STOCKHOLDERS AGREEMENT
Exhibit 10.5
THIS STOCKHOLDERS AGREEMENT (this “Agreement”) is made as of [ • ], 2009, by and among
Cambium Holdings, Inc., a Delaware corporation (the “Company”), VSS-Cambium Holdings III,
LLC, a Delaware limited liability company, (the “Stockholder”) and Vowel Representative,
LLC, a Delaware limited liability company (the “Stockholders’ Representative”), solely in
its capacity as the Stockholders’ Representative pursuant to ARTICLE VIII of the Merger Agreement
(as defined below).
RECITALS
WHEREAS, the Company, Voyager Learning Company, VSS-Cambium Holdings II Corp., a Delaware
corporation (“Consonant”), Vowel Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Company (“Vowel Merger Sub”), Consonant Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of the Company (“Consonant Merger Sub”)
and the Stockholders’ Representative, have entered into an Agreement and Plan of Mergers, dated as
of June 20, 2009 (as the same may be amended, supplemented or otherwise modified from time to time,
the “Merger Agreement”), pursuant to which, among other things, immediately prior to the
execution of this Agreement, Vowel Merger Sub merged with and into Vowel (the “Vowel
Merger”), with Vowel surviving the Vowel Merger as a wholly-owned subsidiary of the Company,
and Consonant Merger Sub merged with and into Consonant (the “Consonant Merger”), with
Consonant surviving the Consonant Merger as a wholly-owned subsidiary of the Company;
WHEREAS, pursuant to the terms of the Merger Agreement, the Stockholder, being the former sole
stockholder of Consonant, has received shares of common stock of the Company, $0.001 par value per
share (the “Common Stock”), as well as certain other consideration described in the Merger
Agreement, in consideration of its common stock of Consonant;
WHEREAS, the Stockholder is currently the beneficial owner of [ • ] of shares of Common Stock;
WHEREAS, the Stockholder and the Company believe it to be in the best interests of the
Stockholder and of the Company to insure continuity of harmonious management of the Company and its
subsidiaries, and the good performance thereof, by providing for certain preemptive rights and
subscription rights and by addressing certain matters relating to the governance of the Company;
and
WHEREAS, the Stockholder and the Company hereby agree that this Agreement shall govern certain
matters as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Stockholder do hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1. “Affiliate” has the meaning given to it in Rule 144(a)(1) of the Securities Act
of 1933, as amended.
1.2. “Audit Committee” means the Audit Committee of the Company’s Board of Directors.
1.3. “Audit Committee Independent Director” means a director who is (i) independent as
defined under Rule 5605(a)(2) of the Nasdaq Marketplace Rules; (ii) meets the criteria for
independence set forth under Rule 10A-3(b) of the Exchange Act; (iii) has not participated in the
preparation of the financial statements of the Company or any of its subsidiaries during the past
three years; and (iv) is able to read and understand fundamental financial statements, including a
balance sheet, income statement and cash flow statement.
1.4. “Board” has the meaning assigned thereto in Section 2.1(a).
1.5. “Business Day” means a day, other than a Saturday or Sunday, or other day on
which banks in the State of New York are closed or authorized by law to close.
1.6. “By-laws” means the by-laws of the Company.
1.7. “Capital Stock” means (a) shares of Common Stock and Preferred Stock (whether now
outstanding or hereafter issued in any context), (b) shares of Common Stock issued or issuable upon
conversion of Preferred Stock and (c) shares of Common Stock issued or issuable upon exercise or
conversion, as applicable, of stock options, warrants or other convertible securities of the
Company, in each case now owned or subsequently acquired by any Stockholder, or their respective
successors or permitted transferees or assigns. For purposes of the number of shares of Capital
Stock held by a Stockholder (or any other calculation based thereon), all shares of Preferred Stock
shall be deemed to have been converted into Common Stock at the then-applicable conversion ratio.
1.8. “Common Stock” has the meaning assigned thereto in the recitals to this
Agreement.
1.9. “Company Securities” has the meaning assigned thereto in Section 3.1.
1.10. “Contingent Value Right Agreement” means that certain Contingent Value Right
Agreement, dated as of [ • ], 2009, by and among the Stockholders’ Representative, the Company and
Xxxxx Fargo, N.A., as Rights Agent.
1.11. “DGCL” means the General Corporation Law of the State of Delaware.
1.12. “Effective Time” has the meaning assigned thereto in the Merger Agreement.
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1.13. “Escrow Agreement” means that certain Escrow Agreement, dated as of [ • ], 2009,
by and among Voyager Learning Company, the Stockholders’ Representative, the Company and Xxxxx
Fargo, N.A., as Escrow Agent.
1.14. “Exchange Act” means the Securities Exchange Act of 1934, as amended.
1.15. “Exempt Issuances” has the meaning assigned thereto in Section 3.2(a).
1.16. “Independent Director” means a director who is independent as defined under Rule
5605(a)(2) of the Nasdaq Marketplace Rules.
1.17. “Merger Agreement” has the meaning assigned thereto in the recitals to this
Agreement.
1.18. “New Issuance” has the meaning assigned thereto in Section 3.1.
1.19. “Offer Notice” has the meaning assigned thereto in Section 3.1.
1.20. “Ownership Percentage” means the quotient of (1) the number of votes which may
be cast by a VSS Stockholder as of the date of the Offer Notice based upon the number of shares of
Voting Stock owned by such VSS Stockholder on the date of the Offer Notice divided
by (2) the total number of votes which may be cast by the holders of all outstanding shares
of Voting Stock as of the date of the Offer Notice.
1.21. “Permitted Assignee” has the meaning assigned thereto in Section 3.1.
1.22. “Person” means any individual, corporation, partnership, trust, limited
liability company, association or other entity.
1.23. “Preferred Stock” means shares of the Company’s preferred stock, par value
$0.001 per share, as may be issued from time to time.
1.24. “Purchasing Stockholder” has the meaning assigned thereto in Section
3.2(a).
1.25. “Restated Certificate” means the Amended and Restated Certificate of
Incorporation of the Company.
1.26. “Shares” means and includes any securities of the Company the holders of which
are entitled to vote for members of the Board, including without limitation, all shares of Common
Stock or Preferred Stock, by whatever name called, now owned or subsequently acquired by a
Stockholder, however acquired, whether through stock splits, stock dividends, reclassifications,
recapitalizations, similar events or otherwise.
1.27. “Subscription Notice” has the meaning assigned thereto in Section 4.2.
1.28. “Subscription Period” has the meaning assigned thereto in Section 4.1.
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1.29. “Subscription Price Per Share” has the meaning assigned thereto in Section
4.1.
1.30. “Subscription Shares” has the meaning assigned thereto in Section 4.2.
1.31. Voting Stock” means shares of Common Stock and any Company Securities which vote
on an as-converted basis with the Common Stock.
1.32. “Vowel Class II Designees” has the meaning assigned thereto in Section
2.1(d).
1.33. “Vowel Class III Designees” has the meaning assigned thereto in Section 2.1(d).
1.34. “VSS” means Xxxxxxx Xxxxxx Xxxxxxxxx LLC.
1.35. “VSS Fund(s)” means the Stockholder and/or one or more other funds or entities
owned, controlled or managed by VSS.
1.32. “VSS Stockholder” has the meaning assigned thereto in Section
3.1.
2. Voting Provisions Regarding Board of Directors and Organizational Documents.
2.1. Size and Composition of Board.
(a) The Stockholder agrees to vote, or cause to be voted, all Shares owned by such
Stockholder, or over which such Stockholder has voting control, from time to time and at all times,
in whatever manner as shall be necessary to ensure that the size of the Board of Directors of the
Company (the “Board”) shall, until the third anniversary of the Effective Time (as that
term is defined in the Merger Agreement), be set and remain at nine (9) directors.
(b) Pursuant to the terms of the Restated Certificate, the Company maintains a staggered board
with the classes and other terms set forth in the Restated Certificate and By-laws. Specifically,
among other things, the Restated Certificate provides that the Board shall be divided into three
classes, as nearly equal in number as possible, designated as Class I, Class II and Class III. The
Stockholder hereby acknowledges that the duly elected directors of the Company as of the date
hereof are the persons set forth on Exhibit A attached hereto and that each such person
serves in the class described on Exhibit A.
2.2. Removal and Replacement of Board Members.
(a) The Stockholder agrees that except as required by Law or rule of any national securities
exchange or self regulatory organization (based on advice of legal counsel), and until the earlier
to occur of (the “Expiration Date”): (i) the written consent of the Stockholders’
Representative (which consent may be granted or withheld in its sole and absolute discretion), (ii)
the full distribution by the Escrow Agent (as defined in the Escrow Agreement)
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of all of the CVR Escrow Funds (as defined in the Escrow Agreement) in accordance with the
terms of the Escrow Agreement, (iii) the second anniversary of the Effective Time with respect to
the Vowel Class II Designees listed below or the third anniversary of the Effective Time with
respect to the Vowel Class III Designees listed below or (iv) the VSS Funds collectively ceasing to
beneficially own (as determined in accordance with Rule 13d-3 of the Exchange Act) at least ten
percent (10%) of the issued and outstanding shares of Common Stock, the Stockholder shall not vote,
act by written consent or take any other action to remove or disqualify any of (i) the Vowel Class
II Designees, or (ii) the Vowel Class III Designees, in each case other than for cause as
determined in accordance with Section 141 of the DGCL. The Stockholder agrees to execute any
written consents and take any other actions reasonably required to perform the obligations of this
Agreement. The Expiration Date, as applicable to the Vowel Class II Designees is referred to
herein as the “Class II Expiration Date”; and the Expiration Date, as applicable to the
Vowel Class III Designees is referred to herein as the “Class III Expiration Date”.
(b) “Vowel Class II Designees” shall initially mean the following two (2) individuals:
[ • ] and [ • ]. “Vowel Class III Designees” shall initially mean the following two (2)
individuals: [ • ] and [ • ]. The Vowel Class II Designees and the Vowel Class III Designees are
referred to collectively herein as the “Vowel Designees”. If, at any time prior to the
applicable Expiration Date, any Vowel Designee resigns, is removed for cause as contemplated in
Section 2.2(a), or a vacancy otherwise occurs with respect to the board seat occupied by
such Vowel Designee, then the Stockholder or the Company shall provide prompt written notice to the
Stockholders’ Representative of such vacancy and the Stockholders’ Representative may nominate a
replacement director to serve in the same Class as the departing director, subject to the approval
of the Stockholder (which approval shall not be unreasonably withheld, conditioned or delayed)
(each, a “Vowel Replacement Designee”). The Stockholder shall vote, act by written consent
and take any other action that is necessary or appropriate to cause the election of the Vowel
Replacement Designee to the Board whereupon the Vowel Replacement Designee shall become a Vowel
Class II Designee or a Vowel Class III Designee, as applicable, in accordance with this Agreement.
(c) Notwithstanding the foregoing, at least two (2) of the Vowel Designees (including any
Vowel Replacement Designee) and at least one (1) of the directors nominated by the Stockholder
shall be an Audit Committee Independent Director.
2.3. Amendment of Restated Certificate and Bylaws. The Stockholder agrees that,
until the third anniversary of the Effective Time, except as required by Law or any rule of any
national securities exchange or self regulatory organization (based on advice of legal counsel),
for so long as the VSS Funds collectively beneficially own (as determined in accordance with Rule
13d-3 of the Exchange Act) at least ten percent (10%) of the issued and outstanding shares of
Common Stock, (i) none of the VSS Funds nor the Stockholder shall vote, act by written consent or
take any other action to amend, modify or repeal the Restated Certificate or Bylaws to eliminate
the Class II or the Class III classes, to increase or decrease the size of the Board or in any
other manner that would constitute a breach of this Section 2 and (ii) the VSS Funds and
the Stockholder shall vote or act by written consent to maintain a staggered board with the classes
and other terms set forth in the Restated Certificate and the By-Laws as adopted on the Closing
Date
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2.4. Other Agreements Relating to Board Members.
(a) From time to time the Board may establish one or more committees of the Board consisting
of more than one director. From the date of this Agreement until the Class III Expiration Date, at
least one (1) Vowel Designee that is not an Independent Director shall be appointed by the Board to
any such committee other than the Audit Committee; provided, however, to the extent
such committee is required by applicable Law or any rule of any national securities exchange or
self regulatory organization to be comprised of at least a majority of Independent Directors, then
the Vowel Designee appointed to such committee shall be an Independent Director. From the date of
this Agreement until the Class III Expiration Date, at least (1) Vowel Designee who shall be an
Audit Committee Independent Director shall be appointed by the Board to the Audit Committee.
(b) From the date of this Agreement until the Class III Expiration Date, the Stockholder and
the Company hereby agree that, if and to the extent the Company or any subsidiary enters into an
indemnification or similar agreement with, or purchases insurance for the benefit of, any director
nominated by the Stockholder, then such agreement or insurance shall also be provided to the Vowel
Designees on the same terms and conditions.
3. Preemptive Rights.
3.1. Notice of Proposed Issuance. Except with respect to Exempt Issuances (as defined
in Section 3.3), for so long as the VSS Funds beneficially own (as determined in accordance
with Rule 13d-3 of the Exchange Act) at least twenty-five percent (25%) of the issued and
outstanding shares of Common Stock, in the event that the Company proposes to issue any (i) shares
of Common Stock, (ii) warrants, options or other rights to purchase shares of Common Stock or (iii)
notes, debentures or other securities convertible into or exercisable or exchangeable for shares of
Common Stock (collectively, the “Company Securities”), the Company will deliver to each of
the VSS Funds then owning Common Stock or, if applicable, other Company Securities (a “VSS
Stockholder”) a written notice (the “Offer Notice”) prior to effecting any such
issuance (the “New Issuance”), offering to such VSS Stockholder the right, for a period of
thirty (30) days after receipt of the Offer Notice (the “Election Period”), to purchase
such number of shares of Common Stock so that its Ownership Percentage following such New Issuance
shall be equal to its Ownership Percentage prior to such New Issuance; provided,
however, to the extent the New Issuance consists of Company Securities other than Common
Stock, subject to the approval of the Audit Committee (which notice of approval shall be set forth
in the Offer Notice), any VSS Stockholder shall have the right to purchase such number of Company
Securities so that it shall maintain its same Ownership Percentage following such New Issuance.
The Offer Notice shall describe the Company Securities proposed to be issued by the Company and
specify the number, price and payment terms. Each VSS Stockholder who exercises its rights under
this Section 3.1 shall pay an amount equal to the cash and other consideration with respect
to such Company Securities being issued to it as set forth in the Offer Notice. Each of the VSS
Stockholders shall be entitled to apportion its rights to purchase the Company Securities under
this Section 3 among itself and its Affiliates in such proportions as it deems appropriate
and may assign the rights granted to it under this Section 3 to any of its Affiliates, in
each case prior to the expiration of the Election Period (a “Permitted Assignee”).
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3.2. Right to Purchase Company Securities.
(a) Any of the VSS Stockholders or Permitted Assignees, as the case may be, which desires to
exercise rights under this Section 3 shall accept the Company’s offer as to the full number
of Common Stock or other Company Securities, as the case may be, offered to the applicable VSS
Stockholder in the Offer Notice or any lesser number by written notice thereof (an “Exercise
Notice”) given by the VSS Stockholder or Permitted Assignee, as the case may be, to the Company
prior to the expiration of the Election Period. A delivery of an Exercise Notice (which notice
shall specify the number (or amount) of Common Stock or other Company Securities, as the case may
be, to be purchased by such VSS Stockholder or Permitted Assignee, as the case may be, as permitted
under this Section 3) shall constitute a binding agreement of such VSS Stockholder or
Permitted Assignee, as the case may be, (a “Purchasing Stockholder”), to purchase, at the
price and on the terms specified in the Offer Notice, the number (or amount) of Common Stock or
other Company Securities specified in such Purchasing Stockholder’s Exercise Notice. If at the
termination of the Election Period a VSS Stockholder or Permitted Assignee, as the case may be,
shall not have exercised its rights to purchase Common Stock or other Company Securities, as
applicable, pursuant to this Section 3, such VSS Stockholder or Permitted Assignee, as the
case may be, shall be deemed to have waived any and all of its rights under this Section 3
with respect to that purchase of such Common Stock or other Company Securities, as applicable (such
waiver shall not apply to any subsequently offered Company Securities).
(b) The Company shall have ninety (90) days from the date of the Offer Notice to consummate
the proposed New Issuance at the price and upon substantially the same terms specified in the Offer
Notice. At the consummation of such New Issuance, the Company shall issue in an uncertificated
book-entry form (unless a physical certificate is requested by such Purchasing Stockholder) the
Common Stock or other Company Securities to each Purchasing Stockholder, against payment by such
Purchasing Stockholder of the purchase price for such Common Stock or other Company Securities, as
the case may be, specified in such Purchasing Stockholder’s Exercise Notice. If the Company
proposes another New Issuance after such time period above, it shall again comply with the
procedures set forth in this Section 3.
(c) The value of any non-cash consideration to be received by the Company in any New Issuance
shall be determined by the Board in good faith, and shall be specified in the Offer Notice
delivered in connection with any such New Issuance. If a Purchasing Stockholder elects to exercise
its rights under this Section 3 in connection with any New Issuance in which there is any
such non-cash consideration, then, such Purchasing Stockholder may elect in its Exercise Notice to
tender, in lieu of tendering any such non-cash consideration, an amount in cash equal to the
reasonably determined good faith value of such non-cash consideration.
(d) The Common Stock or other Company Securities, as the case may be, when issued, sold and
delivered to the applicable Purchasing Stockholders in accordance with the terms and for the
consideration set forth in this Section 3, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than applicable state and federal
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securities laws and liens and encumbrances created by any Purchasing Stockholder owning such
Common Stock or other Company Securities, as the case may be. The Company shall use its reasonable
best efforts to cause the Common Stock or other Company Securities, as the case may be, to be
listed on the national securities exchange where the Company’s capital stock is then listed.
3.3. Exempt Issuances. The following shall constitute “Exempt Issuances”
under this Section 3: any issuance in which Company Securities are issued (i) pursuant to
a stock split, stock dividend, capital reorganization, recapitalization, or reclassification of the
Company’s Common Stock or other capital stock, distributable on a pro rata basis to all holders of
the same class of such Common Stock or other capital stock, (ii) to employees, officers, directors
or consultants of the Company pursuant to an equity incentive plan, stock option plan, employee
stock purchase plan, restricted stock plan or other employee benefit plans or programs in effect
from time to time, (iii) in connection with the conversion of any preferred stock or the conversion
or exercise of any options, warrants or other rights to purchase any Company Securities, (iv) in
consideration for the acquisition (by merger, consolidation, reorganization or otherwise) by the
Company or any subsidiary of the Company of the assets, business or equity interests of another
Person approved by a majority of the Board, or (v) to any of the Company’s or its subsidiaries’
lenders or other financing sources in connection with the incurrence, renewal or maintenance of any
indebtedness.
4. Subscription Rights.
4.1. Grant of Subscription Right. Notwithstanding the rights afforded by Section
3 hereof and subject to the terms and conditions specified in this Section 4, at any
time and from time to time, until the twenty-four month anniversary of Effective Time (as defined
in the Merger Agreement) (the “Subscription Period”), the Company hereby grants to the VSS
Funds (collectively) an option to purchase, in the aggregate and at a purchase price per share of
Common Stock equal to ninety percent (90%) of the volume weighted average price measured over the
10-trading day period immediately preceding the issuance (the “Subscription Price Per
Share”), a number of shares of Common Stock up to the lesser of (i) 7,500,000 shares of Common
Stock (subject to appropriate adjustment in the event of any dividend, stock split, combination or
similar recapitalization event) or (ii) such number of shares of Common Stock as the VSS Funds may
purchase from time to time during the Subscription Period for an aggregate purchase price of up to
$20,000,000. Each of the VSS Funds shall be entitled to apportion its subscription rights under
this Section 4.1 among itself and its Permitted Assignees in such proportions as it deems
appropriate and may assign any such rights granted to it to any of its Permitted Assignees.
4.2. Subscription Rights Process. Any of the VSS Funds or Permitted Assignees, as the
case may be, which desires to exercise its rights under this Section 4 shall, from time to
time during the Subscription Period, deliver a written notice to the Company (the “Subscription
Notice”) stating (i) its bona fide intention to purchase shares of Common Stock (the
“Subscription Shares”), and (ii) either the number of Subscription Shares to be purchased
by such VSS Fund or the proposed aggregate purchase price to be paid by such VSS Fund for such
Subscription Shares. The Company shall have sixty (60) days following the receipt of the
Subscription Notice to consummate the issuance of such number of Subscription Shares to the
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applicable VSS Funds or Permitted Assignees, as the case may be, on the terms set forth in the
Subscription Notice. At the consummation the issuance of such Subscription Shares, the Company
shall issue in an uncertificated book-entry form (unless a physical certificate is requested by
such VSS Fund) such Subscription Shares to be purchased by the applicable VSS Fund, against payment
by such VSS Fund of the Subscription Price Per Share for such Subscription Shares. The
Subscription Shares when issued, sold and delivered in accordance with the terms and for the
consideration set forth in this Section 4, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than applicable state and federal
securities laws and liens and encumbrances created by the VSS Fund or Permitted Assignee, as the
case may be, owning such Subscription Shares. The Company shall use its reasonable best efforts to
cause the Subscription Shares to be listed on the national securities exchange where the Company’s
capital stock is then listed.
5. Miscellaneous.
5.1. Covenants of the Company. The Company agrees to use commercially reasonable
efforts, within the requirements of applicable law, to ensure that the rights granted under this
Agreement are effective and that the parties enjoy the benefits of this Agreement.
5.2. Stock Split. All references to numbers of shares of Capital Stock in this
Agreement shall be appropriately adjusted to reflect any stock dividend, split, combination or
other recapitalization affecting the shares of Capital Stock occurring after the date of this
Agreement.
5.3. Binding Effect; Assignability.
(a) The terms and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and permitted assigns of the parties, including without limitation
Permitted Assignees. Nothing in this Agreement, express or implied, is intended to confer upon any
party, other than VSS, the VSS Funds and the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. VSS shall be an express intended third
party beneficiary of this Agreement.
(b) Any successor, permitted assignee or permitted transferee of any Stockholder, including
any Permitted Assignee who purchases securities in accordance with the terms hereof, shall deliver
to the Company, as a condition to any transfer or assignment, a counterpart signature page hereto
pursuant to which such successor, permitted assignee or permitted transferee shall confirm their
agreement to be subject to and bound by all of the provisions set forth in this Agreement that were
applicable to the predecessor or assignor of such successor or permitted assignee.
5.4. Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement will continue in full force and effect and
the application of such provision to other persons or entity or circumstances will be interpreted
so as reasonably to effect the intent of the parties hereto. The parties hereto further agree to
replace
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such void or unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other purposes of such void
or unenforceable provision.
5.5. Governing Law. This Agreement and any controversy arising out of or relating to
this Agreement shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to conflict of law principles that would result in the application of any
law other than the law of the State of Delaware.
5.6. Counterparts. This Agreement may be executed in separate counterparts, but taken
together shall constitute one and the same instrument. Delivery of an executed counterpart by
facsimile or e-mail of a PDF file shall be effective as delivery of an original manually executed
counterpart.
5.7. Descriptive Headings. The descriptive headings used herein are for reference
purposes only and will not affect in any way the meaning or interpretation of this Agreement.
5.8. Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or two (2) business days after being deposited in the
regular mail as certified or registered mail (airmail if sent internationally) with postage
prepaid, if such notice is addressed to the party to be notified at such party’s address or
facsimile number as set forth beneath such party’s signature hereto, or as subsequently modified by
written notice. If notice is given to the Company, a copy shall also be sent to Xxxxxxxxxx Xxxxxxx
PC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.; facsimile:
(000) 000-0000. If notice is given to the Stockholders’ Representative, a copy shall also be sent
to Xxxxxxx Coie LLP, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxx Xxxxxx, Esq.: telephone: (000) 000-0000; facsimile: (000) 000-0000; E-mail:
xxxxxxx@xxxxxxxxxxx.xxx.
5.9. Amendment, Termination or Waiver. Any provision of this Agreement may be
amended, modified or terminated and the observance of any term hereof may be waived (either
generally or in a particular instance and either retroactively or prospectively) only by a written
instrument executed by (a) the Company; (b) the Stockholder; and either (c) (i) the Stockholders’
Representative or (ii) a majority of the Vowel Designees who are serving on Board at such time.
5.10. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior agreements,
representations and understandings (both written and oral) between the parties with respect
thereto. No addition to or modification of any provision of this Agreement shall be binding upon
any party unless made in writing and signed by the party against whom enforcement is sought.
5.11. Delays or Omissions. No delay or omission to exercise any right, power, or
remedy accruing to any party under this Agreement, upon any breach or default of any other party
under this Agreement, shall impair any such right, power, or remedy of such
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nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or
acquiescence to any such breach or default, or to any similar breach or default thereafter
occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement
or by law or otherwise afforded to any party, shall be cumulative and not alternative.
5.12. Further Assurances. Each of party shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all such other agreements,
certificates, assignments, instruments, and documents as the other reasonably may request from time
to time for the purposes of carrying out the intent of this Agreement.
5.13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE AND
COVENANT THAT THEY WILL NOT ASSERT THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENT OR ACTION RELATED
HERETO OR THERETO.
5.14. Specific Performance. In addition to all other remedies available at law and in
equity, the Stockholder or the Stockholders Representative, as the case may be, shall be entitled
to specifically enforce any provision of this Agreement, and to seek and obtain injunctive and
other equitable relief with respect to the enforcement of its rights under this Agreement, in each
case, without the need to post bond or security therefore.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have executed this Stockholders Agreement as of the date first
written above.
| COMPANY: CAMBIUM HOLDINGS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| STOCKHOLDER: VSS-CAMBIUM HOLDINGS III, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| STOCKHOLDERS’ REPRESENTATIVE: VOWEL REPRESENTATIVE, LLC |
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[Signature Page Stockholders Agreement]
EXHIBIT A
BOARD OF DIRECTORS
CLASS I DIRECTORS
CLASS II DIRECTORS
CLASS III DIRECTORS
