if Seller shall
be approached or solicited, directly or indirectly, by any person with respect
to the Shares.
ARTICLE
VI
Acknowledgement;
Waiver
Section
6.01 Acknowledgement;
Waiver. Seller (i) acknowledges that Buyer may possess or have
access to material non-public information which has not been communicated to
Seller; (ii) hereby waives any and all claims, whether at law, in equity or
otherwise, that he, she, or it may now have or may hereafter acquire, whether
presently known or unknown, against Buyer or any of its officers, directors,
employees, agents, affiliates, subsidiaries, successors or assigns relating to
any failure to disclose any non-public information in connection with the
transactions contemplated by this Agreement, including without limitation, any
such claims arising under the securities or other laws, rules and regulations,
and (iii) is aware that Buyer is relying on the foregoing acknowledgement and
waiver in clauses (i) and (ii) above, respectively, in connection with the
transactions contemplated by this Agreement.
6
ARTICLE
VII
Miscellaneous
Section
7.01 Termination. Notwithstanding
any provision in this Agreement to the contrary, this Agreement shall become
null and void and of no further force and effect upon the earlier to occur: (i)
termination by the written agreement of the parties to this Agreement or (ii)
the day on which the Company terminates the Acquisition.
Section
7.02 Counterparts;
Facsimile. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument. This Agreement or any counterpart may be executed via
facsimile transmission, and any such executed facsimile copy shall be treated as
an original.
Section
7.03 Governing
Law. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the State of
Delaware. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to this
Agreement shall, to the fullest extent applicable, be brought and enforced
first in the Delaware Chancery Court, then to such other court in the State of
Delaware as appropriate and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. Each of the parties hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
Section
7.04 Remedies
Cumulative. Each of the parties hereto acknowledges and agrees
that, in the event of any breach of any covenant or agreement contained in this
Agreement by the other party, money damages may be inadequate with respect to
any such breach and the non-breaching party may have no adequate remedy at
law. It is accordingly agreed that each of the parties hereto shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to seek injunctive relief and/or to compel specific
performance to prevent breaches by the other party hereto of any covenant or
agreement of such other party contained in this Agreement. Accordingly,
Seller hereby agrees Buyer is entitled to an injunction prohibiting any conduct
by the Seller in violation of this Agreement and shall not seek the posting of
any bond in connection with such request for an injunction. Furthermore, in any
action by Buyer to enforce this Agreement, Seller waives its right to assert any
counterclaims and its right to assert set-off as a defense. The
prevailing party agrees to pay all costs and expenses, including reasonable
attorneys' and experts' fees that such prevailing party may incur in connection
with the enforcement of this Agreement.
Section
7.05 Severability. If
any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions and covenants of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated
7
Section
7.06 Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be
assigned by either party without the prior written consent of the other party
hereto.
Section
7.07 Headings. The
descriptive headings of the Sections hereof are inserted for convenience only
and do not constitute a part of this Agreement.
Section
7.08 Entire Agreement; Changes in
Writing. This Agreement constitutes the entire agreement among
the parties hereto and supersedes and cancels any prior agreements,
representations and warranties, whether oral or written, among the parties
hereto relating to the transaction contemplated hereby. Neither this
Agreement not any provision hereof may be changed or amended orally, but only by
an agreement in writing signed by the other party hereto.
Section
7.09 Trust Waiver. The
Trust Account is invested in U.S. government securities in a trust account at XX
Xxxxxx Xxxxx Bank, N.A. and held in trust by Continental Stock Transfer &
Trust Company (the “Trustee”) pursuant to the Investment Management Trust
Account Agreement, dated as of November 29, 2007, between Camden and
Trustee. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller agrees that it does
not now have, and shall not at any time have, any claim to, or make any claim
against, the Trust Account or any asset contained therein, regardless of whether
such claim arises as a result of, in connection with or relating in any way to,
the business relationship between Seller, on the one hand, and Camden, on the
other hand, this Agreement, or any other agreement or any other matter, and
regardless of whether such claim arises based on contract, tort, equity or any
other theory of legal liability. Other than with respect to the Aggregate
Purchase Price to be paid to Seller in connection with this Agreement, Seller
hereby irrevocably waives any and all claims it may have, now or in the future
(in each case, however, prior to the consummation of a business combination),
and will not seek recourse against, the Trust Account for any other reason
whatsoever in respect thereof. Other than with respect to an action for the
recovery of the Aggregate Purchase Price to be paid to Seller in connection with
this Agreement, in the event Seller commences any other action or proceeding
based upon, in connection with, relating to or arising out of any matter
relating to Camden, which proceeding seeks, in whole or in part, relief against
the Trust Account or the public stockholders of Camden, whether in the form of
money damages or injunctive relief, Camden shall be entitled to recover from
Seller the associated legal fees and costs in connection with any such
action.
[Signature
Page Follows]
8
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
| CAMDEN LEARNING CORPORATION | |||
|
|
By:
|
||
| Name | |||
| Title | |||
| [SELLER] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
Purchase
Price Per Share:
Number of
Shares:
Aggregate
Purchase Price:
9
Exhibit A
CAMDEN
LEARNING CORPORATION
000
XXXX XXXXX XXXXXX, XXXXX 0000
XXXXXXXXX,
XX 00000
October
__, 2009
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx XxXxxxx
Re: Trust
Account No.
Gentlemen:
Camden Learning Corporation (the
“Company”) is providing these irrevocable instructions to you in connection with
the above described Trust Account established in connection with and pursuant to
an Investment Management Trust Agreement dated as of August 1, 2007 between the
Company and Continental Stock Transfer & Trust Company as Trustee (the
“Trust Agreement”). Upper case terms used herein shall have the
meanings ascribed to such terms in the Trust Agreement.
In the event the Company delivers to
you a Termination Letter substantially in the form of Exhibit A to the
Trust Agreement, in addition to the other documents required to be delivered
pursuant to such document, assuming you are the Trustee on such date, then, in
consideration for the electronic transfer of [NUMBER] shares of the Company’s
common stock to an account specified by the Company (the “Company Account”) upon
the settlement of the shares in the Company Account, you are irrevocably
instructed to deliver the sum of [AMOUNT] to [SELLER] in accordance with the
bank wire instructions provided to you below:
[INSERT
INSTRUCTIONS]
10
Exhibit
A
The address for [SELLER] is
[ADDRESS]. The contact person for [SELLER] is [PERSON]. He
can be reached at [NUMBER].
Kindly acknowledge where indicated
below, your receipt and understanding of these instructions and return a copy to
Ellenoff Xxxxxxxx & Schole LLP, attn: Xxxxx X. Xxxxxxx, Esq. facsimile
number (000)-000-0000.
A facsimile signed and electronically
delivered copy of this letter shall be deemed an original.
| Very truly yours, | |||
| CAMDEN LEARNING CORPORATION | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Acknowledged
and Agreed:
CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
By:
____________________________
Name:
Title:
