REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.7
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 23rd
day of November, 2009, by and among Camden Learning Corporation, a Delaware
corporation (the “Company”), and each
of H. & X. Xxxxxxxxxx Limited Partnership, a South Dakota limited
partnership, and Xxxxxx X. Xxxxxxxxxx Living Trust, a South Dakota trust
(each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
This
Agreement is made pursuant to that certain Agreement and Plan of Reorganization,
dated August 7, 2009, as amended by the Amended and Restated Agreement and Plan
of Reorganization, dated August 11, 2009, as further amended by Amendment No. 1
to the Amended and Restated Agreement and Plan of Reorganization by and among
the Company, Dlorah, Inc. and Dlorah Subsidiary Inc., a wholly-owned subsidiary
of the Company (collectively, the “Merger
Agreement”).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:”
1.
DEFINITIONS. Capitalized terms used and not otherwise defined herein that are
defined in the Merger Agreement shall have the meanings given such terms in the
Merger Agreement. The following capitalized terms used herein have the following
meanings:
“Agreement” means this
Agreement, as amended, restated, supplemented, or otherwise modified from time
to time.
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common Stock” means
the common stock, par value $0.0001 per share, of the Company.
“Company” is defined
in the preamble to this Agreement.
“Demand Registration”
is defined in Section 2.1.1.
“Demanding Holder” is
defined in Section 2.1.1.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“Form S-3” is defined
in Section 2.2.4.
“Indemnified Party” is
defined in Section 4.3.
“Indemnifying Party”
is defined in Section 4.3.
“Maximum Number of
Shares” is defined in Section 2.1.4.
“Notices” is defined
in Section 6.2.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Purchaser” is defined
in the preamble to this Agreement.
“Purchaser Indemnified
Party” is defined in Section 4.1.
“Register,” “registered” and
“registration”
mean a registration with respect to the Registrable Securities effected by
preparing and filing a registration statement or similar document in compliance
with the requirements of the Securities Act, and the applicable rules and
regulations promulgated thereunder, and such registration statement becoming
effective.
“Registrable
Securities” means (a) the Common Stock issuable or issued upon conversion
of the Series A Stock, (b) the 2,800,000 common stock warrants representing the
Warrant Consideration and the Common Stock issuable or issued upon exercise or
other conversion of such warrants, (c) any Common Stock, or any Common Stock
issued or issuable (directly or indirectly) upon conversion or exercise of any
other securities of the
Company acquired by the Purchasers after the date hereof, and (d) any warrants,
shares of capital stock or other securities of the Company issued as a dividend
or other distribution with respect to or in exchange for or in replacement of
the shares of Common Stock referenced in clauses (a), (b) and (c) above. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when: (i) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act;
(ii) such securities shall have been otherwise transferred, new certificates for
them not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent public distribution of them shall not require
registration under the Securities Act; (iii) such securities shall have ceased
to be outstanding; or (iv) the Registrable Securities are saleable under Rule
144 without volume limitations or time restrictions.
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“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act for a public offering and sale
of Common Stock (other than a registration statement on Form S-4 or Form S-8, or
their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
entity).
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s market-making
activities.
2.
REGISTRATION RIGHTS.
2.1 Demand
Registration.
2.1.1.
Request for
Registration. At any time and from time to time on or after the date of
this Agreement, the holders of a majority-in-interest of the Registrable
Securities, held by the Purchasers or the transferees of the Purchasers, may
make a written demand for registration under the Securities Act of all or part
of their Registrable Securities (a “ Demand
Registration”). Any demand for a Demand Registration shall specify the
number and type of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand within ten (10) days from the receipt of
the Demand Registration, and each holder of Registrable Securities who wishes to
include all or a portion of such holder’s Registrable Securities in the Demand
Registration (each such holder including shares of Registrable Securities in
such registration, a “Demanding Holder”)
shall so notify the Company within fifteen (15) days after the receipt by the
holder of the notice from the Company. Upon any such request, the Demanding
Holders shall be entitled to have their Registrable Securities included in the
Demand Registration, subject to Section 2.1.4 and the provisos set forth in
Section 3.1.1. The Company shall not be obligated to effect more than an
aggregate of four (4) Demand Registrations under this Section 2.1.1 in respect
of Registrable Securities.
2.1.2.
Effective
Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such
Demand Registration has been declared effective and the Company has complied
with all of its obligations under this Agreement or otherwise with respect
thereto; provided, however, if, after
such Registration Statement has been declared effective, the offering of
Registrable Securities pursuant to a Demand Registration is interfered with by
any stop order or injunction of the Commission or any other governmental agency
or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until (i) such
stop order or injunction is removed, rescinded or otherwise terminated, and (ii)
a majority-in-interest of the Demanding Holders thereafter elect to continue the
offering; provided, further, the Company
shall not be obligated to file a second Registration Statement until a
Registration Statement that has been filed is counted as a Demand Registration
or is terminated.
2.1.3.
Underwritten
Offering. If a majority-in-interest of the Demanding Holders so elect and
such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten offering. In such
event, the right of any holder to include its Registrable Securities in such
registration shall be conditioned upon such holder’s participation in such
underwriting and the inclusion of such holder’s
Registrable Securities in the underwriting to the extent provided herein. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand
Registration.
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2.1.4.
Reduction of
Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the
Demanding Holders in writing that the dollar amount or number of shares of
Registrable Securities which the Demanding Holders desire to sell, taken
together with all other shares of Common Stock or other securities which the
Company desires to sell and the shares of Common Stock, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights held by other shareholders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of shares that can be
sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such
offering (such maximum dollar amount or maximum number of shares, as applicable,
the “Maximum Number of
Shares”), then the Company shall include in such registration: (i) first,
the Registrable Securities as to which Demand Registration has been requested by
the Demanding Holders ( pro
rata in accordance with the number of shares of Registrable
Securities which such Demanding Holders have requested be included in such
registration, regardless of the number of shares of Registrable Securities held
by each Demanding Holder) that can be sold without exceeding the Maximum Number
of Shares; (ii) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (i), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clauses (i) and (ii), the
shares of Common Stock for the account of other persons that the Company is
obligated to register pursuant to written contractual arrangements with such
persons and that can be sold without exceeding the Maximum Number of Shares; and
(iv) fourth, to the extent that the Maximum Number of Shares have not been
reached under the foregoing clauses (i), (ii), and (iii), the shares of Common
Stock that other shareholders desire to sell that can be sold without exceeding
the Maximum Number of Shares.
2.1.5.
Withdrawal. If
a majority-in-interest of the Demanding Holders disapprove of the terms of any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. In such event, the Company need not
seek effectiveness of such Registration Statement for the benefit of other
Purchasers. If the majority-in-interest of the Demanding Holders withdraws from
a proposed offering relating to a Demand Registration, then such registration
shall not count as a Demand Registration.
2.2 Piggy-Back
Registration.
2.2.1.
Piggy-Back
Rights. If at any time on or after the date of this Agreement, the
Company proposes to file a Registration Statement under the Securities Act with
respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the
Company for its own account or for stockholders of the Company for their account
(or by the Company and by stockholders of the Company including, without
limitation, pursuant to Section 2.1), other than a Registration Statement (i)
filed in connection with any employee stock option or other benefit plan, (ii)
for an exchange offer or offering of securities solely to the Company’s existing
shareholders, (iii) for an offering of debt that is convertible into equity
securities of the Company or (iv) for a dividend reinvestment plan, then the
Company shall (x) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than thirty
(30) days before the anticipated filing date, which notice shall describe the
amount and type of securities to be included in such offering, the intended
method(s) of distribution, and the name of the proposed managing
Underwriter or Underwriters, if any, of the offering, and (y) offer to the
holders of Registrable Securities in such notice the opportunity to register the
sale of such number of shares of Registrable Securities
as such holders may request in writing within twenty (20) days following receipt
of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use its best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof. All holders of Registrable Securities proposing to distribute their
securities through a Piggy-Back Registration that involves an Underwriter
or Underwriters shall enter into an underwriting agreement in customary form
with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
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2.2.2.
Reduction of
Offering. If the managing Underwriter or Underwriters for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the
holders of Registrable Securities in writing that the dollar amount or number of
shares of Common Stock which the Company desires to sell, taken together with
shares of Common Stock, if any, as to which registration has been demanded
pursuant to written contractual arrangements with persons other than the holders
of Registrable Securities hereunder, the Registrable Securities as to which
registration has been requested under this Section 2.2, and the shares of Common
Stock, if any, as to which registration has been requested pursuant to the
written contractual piggy-back registration rights of other shareholders of the
Company, exceeds the Maximum Number of Shares, then the Company shall include in
any such registration:
(i) If
the registration is undertaken for the Company’s account: (A) first, the shares
of Common Stock or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities, if any, including
the Registrable Securities, as to which registration has been requested pursuant
to the applicable written contractual piggy-back registration rights of such
security holders ( pro
rata in accordance with the number of shares of Common Stock
which each such person has actually requested to be included in such
registration, regardless of the number of shares of Common Stock with respect to
which such persons have the right to request such inclusion) that can be sold
without exceeding the Maximum Number of Shares; and (C) third, to the extent
that the Maximum Number of shares has not been reached under the foregoing
clauses (A) and (B), the shares of Common Stock or other securities for the
account of other persons that the Company is obligated to register pursuant to
written contractual piggy-back registration rights with such persons (pro rata
in accordance with the number of shares of Common Stock which each such person
has actually requested to be included in such registration, regardless of the
number of shares of Common Stock with respect to which such persons have the
right to request such inclusion) that can be sold without exceeding the Maximum
Number of Shares; and
(ii) If
the registration is a “demand” registration undertaken at the demand of persons
other than the holders of Registrable Securities or pursuant to contractual
arrangements with such persons, (A) first, the shares of Common Stock for the
account of the demanding persons that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common
Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (C) third, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the Registrable Securities as to which registration has been
requested under this Section 2.2 ( pro
rata in accordance with the number of shares of Registrable
Securities held by each such holder); and (D) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (A),
(B) and (C), the shares of Common Stock or other securities for the account of
other persons that the Company is obligated to register, if any, as to which
registration has been requested pursuant to written contractual arrangements
with such persons that can be sold without exceeding the Maximum Number of
Shares.
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2.2.3.
Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a demand
pursuant to written contractual obligations) may also elect to withdraw a
Registration Statement at any time prior to the effectiveness of the
Registration Statement.
2.2.4.
Registrations
on Form
S-3. The holders of Registrable Securities may at any time and from time
to time, request in writing that the Company register the resale of any or all
of such Registrable Securities on Form S-3 or any similar short-form
registration which may be available at such time (“Form S-3”); provided, however, that the
Company shall not be obligated to effect such request through an underwritten
offering. Upon receipt of such written request, the Company will promptly give
written notice of the proposed registration to all other holders of Registrable
Securities, and, as soon as practicable thereafter, effect the registration of
all or such portion of such holder’s or holders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other holder or holders joining in such request as are
specified in a written request given within fifteen (15) days after receipt of
such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration pursuant to this
Section 2.2.4 if Form S-3 is not available for such offering. Registrations
effected pursuant to this Section 2.2 shall not be counted as Demand
Registrations effected pursuant to Section 2.1.
2.3 No Net Cash Settlement
Value. In connection with the exercise of the warrants issued in
connection with the Warrant Consideration, the Company will not be obligated to
deliver securities pursuant to a Registration Statement, and there will be no
contractual penalties for failure to deliver securities pursuant to a
Registration Statement, if a Registration Statement is not effective at the time
of exercise of such warrants. The Company may satisfy its obligation under such
warrants, however, by delivering unregistered shares of Common Stock to the
holder or holder of such warrants. In no event will the Company be required to
net cash settle the exercise of such a warrant.
2.4 Limitations on Subsequent
Registration Rights. From and after the date of this Agreement, the
Company shall not, without the prior written consent of the Purchasers or other
holders of a majority of the Registrable Securities then outstanding, enter into
any agreement with any holder or prospective holder of any securities of the
Company that allow such holder or prospective holder (a) to include such
securities in any registration unless, under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the number of the Registrable Securities that are included, or (b) allow
such holder or prospective holder to initiate a demand for registration of any
securities of the Company held by such holder or prospective
holder.
3.
REGISTRATION PROCEDURES.
3.1 Filings; Information.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2, the Company shall use its best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method(s) of distribution thereof as expeditiously as
practicable, and in connection with any such request:
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3.1.1. Filing Registration
Statement. The Company shall, as expeditiously as possible (and in any
event within sixty (60) days after the date notice of a Demand Registration is
given by Demanding Holders), prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the
sale of all Registrable Securities to be registered thereunder in accordance
with the intended method(s) of distribution thereof, and shall use its best
efforts to cause such Registration Statement to become and remain effective for
the period required by Section 3.1.3; provided, however, that the
Company shall have the right to defer any Demand Registration for up to thirty
(30) days, and any Piggy-Back Registration for such period as may be applicable
to deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the Demanding Holders a
certificate signed by the Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company (in the
exercise of its fiduciary duties to the Company and its stockholders), it would
be materially detrimental to the Company and its stockholders for such
Registration Statement to be effected at such time, because such action would
(a) materially interfere with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company, (b) require
premature disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential, or (c) render the Company
unable to comply with requirements under the Securities Act or the Exchange Act,
then the Company shall have the right to defer taking action with respect
to such filing; provided further,
however, that the Company shall not have the right to exercise the right
set forth in the immediately preceding proviso more than once in any 365-day
period in respect of a Demand Registration hereunder; and provided
further that the Company shall not register any securities for
its own account or that of any other stockholder during such thirty (30) day
period other than (i) a registration relating to the sale of securities to
employees of the Company or a subsidiary pursuant to a stock option, stock
purchase, or similar plan, (ii) a registration relating to a Rule 145
transaction, (ii i) a registration on any form that does not include
substantially the same information as would be required to be included in
a registration statement covering the sale of the Registrable Securities,
or (iv) a registration in which the only Common Stock being registered is Common
Stock issuable upon conversion of debt securities that are also being
registered.
3.1.2.
Copies. The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3.
Amendments and
Supplements. The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act until all Registrable Securities and other
securities covered by such Registration Statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred
eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been
withdrawn.
3.1.4.
Notification.
After the filing of a Registration Statement, the Company shall promptly, and in
no event more than two (2) business days after such filing, notify the holders
of Registrable Securities included in such Registration Statement of such
filing, and shall further notify such holders promptly and confirm such advice
in writing in all events within two (2) business days of the occurrence of any
of the following: (i) when such Registration Statement becomes effective; (ii)
when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any
stop order (and the Company shall take all actions required to prevent the entry
of such stop order or to remove it if entered); and (iv) any request by the
Commission for any amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the securities
covered by such Registration Statement, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing a Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company shall
furnish to the holders of Registrable Securities included in such
Registration Statement and to the legal counsel for any such holders, copies of
all such documents proposed to be filed sufficiently in advance of filing to
provide such holders and legal counsel with a reasonable
opportunity to review such documents and comment thereon, and the Company shall
not file any Registration Statement or prospectus or amendment or supplement
thereto, including documents incorporated by reference, to which such holders or
their legal counsel shall object.
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3.1.5.
State Securities Laws
Compliance. The Company shall use its best efforts to (i) register or
qualify the Registrable Securities covered by the Registration Statement under
such securities or “blue sky” laws of such jurisdictions in the United States as
the holders of Registrable Securities included in such Registration Statement
(in light of their intended plan of distribution) may request and (ii) take such
action necessary to cause such Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3.1.5 or subject itself to taxation in any such
jurisdiction.
3.1.6.
Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations, warranties
and covenants of the Company in any underwriting agreement which are made to or
for the benefit of any Underwriters, to the extent applicable, shall also be
made to and for the benefit of the holders of Registrable Securities included in
such registration statement. No holder of Registrable Securities included in
such registration statement shall be required to make any representations or
warranties in the underwriting agreement except, if applicable, with respect to
such holder’s organization, good standing, authority, title to
Registrable Securities, lack of conflict of such sale with such holder’s
material agreements and organizational documents, and with respect to written
information relating to such holder that such holder has furnished in writing
expressly for inclusion in such Registration Statement. Holders of Registrable
Securities shall agree to such covenants and indemnification and contribution
obligations for selling stockholders as are customarily contained in agreements
of that type. Further, such holders shall cooperate fully in the
preparation of the registration statement and other documents relating to any
offering in which they include securities pursuant to Section 2 hereof. Each
holder shall also furnish to the Company such information regarding itself, the
Registrable Securities held by such holder and the intended method of
disposition of such securities as shall be reasonably required to effect the
registration of the Registrable Securities.
3.1.7.
Cooperation.
The principal executive officer of the Company, the principal financial officer
of the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.8.
Records. The
Company shall make available for inspection by the holders of Registrable
Securities included in such Registration Statement, any Underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any holder of Registrable
Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due
diligence responsibility, and cause the Company’s officers, directors and
employees to supply all information requested by any of them in connection with
such Registration Statement.
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3.1.9.
Opinions and Comfort
Letters. The Company shall furnish to each holder of Registrable
Securities included in any Registration Statement a signed counterpart,
addressed to such holder, of (i) any opinion of counsel to the Company delivered
to any Underwriter and (ii) any comfort letter from the Company’s independent
public accountants delivered to any Underwriter. In the event no legal
opinion
is delivered to any Underwriter, the Company shall furnish to each holder of
Registrable Securities included in such Registration Statement, at any time that
such holder elects to use a prospectus, an opinion of counsel to the Company to
the effect that the Registration Statement containing such prospectus has been
declared effective and that no stop order is in effect.
3.1.10.
Earnings
Statement. The Company shall comply with all applicable rules and
regulations of the Commission and the Securities Act, and make available to its
shareholders, as soon as practicable, an earnings statement covering a period of
twelve (12) months, beginning within three (3) months after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11.
Listing. The
Company shall use its best efforts to cause all Registrable Securities included
in any registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then
listed or designated or, if no such similar securities are then listed or
designated, in a manner satisfactory to the holders of a majority of the
Registrable Securities included in such registration.
3.2 Obligation to Suspend
Distribution. Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1.4(iv), or, in the
case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon
any suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company’s Board of Directors, of the ability of all
“insiders” covered by such program to transact in the Company’s securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of “insiders” to transact in the
Company’s securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3 Registration
Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back
Registration pursuant to Section 2.2, and any registration on Form S-3 effected
pursuant to Section 2.3, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective or whether any or all holders of Registrable
Securities withdraw from any Registration Statement, including, without
limitation: (i) all registration and filing fees; (ii) fees and expenses of
compliance with securities or “blue sky” laws (including fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees); (v) the fees and expenses incurred in connection with the listing of
the Registrable Securities as required by Section 3.1.11; (vi) Financial
Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for
the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated
with the delivery of any opinions or comfort letters requested pursuant to
Section 3.1.9); (viii) the fees and expenses of any special experts retained by
the Company in connection with such registration and (ix) the fees and expenses
of one legal counsel selected by the holders of a majority-in-interest of the
Registrable Securities included in such registration. The Company shall
have no obligation to pay any underwriting discounts or selling commissions
attributable to the Registrable Securities being sold by the holders thereof,
which underwriting discounts or selling commissions shall be borne by such
holders. Additionally, in an underwritten offering, all selling stockholders and
the Company shall bear the expenses of the underwriter pro rata in proportion to
the respective amount of shares each is selling in such offering.
8
3.4 Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of
any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
3.5 Holder Obligations.
No holder of Registrable Securities may participate in any underwritten offering
pursuant to this Section 3 unless such holder (i) agrees to sell only such
holder’s Registrable Securities on the basis reasonably provided in any
underwriting agreement, and (ii) completes, executes and delivers any and all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required by or under the
terms of any underwriting agreement or as reasonably requested by the
Company.
4.
INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless Purchasers and
each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and
agents, and each Person, if any, who controls a Purchaser and each other holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) of Registrable Securities (each, an “Purchaser Indemnified
Party”), from and against any expenses, losses, judgments, claims,
damages or liabilities, whether joint or several, arising out of or based upon
any untrue statement (or allegedly untrue statement) of a material fact
contained in any Registration Statement under which the sale of such Registrable
Securities was registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained in the Registration Statement,
or any amendment or supplement to such Registration Statement, or arising
out of or based upon any omission (or alleged omission) to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law, or any rule or
regulation promulgated under state securities laws. The Company shall promptly
reimburse the Purchaser Indemnified Party for any legal and any other expenses
reasonably incurred by such Purchaser Indemnified Party in connection with
investigating and defending any such expense, loss, judgment, claim, damage,
liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue
statement or allegedly untrue statement or omission or alleged omission made in
such Registration Statement, preliminary prospectus, final prospectus, or
summary prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall indemnify any
Underwriter of the Registrable Securities, their officers, employees,
affiliates, directors, partners, members and agents and each person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2 Indemnification by Holders
of Registrable Securities. Each
selling holder of Registrable Securities will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify
and hold harmless the Company, each of its directors and officers and each
Underwriter (if any), and each other Person, if any, who controls another
selling holder or such Underwriter or the Company within the meaning of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
judgments, damages or liabilities, severally and not jointly, insofar as such
losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or such
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder’s indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any
net
proceeds actually received by such selling holder in connection with the sale of
the Registrable Securities by such selling holder pursuant to the Registration
Statement containing such untrue statement.
9
4.3 Conduct of Indemnification
Proceedings. Promptly after receipt by any person of any notice of any
loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”)
shall, if a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the “ Indemnifying Party”)
in writing of the loss, claim, judgment, damage, liability or action; provided,
however, that the failure by the Indemnified Party to notify the Indemnifying
Party shall not relieve the Indemnifying Party from any liability which the
Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such
failure. If the Indemnified Party is seeking indemnification with respect to any
claim or action brought against the Indemnified Party, then the Indemnifying
Party shall be entitled to participate in such claim or action, and, to the
extent that it wishes, jointly with all other Indemnifying Parties, to assume
control of the defense thereof with counsel satisfactory to the Indemnified
Party. After notice from the Indemnifying Party to the Indemnified Party of
its election to assume control of the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal or
other expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that in any action in which both the Indemnified Party and the
Indemnifying Party are named as defendants, the Indemnified Party shall have the
right to employ separate counsel (but no more than one such separate counsel) to
represent the Indemnified Party and its controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, with the fees
and expenses of such counsel to be paid by such Indemnifying Party if, based
upon the opinion of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes an unconditional release of such Indemnified Party from all
liability arising out of such claim or proceeding.
4.4 Contribution.
4.4.1. If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable considerations. The relative
fault of any Indemnified Party and any Indemnifying Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
10
4.4.2.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding Section 4.4.1. The amount paid or payable by an
Indemnified Party as a result of any loss, claim, damage, liability or action
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 4.4, no holder
of Registrable Securities shall be required to contribute any amount in
excess of the dollar amount of the net proceeds (after payment of any
underwriting fees, discounts, commissions or taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such
contribution
obligation. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
5.
REPORTS UNDER SECURITIES ACT AND EXCHANGE ACT. The Company covenants that it
shall file any reports required to be filed by it under the Securities Act and
the Exchange Act and shall take such further action as the holders of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rules may be amended from
time to time, or any similar Rule or regulation hereafter adopted by the
Commission. Without limiting the foregoing, the Company shall do each of the
following:
(a) make
and keep available adequate current public information, as those terms are
understood and defined in Rule 144, at all times after the effective date of the
Registration Statement is filed by the Company;
(b) use
commercially reasonable efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after the Company has become subject to such
reporting requirements); and
(c) furnish
to any Purchaser or holder of Registrable Securities, so long as the Purchaser
or such holder owns any Registrable Securities, forthwith upon request such
information as may be reasonably requested and not otherwise publicly available
in availing any Purchaser or such holder of any rule or regulation of the
Commission that permits the selling of any such securities without registration
(at any time after the Company has become subject to the reporting requirements
under the Exchange Act) or pursuant to Form S-3 (at any time after the Company
so qualifies to use such form).
6.
MISCELLANEOUS.
6.1 Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and obligations of
the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders
of Registrable Securities hereunder may be freely assigned or delegated by such
holder of Registrable Securities in conjunction with and to the extent of any
transfer of Registrable Securities by any such holder. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of
each of the parties and their respective successors and the permitted assigns of
the Purchasers or holders of Registrable Securities or of any assignee of the
Purchaser or holder of Registrable Securities. This Agreement is not intended to
confer any rights or benefits on any Persons that are not party hereto other
than as expressly set forth in Article 4 and this Section 6.1.
6.2 Notices. All notices,
demands, requests, consents, approvals or other communications (collectively,
“Notices”) required or permitted to be given hereunder or which are given with
respect to this Agreement shall be in writing and shall be personally served,
delivered by reputable air courier service with charges prepaid, or transmitted
by hand delivery, telegram, telex or facsimile, addressed as set forth below, or
to such other address as such party shall have specified most recently by
written notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile; provided, that if such service or transmission is not on a business
day or is after normal business hours, then such notice shall be deemed given on
the next business day. Notice otherwise sent as provided herein shall be deemed
given on the next business day following timely delivery of such notice to a
reputable air courier service with an order for next-day delivery.
11
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To
the Company:
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Dlorah,
Inc.
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0000
X. Xxxxxxx 00, Xxxxx 000
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Xxxxx
Xxxx, XX 00000
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Attention:
Xxx Xxxxxxxxxx
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Facsimile:
(000) 000-0000
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with
a copy to:
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Camden
Learning, LLC
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000
Xxxx Xxxxx Xxxxxx
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Xxxxx
0000
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Xxxxxxxxx,
XX 00000
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Attn:
Xxxxx X. Xxxxxxx
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To
the Purchasers, c/o Dlorah, Inc. to:
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0000
X. Xxxxxxx 00, Xxxxx 000
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Xxxxx
Xxxx, XX 00000
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Attention:
Xxx Xxxxxxxxxx
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Facsimile:
(000) 000-0000
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with
a copy to:
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Xxxx,
Plant, Xxxxx, Xxxxx & Xxxxxxx, P.A.
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500
IDS Center
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00
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxxxx,
XX 00000
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Attn:
Xxxx X. Xxxxxxxxxx, Esq.
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Facsimile:
(000) 000-0000
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6.3 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as
similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
6.4 Counterparts; Facsimile
Signatures. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument. Facsimile signatures shall be deemed to
be original signatures for all purposes of this Agreement.
6.5 Entire Agreement.
This Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.6 Modifications and
Amendments. No amendment, modification or termination of this Agreement
shall be binding upon any party unless executed in writing by such
party.
6.7 Titles and Headings. Titles and
headings of sections of this Agreement are for convenience only and shall not
affect the construction of any provision of this Agreement.
6.8 Amendments and
Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance, and either retroactively or prospectively) only with the written
consent of the Company and the holders of a majority of the Registrable
Securities then outstanding; provided, however, that any provision hereof may be
waived by any waiving party on such party’s own behalf, without the consent of
any other party. Notwithstanding the foregoing, this Agreement may not be
amended or terminated and the observance of any term hereof may not be waived
with respect to any Purchaser or holder of Registrable Securities without the
written consent of such Purchaser or holder, unless such amendment, termination,
or waiver applies to all Purchasers or holders of Registrable Securities in the
same fashion. The Company shall give prompt notice of any amendment or
termination hereof or waiver hereunder to any party hereto that did not consent
in writing to such amendment, termination, or waiver. Any amendment,
termination, or waiver effected in accordance with this Section 6. 8 shall be
binding on all parties hereto, regardless of whether any such party has
consented thereto. No waivers of or exceptions to any term, condition, or
provision of this Agreement, in any one or more instances, shall be deemed to be
or construed as a further or continuing waiver of any such term, condition, or
provision.
12
6.9 Remedies Cumulative.
In the event that the Company fails to observe or perform any covenant or
agreement to be observed or performed under this Agreement, the Purchaser or any
other holder of Registrable Securities may proceed to protect and enforce its
rights by suit in equity or action at law, whether for
specific performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in aid of the exercise of any
power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under this
Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.10
Governing Law.
This Agreement shall be governed by, construed and enforced in accordance with
the laws of the State of Delaware without regard to the conflict of laws
principles thereof. All actions, proceedings or claims arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court located in New Castle County, Delaware. The parties
hereby (a) submit to the exclusive jurisdiction of any Delaware state or federal
court for the purpose of any actions, proceedings or claims arising out of
or relating to this Agreement brought by any party, and (b) irrevocably waive,
and agree not to assert by way of motion, defense or otherwise, in any such
action, proceeding or claim, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that the action, proceeding or claim is brought in
an inconvenient forum, that the venue of the action, proceeding or claim is
improper, or that this Agreement or the transactions contemplated hereby may not
be enforced in or by any of the above-named courts. Each of the parties agree
that a final judgment in any action or proceeding with respect to which all
appeals have been taken or waived, shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgment or in any other manner provided
by law. Each of parties irrevocably consents to the service of the summons and
complaint and any other process in any other action or proceeding relating
to the transactions contemplated by this Agreement, on behalf of itself or its
property, by personal delivery of copies of such process to such party. Nothing
in this Section 6.10 shall affect the right of any party to serve legal process
in any other manner permitted by law.
6.11
Waiver of Trial by
Jury. Each party hereby irrevocably and unconditionally waives the right
to a trial by jury in any action, suit, counterclaim or other proceeding
(whether based on contract, tort or otherwise) arising out of, connected with or
relating to this Agreement, the transactions contemplated hereby, or the actions
of the Purchaser in the negotiation, administration, performance or enforcement
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]
13
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to
be executed and delivered by their duly authorized representatives as of the
date first written above.
|
CAMDEN
LEARNING CORPORATION
|
|||
|
By:
|
/s/ Xxxxx X. Xxxxxxx | ||
| Name: Xxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer and President | |||
|
PURCHASERS:
|
|||
| H. & X. XXXXXXXXXX LIMITED PARTNERSHIP | |||
| By: | /s/ Xxxxxx Xxxxxxxxxx | ||
| Xxxxxx Xxxxxxxxxx | |||
| Its: General Partner | |||
| XXXXXX X. XXXXXXXXXX LIVING TRUST | |||
| By: | /s/ Xxxxxx Xxxxxxxxxx | ||
| Xxxxxx Xxxxxxxxxx | |||
| Its: Trustee | |||
14
