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EXHIBIT 10.27
FORM OF
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into on _________,
2001 by and among Xxxxxxx X. Xxxxxxxxx, The Xxxxxxxxx 1980 Revocable Trust,
HAMCO Capital Corporation and XX Xxxxxxxxx+Co, LLC (collectively, the "Xxxxxxxxx
Investors"), and Beacon Education Management, Inc., a Delaware corporation (the
"Company").
RECITALS
WHEREAS, the Xxxxxxxxx Investors beneficially own, on an as-converted
basis, approximately 40.5% of the Company's issued and outstanding common stock,
$.01 par value per share (the "Common Stock");
WHEREAS, the Company's board of directors have determined that it is in
the best interests of the Company and its stockholders to undertake an
underwritten initial public offering of the Company's Common Stock pursuant to a
registration statement on Form S-1 filed with the Securities and Exchange
Commission (the "Initial Public Offering"), and in connection therewith, to
enter into this Agreement;
WHEREAS, the Xxxxxxxxx Investors will beneficially own, on an
as-converted basis, approximately 28.0% of the Company's Common Stock after the
Initial Public Offering;
WHEREAS, the Company has engaged XX Xxxxxxxxx+Co, LLC to act as lead
underwriter of the Initial Public Offering ("Lead Underwriter") and to serve as
the market-maker for the Company after the Initial Public Offering; and
WHEREAS, for good and valuable consideration, and in order to induce
the Company and the Lead Underwriter and the other underwriters to undertake the
Initial Public Offering, the Xxxxxxxxx Investors have entered into this
Agreement.
NOW THEREFORE, the parties hereby agree as follows:
AGREEMENT
1. Term. This Agreement shall commence as of the date of the first sale
of securities in the Initial Public Offering and continue until the date when
the Xxxxxxxxx Investors beneficially own, in the aggregate, less than ten
percent (10.0%) of the outstanding Common Stock of the Company.
2. Representations of the Company. The Company hereby represents and
warrants to the Xxxxxxxxx Investors that (i) the Company has the full legal
right, power and authority to enter into and perform this Agreement, (ii) the
execution and delivery of this Agreement by the Company, and the consummation by
it of the transaction contemplated herein, have been duly authorized by the
Company, and (iii) this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms,
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except to the extent that any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws or general equitable principles may affect the
enforceability thereof.
3. Representations of the Xxxxxxxxx Investors. The Xxxxxxxxx Investors
hereby represent and warrant to the Company that (i) the Xxxxxxxxx Investors
have the full legal right, power and authority to enter into and perform this
Agreement, (ii) the execution and delivery of this Agreement by the Xxxxxxxxx
Investors, and the consummation by them of the transaction contemplated herein,
has been duly authorized by the Xxxxxxxxx Investors, (iii) this Agreement
constitutes the legal, valid and binding obligation of the Xxxxxxxxx Investors,
enforceable against the Xxxxxxxxx Investors in accordance with its terms, except
to the extent that any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws or general equitable principles may affect the
enforceability thereof, and (iv) other than that Shareholder Rights Agreement
dated February 17, 2000 by and among the Xxxxxxxxx 1980 Revocable Trust, Xxxxxxx
X. XxXxxxxx, Xx., Xxxx X. Xxxxx, Xxxxxxx XxXxxxxx, Xxxxxxx Xxxxx, and KinderCare
(the "Shareholder Rights Agreement"), none of the Xxxxxxxxx Investors has any
agreements, arrangements or understandings with any person regarding any
possible stockholder proposal or proxy solicitation with respect to the Company,
or with regard to the acquisition or voting of any securities of the Company.
4. Voting the Xxxxxxxxx Investors' Shares.
(a) The Xxxxxxxxx Investors agree that:
(i) in all matters upon which the Xxxxxxxxx Investors are
entitled to vote as stockholders of the Company, the Xxxxxxxxx Investors shall
vote the Xxxxxxxxx Investors' Shares (as defined below) pro rata in the same
manner and proportion as all votes of the other stockholders of the Company are
cast; and
(ii) in all stockholder actions by written consent in which the
Xxxxxxxxx Investors are entitled to act as stockholders of the Company, the
Xxxxxxxxx Investors agree that they shall grant consents in respect of the
Xxxxxxxxx Investors' Shares pro rata in the same manner and proportion that all
consents of the other stockholders of the Company are granted.
(b) Notwithstanding the foregoing, to the extent votes and consents
authorized by this Agreement conflict with terms of the Shareholder Rights
Agreement, those Xxxxxxxxx Investors' Shares owned by the Xxxxxxxxx 1980
Revocable Trust shall be voted pursuant to the terms of the Shareholder Rights
Agreement.
(c) For purposes of casting votes or granting consents subject to
this Agreement, the Company will determine the number and proportion of all
votes cast and consents granted in all matters subject to shareholder vote or
approval; provided, however, that the calculation of such number of votes cast
or consents granted shall exclude all shares beneficially owned by the Xxxxxxxxx
Investors; provided further, that the determination of the number and proportion
of all votes cast in matters subject to the Shareholder Rights Agreement
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shall not exclude shares owned by the Xxxxxxxxx 1980 Revocable Trust that are
voted pursuant to the Shareholder Rights Agreement.
(d) As used in this Agreement, "Xxxxxxxxx Investors' Shares" shall
mean all shares of Common Stock and other voting securities of the Company held
of record or owned beneficially by the Xxxxxxxxx Investors now or at any time in
the future in excess of 9.9% of the total outstanding shares of Common Stock of
the Company, as converted.
5. Grant of Irrevocable Proxy. The Xxxxxxxxx Investors hereby
irrevocably grant to and appoint the Company's chief executive officer as the
Xxxxxxxxx Investors' proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Xxxxxxxxx Investors,
to vote or to grant a consent or approval in respect of the Xxxxxxxxx Investors'
Shares subject to this agreement and hereby directs that the Xxxxxxxxx
Investors' Shares be present and voted in accordance with the provisions of this
Agreement. The Xxxxxxxxx Investors intend that the proxy granted hereby shall be
coupled with an interest pursuant to this Agreement, and that therefore such
proxy shall be irrevocable for the term of this Agreement.
6. Manner of Voting. The voting of the Xxxxxxxxx Investors' Shares
pursuant to this Agreement may be effected in person, by proxy, by written
consent, or in any other manner permitted by applicable law.
7. Performance by a Subsidiary. The Company and the Xxxxxxxxx Investors
agree that any obligation of a Xxxxxxxxx Investor under this Agreement may be
performed or fulfilled by any wholly-owned subsidiary of that Xxxxxxxxx
Investor.
8. Termination.
(a) In addition to the termination described in Section 1 hereof,
this Agreement shall terminate upon:
(i) written agreement between the parties hereto;
(ii) a liquidation, bankruptcy, dissolution, winding-up or other
administration of the Company; or
(iii) a party acquiring all of the Company's capital stock.
(b) Termination of this Agreement will not extinguish or otherwise
affect any rights of any party against the other party that:
(i) accrued before the time at which termination or release
occurred; or
(ii) otherwise relate to or may arise at any future time from
any breach or non-observance of obligations under this Agreement which arose
before the time at which such termination or release occurred.
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(c) Provisions that are expressed to survive termination will do so.
9. Entire Agreement; Modifications; Amendments; Waivers; Implied
Relationships. This Agreement and the documents referred to herein constitute
the entire agreement between the parties hereto pertaining to the subject matter
hereof, and any and all other written or oral agreements existing among the
parties hereto are expressly canceled. This Agreement or any term hereof may be
modified, amended or waived only with a vote or written consent of the holders
of a majority of the Xxxxxxxxx Investors' Shares or their respective successors
or assigns and the written consent of the Company. Any amendment or waiver
effected in accordance with this provision shall be binding upon each of the
parties hereto, and each of their respective successors and assigns. The parties
agree that unless expressly stated to the contrary, the rights, duties and
obligations of the parties to this Agreement are several and not joint.
10. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then:
(a) such provision shall be excluded from this Agreement;
(b) the balance of this Agreement shall be interpreted as if such
provision were so excluded; and
(c) the balance of this Agreement shall be enforceable in accordance
with its terms.
11. Notices. Any notice required or permitted by this Agreement must be
in writing and shall be deemed received: (i) in the case of personal delivery,
on the date of such delivery, (ii) in the case of delivery via a
nationally-recognized overnight courier, on the next business day after the date
when sent, (iii) in the case of delivery via telegram, telex or facsimile
transmission, one (1) business day after the date of transmission provided that
said transmission is confirmed telephonically on the date of transmission, (iv)
five (5) business days after being deposited in the U.S. mail, or (v) ten (10)
business days if posted to or from a place outside the U.S., as certified or
registered mail, with postage prepaid, addressed to each holder of record at his
address appearing on the books of the Company, or at such other address or
facsimile number as the party may designate by written notice to the other
parties from time to time or, in the case of the Company at the address and
facsimile number set forth below:
To Company: Beacon Education Management, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn.: Xxxx X. Xxxxxx
With a copy to: Xxxx Xxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxx III
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12. Specific Enforcement. It is agreed and understood that monetary
damages would not adequately compensate an injured party for a breach of this
Agreement by any party, that this Agreement shall be specifically enforceable,
and that any breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
13. Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law. Each party
irrevocably and unconditionally submits to the non-exclusive jurisdiction of the
State of Delaware.
14. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties provided that a party obtains the prior written consent
of each of the other parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
17. Expenses. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs, expenses and necessary disbursements in
addition to any other relief to which such party may be entitled.
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as
of the date first above written.
COMPANY:
BEACON EDUCATION MANAGEMENT, INC.
By:
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Name:
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Title:
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INVESTORS:
XXXXXXX X. XXXXXXXXX XX XXXXXXXXX+CO, LLC
By: By:
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Name: Xxxxxxx X. Xxxxxxxxx Name:
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Title:
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THE XXXXXXXXX 1980 REVOCABLE TRUST HAMCO CAPITAL CORPORATION
By: By:
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Name: Name:
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Title: Title:
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[Signature Page to Voting Agreement]
