Exhibit 10.1
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") dated August 5, 2002, is entered
into between SOCRATES ACQUISITION CORPORATION a Delaware corporation ("Buyer"),
and [_____________] ("Shareholder") with respect to (i) the shares of common
stock, par value $0.001 per share (the "Common Stock") of Nobel Learning
Communities, Inc., a Delaware corporation (the "Company"), shares of Series A
Preferred Stock, par value $0.001 per share, of the Company (the "Series A
Preferred Stock"), shares of Series C Preferred Stock, par value $0.001 per
share, of the Company (the "Series C Preferred Stock") and shares of Series D
Preferred Stock, par value $0.001 per share, of the Company (the "Series D
Preferred Stock" and together with the Common Stock, Series A Preferred Stock
and Series C Preferred Stock, the "Company Stock", (ii) all securities
exchangeable, exercisable or convertible into Company Stock and (iii) any
securities issued or exchanged with respect to such shares of Company Stock upon
any recapitalization, reclassification, merger, consolidation, spin-off, partial
or complete liquidation, stock dividend, split-up or combination of the
securities of the Company or any other change in the Company's capital
structure, in each case now owned or hereafter acquired by Shareholder
(collectively, the "Securities").
WHEREAS, Buyer and the Company have entered into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") that provides for the Merger (the "Merger") of Buyer
with and into the Company;
WHEREAS, as of the date hereof, Shareholder beneficially owns and has the
power to dispose of the Securities on Schedule 1 hereto and has the power to
vote the shares of Company Stock set forth thereon;
WHEREAS, Buyer desires to enter into this Agreement in connection with its
efforts to consummate the acquisition of the Company, and in consideration of
Buyer's agreements herein and in the Merger Agreement, Shareholder has agreed to
cooperate with Buyer with respect to the acquisition of the Company by Buyer
upon the terms and subject to the conditions in the Merger Agreement; and
WHEREAS, capitalized terms used in this Agreement and not defined have the
meaning given to such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Covenants.
1.1. Lock-Up. Subject to Section 1.4, Shareholder hereby covenants and
agrees that during the term of this Agreement, Shareholder will not (a) directly
or indirectly, sell, transfer, assign, pledge, hypothecate, tender, encumber or
otherwise dispose of in any manner any of the Securities, or consent or agree to
do any of the foregoing, (b) directly or indirectly, limit its right
to vote in any manner any of the Securities (other than as set forth in this
Agreement), including without limitation, by the grant of any proxy, power of
attorney or other authorization in or with respect to the Securities, by
depositing the Securities into a voting trust, or by entering into a voting
agreement, or consent or agree to do any of the foregoing, or (c) take any
action which would have the effect of preventing or disabling Shareholder from
performing its obligations under this Agreement. Notwithstanding the foregoing,
in connection with any transfer not involving or relating to any Acquisition
Transaction (as defined in the Merger Agreement), Shareholder may transfer any
or all of the Securities to Shareholder's spouse, ancestors, descendants or any
trust for any of their benefits or to a charitable trust; provided, however,
that in any such case, prior to and as a condition to the effectiveness of such
transfer, (x) each person or entity to which any of such Securities or any
interest in any of such Securities is or may be transferred (a) shall have
executed and delivered to Buyer a counterpart to this Agreement pursuant to
which such person or entity shall be bound by all of the terms and provisions of
this Agreement, and (b) shall have agreed in writing with Buyer to hold such
Securities or interest in such Securities subject to all of the terms and
provisions of this Agreement, and (y) this Agreement shall be the legal, valid
and binding agreement of such person, enforceable against such person in
accordance with its terms, subject to the qualification, however, that
enforcement of the rights and remedies created by this Agreement is subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
1.2. No Solicitation. During the term of this Agreement, neither the
Shareholder nor any agent, representative, affiliate or associate (collectively,
"Representatives") of Shareholder shall, directly or indirectly, (a) solicit,
initiate or encourage the submission of any Acquisition Proposal (as defined in
the Merger Agreement) or any other sale, transfer, pledge or other disposition
or conversion of any of the capital stock of the Company or its subsidiaries or
(b) except as permitted under the Merger Agreement and as directed by the Board
of Directors of the Company in Shareholder's capacity as an officer of the
Company, participate in or encourage any discussion or negotiations regarding,
or furnish to any person any non-public information with respect to, enter into
any agreement with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Transaction or any other sale, transfer,
pledge or other disposition or conversion of any of the capital stock of the
Company or its subsidiaries, in any case, from, to or with any person other than
Buyer. Shareholder will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any such other parties
conducted heretofore with respect to any of the foregoing. Shareholder will
notify Buyer immediately if any party contacts Shareholder following the date
hereof (other than Buyer) concerning any Acquisition Transaction or any other
sale, transfer, pledge or other disposition or conversion of any of the capital
stock of the Company or its subsidiaries.
1.3. Certain Events. Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Securities and shall be binding upon
any person or entity to which legal or beneficial ownership of any or all of the
Securities shall pass, whether by operation of law or otherwise, including
without limitation, the Shareholder's successors or assigns. This Agreement and
the obligations hereunder shall attach to any additional shares of Company Stock
or other voting securities of the Company issued to or acquired by Shareholder.
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1.4. Grant of Proxy; Voting Agreement.
(a) The Shareholder has revoked or terminated any proxies, voting
agreements or similar arrangements previously given or entered into with
respect to the Securities and hereby irrevocably appoints Buyer as proxy
for Shareholder, with full power of substitution and resubstitution, to
vote the Securities for Shareholder and in Shareholder's name, place and
stead, at any annual, special or other meeting or action of the
shareholders of the Company, as applicable, or at any adjournment thereof
or pursuant to any consent of the shareholders of the Company, in lieu of a
meeting or otherwise, in the following manner: (i) for the adoption and
approval of the Merger Agreement and the Merger and (ii) in any manner as
Buyer, in its sole discretion, may see fit with respect to any
extraordinary corporate transaction (other than the Merger), such as a
merger, consolidation, business combination, tender or exchange offer,
reorganization, recapitalization, liquidation, sale or transfer or lease of
a material amount of the assets of the Company or any of its subsidiaries
(other than pursuant to the Merger), sale or transfer of a material amount
of capital stock of the Company or any of its subsidiaries (other than
pursuant to the Merger), any change in the Board of Directors of the
Company, any amendment to the Company's Certificate of Incorporation, any
material change to the Company's corporate structure or business, any other
change of control involving the Company or any of its subsidiaries,
including, but not limited to, any Acquisition Transaction, or any other
action that under applicable law requires the approval of the Company's
stockholders which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the
consummation of the Merger or the transactions contemplated by the Merger
Agreement or this Agreement. THE AUTHORITY GRANTED UNDER THE IRREVOCABLE
PROXY SHALL BE IRREVOCABLE UNTIL THE TERMINATION DATE (AS HEREINAFTER
DEFINED) AND DEEMED TO BE COUPLED WITH AN INTEREST. The parties acknowledge
and agree that neither Buyer, nor Buyer's successors, assigns,
subsidiaries, divisions, employees, officers, directors, shareholders,
agents and affiliates shall owe any duty to, whether in law or otherwise,
or incur any liability of any kind whatsoever, including without
limitation, with respect to any and all claims, losses, demands, causes of
action, costs, expenses (including reasonable attorney's fees) and
compensation of any kind or nature whatsoever to the Shareholder in
connection with or as a result of any voting (or refrain from voting) by
Buyer of the Securities subject to the irrevocable proxy hereby granted to
Buyer at any annual, special or other meeting or action or the execution of
any consent of the shareholders of the Company. The parties acknowledge
that, pursuant to the authority hereby granted under the irrevocable proxy,
Buyer may vote the Securities in furtherance of its own interests, and
Buyer is not acting as a fiduciary for the Shareholder.
(b) Notwithstanding the foregoing grant to Buyer of the irrevocable
proxy, if Buyer elects not to exercise its rights to vote the Securities
pursuant to the irrevocable proxy, Shareholder agrees to vote the
Securities during the term of this Agreement (i) in favor of or give its
consent to, as applicable, a proposal to adopt and approve the Merger
Agreement and the Merger as described in clause (i) of Section 1.3(a), or
(ii) in the manner directed by Buyer if the issue on which Shareholder is
requested to vote is a matter described in clause (ii) of Section 1.3(a),
in each case at any annual, special or
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other meeting or action of the shareholders of the Company, in lieu of a
meeting or otherwise.
(c) This irrevocable proxy shall not be terminated by any act of the
Shareholder or by operation of law, whether by the death or incapacity of
the Shareholder or by the occurrence of any other event or events
(including, without limiting the foregoing, the termination of any trust or
estate for which Shareholder is acting as a fiduciary or fiduciaries or the
dissolution or liquidation of any corporation or partnership). If between
the execution hereof and the Termination Date, Shareholder should die or
become incapacitated, or if any trust or estate holding the Securities
should be terminated, or if any corporation or partnership holding the
Securities should be dissolved or liquidated, or if any other such similar
event or events shall occur before the Termination Date, actions taken by
the Buyer hereunder shall be as valid as if such death, incapacity,
termination, dissolution, liquidation or other similar event or events had
not occurred, regardless of whether or not the Buyer has received notice of
such death, incapacity, termination, dissolution, liquidation or other
event.
1.5. Public Announcement. Shareholder shall consult with Buyer before
issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the approval of Buyer,
except as may be required by law.
1.6. Disclosure. Shareholder hereby authorizes Buyer to publish and
disclose in any announcement or disclosure required by the Securities and
Exchange Commission ("the "SEC") or the Nasdaq National Market (the "Nasdaq") or
any national securities exchange, the Proxy Statement and the Schedule 13E-3
(each as defined in the Merger Agreement), (including all documents and
schedules filed with the SEC in connection with either of the foregoing), its
identity and ownership of the Securities and the nature of its commitments,
arrangements and understandings under this Agreement. Buyer hereby authorizes
Shareholder to make such disclosure or filings as may be required by the SEC or
the Nasdaq or any national securities exchange.
1.7. Stop Transfer Instruction. Promptly following the date hereof,
Shareholder and Buyer shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Securities may not be sold,
transferred, pledged, assigned, hypothecated, tendered or otherwise disposed of
in any manner without the prior written consent of Buyer or except in accordance
with the terms and conditions of this Agreement.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Buyer, as of the date hereof and as of the date of
the Merger, that:
2.1. Ownership. Shareholder has good and marketable title to, and is the
sole legal and beneficial owner of the Securities, in each case free and clear
of all liabilities, claims, liens, options, security interests, proxies, voting
trusts, voting agreements, charges, participations and encumbrances of any kind
or character whatsoever. For purposes of this Agreement, "beneficial owner"
shall have the meaning given to such term in Rule 13d-3 under the Securities
Exchange
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Act of 1934, as amended. Shareholder does not beneficially own any capital stock
of the Company or any of its subsidiaries other than the Securities.
2.2. Authorization. Shareholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition with
respect to the Securities with no restrictions on its voting rights or rights of
disposition pertaining thereto. Shareholder has duly executed and delivered this
Agreement and this Agreement is a legal, valid and binding agreement of
Shareholder, enforceable against Shareholder in accordance with its terms,
subject to the qualification however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors' rights and to general equity principles. If
Shareholder is married and the Securities constitute community property, this
Agreement has been duly authorized, executed and delivered by Shareholder's
spouse, and this Agreement is a legal, valid and binding agreement of
Shareholder's spouse, enforceable against Shareholder's spouse in accordance
with its terms, subject to the qualification however, that enforcement of the
rights and remedies created hereby is subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
application related to or affecting creditors' rights and to general equity
principles.
2.3. No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (a) require
the Shareholder to file or register with, or obtain any material permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon the Shareholder,
except for such violations, breaches or defaults which are not reasonably likely
to have a material adverse effect on the Shareholder's ability to satisfy its
obligations under this Agreement. No proceedings are pending which, if adversely
determined, will have a material adverse effect on any ability to vote or
dispose of any of the Securities. The Shareholder has not previously assigned or
sold any of the Securities to any third party.
2.4. Shareholder Has Adequate Information. Shareholder is a sophisticated
seller with respect to the Securities and has adequate information concerning
the business and financial condition of the Company to make an informed decision
regarding the Merger Agreement, the Merger and the execution of this Agreement
and has independently and without reliance upon Buyer and based on such
information as Shareholder has deemed appropriate, made its own analysis and
decision to enter into this Agreement. Shareholder acknowledges that Buyer has
not made and does not make any representation or warranty, whether express or
implied, of any kind or character except as expressly set forth in this
Agreement. Shareholder acknowledges that the agreements contained herein with
respect to the Securities by Shareholder is irrevocable, and that Shareholder
shall have no recourse to the Securities or Buyer, except with respect to
breaches of representations, warranties, covenants and agreements by Buyer
expressly set forth in this Agreement.
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2.5. Buyer's Excluded Information. Shareholder acknowledges and confirms
that (a) Buyer may possess or hereafter come into possession of certain
non-public information concerning the Securities and the Company which is not
known to Shareholder and which may be material to Shareholder's decision to
enter into this Agreement ("Buyer's Excluded Information"), (b) Shareholder has
requested not to receive Buyer's Excluded Information and has determined to sell
the Securities notwithstanding its lack of knowledge of Buyer's Excluded
Information, and (c) Buyer shall have no liability or obligation to Shareholder
in connection with, and Shareholder hereby waives and releases Buyer from, any
claims which Shareholder or its successors and assigns may have against Buyer
(whether pursuant to applicable securities, laws or otherwise) with respect to
the non-disclosure of Buyer's Excluded Information; provided, however, nothing
contained in this Section 2.5 shall limit Shareholder's right to rely upon the
express representations and warranties made by Buyer in this Agreement, or
Shareholder's remedies in respect of breaches of any such representations and
warranties.
2.6. No Setoff. The Shareholder has no liability or obligation related to
or in connection with the Securities other than the obligations to Buyer as set
forth in this Agreement. There are no legal or equitable defenses or
counterclaims that have been or may be asserted by or on behalf of the Company,
as applicable, to reduce the amount of the Securities or affect the validity or
enforceability of the Securities.
2.7. No Amounts Payable to Shareholder. Except as set forth in the Merger
Agreement, there are no amounts due or payable by the Company or any Subsidiary
to the Shareholder or any of its affiliates or associates in connection with the
transactions contemplated by the Merger Agreement or this Agreement or
otherwise.
3. Representations and Warranties of Buver. Buyer hereby represents and
warrants to Shareholder, as of the date hereof that:
3.1. Authorization. Buyer has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Buyer has duly executed and delivered this Agreement and
this Agreement is a legal, valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, subject to the qualification
however, that enforcement of the rights and remedies created hereby is subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
3.2. No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (a) require
Buyer to file or register with, or obtain any material permit, authorization,
consent or approval of, any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic, or any other
entity, or (b) violate, or cause a breach of or default under, any contract,
agreement or understanding, any statute or law, or any judgment, decree, order,
regulation or rule of any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic, or any other
entity or any arbitration award binding upon Buyer, except for such violations,
breaches or defaults which are not reasonably likely to have a material adverse
effect on Buyer's ability to satisfy its obligations under this Agreement.
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4. Survival of Representations and Warranties. The respective representations
and warranties of Shareholder and Buyer contained herein shall not be deemed
waived or otherwise affected by any investigation made by the other party
hereto, and each representation and warranty contained herein shall survive the
closing of the transactions contemplated hereby until the expiration of the
applicable statute of limitations, including extensions thereof.
5. Specific Performance. Shareholder acknowledges that Buyer will be
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Shareholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Buyer upon the breach by Shareholder of
such covenants and agreements, Buyer shall have the right to obtain injunctive
relief to restrain any breach or threatened breach of such covenants or
agreements or otherwise to obtain specific performance of any of such covenants
or agreements.
6. Miscellaneous.
6.1. Term. This Agreement shall terminate upon the earlier of (i) the
consummation of the Merger or (ii) the termination of the Merger Agreement in
accordance with its terms (the "Termination Date"). At the Termination Date,
this Agreement shall thereupon become void and be of no further force and
effect, provided that nothing herein shall relieve any party from liability
hereof for breaches of this Agreement prior to the Termination Date.
6.2. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary: (a) Shareholder makes no agreement or understanding herein in any
capacity other than in Shareholder's capacity as a record holder and beneficial
owner of Securities, and (b) nothing herein shall be construed to limit or
affect any action or inaction by the Shareholder or any Representative of
Shareholder, as applicable, serving on the Company's Board of Directors or as an
officer of the Company, acting in such person's capacity as a director, officer
or fiduciary of the Company.
6.3. Expenses. Each of the parties hereto shall pay its own expenses
incurred in connection with this Agreement. Each of the parties hereto warrants
and covenants to the others that it will bear all claims for brokerage fees
attributable to action taken by it. Notwithstanding the foregoing, if any part
institutes an action with respect to any dispute of the terms of this Agreement,
the prevailing party shall be entitled to reimbursement on demand of all costs
and expenses of such action including reasonable legal fees.
6.4. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
6.5. Entire Agreement. This Agreement contains the entire understanding of
the parties and supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended only
by a written instrument duly executed by the parties hereto.
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6.6. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Time is of the essence with respect to all provisions of this
Agreement.
6.7. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and
permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties; provided, however, that Buyer may freely assign its rights
to another direct or indirect wholly owned subsidiary of Buyer without such
prior written approval but no such assignment shall relieve Buyer of any of its
obligations hereunder. Any purported assignment without such consent shall be
void.
6.8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
6.9. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to Buyer: Socrates Acquisition Corporation
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx
Telecopy: (000) 000-0000
with a copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (617) 95l-7050
(b) If to
Shareholder:
with a copy to: [ ]
[ ]
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[ ]
Attention:
Telecopy:
6.10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without regard to
its principles of conflicts of laws.
6.11. Enforceability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect.
6.12. Further Assurances. From time to time at Buyer's request and without
further consideration, Shareholder shall execute and deliver to Buyer such
documents and take such action as Buyer may reasonably deem to be necessary or
desireable to carry out the provisions hereof.
6.13. Remedies Not Exclusive. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
6.14. Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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[Voting Agreement]
IN WITNESS WHEREOF, Buyer and Shareholder have caused this Agreement to be
duly executed as of the day and year first above written.
SOCRATES ACQUISITION
CORPORATION
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
SHAREHOLDER
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