STOCK PURCHASE AGREEMENT
EXHIBIT
10.17
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of this 19th day of
November, 2009 by and between Camden Learning Corporation, a Delaware
corporation (“Buyer” or “Camden”) and the signatory on the execution page hereof
and its affiliates (collectively, “Seller”).
WHEREAS,
Camden was organized for the purpose of acquiring, through a merger, capital
stock exchange, asset acquisition or other similar business combination, an
operating business (“Business Combination”); and
WHEREAS,
Camden consummated an initial public offering in November, 2007 (“IPO”) in
connection with which it raised gross proceeds of approximately $53 million, a
significant portion of which was placed in a trust account (the “Trust Account”)
pending the consummation of a Business Combination, or the dissolution and
liquidation of Camden in the event it is unable to consummate a Business
Combination on or prior to November 29, 2009; and
WHEREAS,
Camden has entered into that certain Agreement and Plan of Reorganization as
amended and restated in its entirety on August 11, 2009 and further amended on
October 26th,
2009 by Amendment No. 1 to the Amended and Restated Agreement and Plan of
Reorganization (as amended, the “Merger Agreement”) pursuant to which Dlorah
Subsidiary, Inc., a newly formed, wholly-owned subsidiary of Camden (“Merger
Sub”), will merge with and into Dlorah, Inc., a South Dakota corporation which
owns and operates National American University (Dlorah, Inc., together with its
divisions and subsidiaries, is referred to herein as “Dlorah”), with Dlorah
surviving as a wholly-owned subsidiary of Camden, as a result of which the
stockholders of Dlorah will contribute all of the outstanding capital stock of
Dlorah to the Corporation in exchange for shares of a newly created class of
common stock, common stock purchase warrants and restricted shares of the
Corporation’s currently authorized common stock (the “Acquisition”);
and
WHEREAS,
pursuant to certain provisions in Camden’s Certificate of Incorporation, as
amended (the “Certificate of Incorporation”), a holder of Camden’s shares of
common stock, par value $.0001 per share (the “Common Stock”), issued in
Camden’s initial public offering (“IPO”) may, if it votes against the Business
Combination, demand that Camden redeem such Common Stock into cash (“Redemption
Rights”); and
WHEREAS,
the Acquisition will not be consummated if the holders of 30% or more of the
Common Stock issued in the IPO vote against the Acquisition and request
Redemption Rights; and
WHEREAS,
Buyer has requested Seller sell, and Seller has agreed to sell, the number of
shares of Common Stock set forth on the signature page hereof (the “Shares”);
and
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE
I
Purchase
and Closing
Section
1.01 Purchase. Seller hereby
agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller at the
Closing (as defined below) the Shares at $7.92 per share (the “Purchase Price
Per Share”) for the aggregate purchase price set forth on the signature page
hereto (the “Aggregate Purchase Price”). Prior to the Closing, Buyer hereby
agrees to provide irrevocable instructions to its transfer agent in the form
attached hereto as Exhibit A, to deliver
the Aggregate Purchase Price at the Closing. Buyer’s obligation to purchase the
Shares from Seller shall be conditioned on the consummation of the
Acquisition.
Section
1.02 Closing. The closing of the
purchase and sale of the Shares within two business days of the date that the
Business Combination is consummated (such second business day being the
(“Closing”). At the Closing, Buyer shall pay Seller the Aggregate Purchase Price
by wire transfer from Camden’s Trust Account of immediately available funds to
an account specified by Seller and Seller shall deliver the Shares to Buyer
electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal at
Custodian) System to an account specified by Buyer. For purposes of clarity, and
notwithstanding anything in this Agreement to the contrary, in the event the
closing of the Business Combination does not occur by November 29 2009, this
Agreement shall be null and void, ab initio, and no party hereto shall have any
rights or obligations under this Agreement. It shall be a condition to the
obligation of Buyer on the one hand and Seller on the other hand, to consummate
the transfer of the Shares and payment of the Aggregate Purchase Price
contemplated hereunder that the other party’s representations and warranties are
true and correct at the Closing with the same effect as though made on such
date, and that the other party shall have complied with all of its obligations
hereunder, unless waived in writing by the party to whom such representations
and warranties are made or compliance is promised.
ARTICLE
II
Agreement not to Redeem and
Proxy
Section
2.01 Agreement not to Redeem. In
further consideration of the Aggregate Purchase Price, Seller hereby agrees it
will not exercise its Redemption Rights and if Seller has previously elected to
exercise its Redemption Rights with respect to any of its Shares, it shall
properly and validly withdraw such redemption election with respect to any of
its Shares within one business day of this Agreement.
Section
2.02 Appointment of Proxy. Seller
hereby appoints Xxxxx Xxxxxxx as its true and lawful proxy and attorney-in-fact,
with full power of substitution, to vote all of the Shares in such manner as
such person or his substitute shall in his sole discretion deem proper, and to
otherwise act (including without limitation acting by written consent) with
respect to all the Shares at any meeting of stockholders (whether annual or
special and whether or not an adjourned meeting) of Camden held on or prior to
November 23, 2009. The proxy and power of attorney granted herein shall be
deemed to be coupled with an interest in the Shares, and is irrevocable. The
Seller hereby revokes all prior proxies granted by Seller at any time with
respect to the Shares (and such other shares or other securities) and no
subsequent proxies will be given by Seller (and if given will be deemed not to
be effective).
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ARTICLE
III
Representations
and Warranties of the Seller
Seller
hereby represents and warrants to Buyer on the date hereof and on the Closing
Date that:
Section
3.01 Sophisticated Seller. Seller
is sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the sale of Shares to Buyer.
Section
3.02 Independent Investigation.
Seller, in making the decision to sell the Shares to Buyer, has not
relied upon any oral or written representations or assurances from Buyer or any
of its officers, directors or employees or any other representatives or agents
of Buyer other than as set forth in this Agreement. Seller has had access to all
of the filings made by Camden with the SEC, pursuant to the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and the Securities Act of 1933, as
amended, in each case to the extent available publicly via the SEC’s Electronic
Data Gathering, Analysis and Retrieval system.
Section
3.03 Authority. This Agreement has
been validly authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery thereof by Buyer, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and performance of this
Agreement by Seller does not and will not conflict with, violate or cause a
breach of, constitute a default under, or result in a violation of (i) any
agreement, contract or instrument to which Seller is a party which would prevent
Seller from performing its obligations hereunder or (ii) any law, statute, rule
or regulation to which Seller is subject.
Section
3.04 No Legal Advice from Buyer.
Seller acknowledges that is has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with Seller’s own
legal counsel, investment and tax advisors. Seller is not relying on any
statements or representations of Buyer or any of its representatives or agents
for legal, tax or investment advice with respect to this Agreement or the
transactions contemplated by the Agreement.
Section
3.05 Ownership of Shares. Seller
is the legal and beneficial owner of the Shares and will transfer to Buyer at
the Closing good and marketable title to the Shares free and clear of any liens,
claims, security interests, options, charges or any other encumbrance
whatsoever. The Seller beneficially owned all of the Shares as of the close of
the trading day on November 5, 2009 and has the sole right to exercise
Redemption Rights and vote the Shares, whether at the Meeting or upon action by
written consent, with respect to all of the Shares. Except as provided by this
Agreement, Seller has not, directly or indirectly, granted any proxies or
entered into any voting trust or other agreement or arrangement with respect to
the voting, regardless of whether such vote would occur at the Meeting or upon
action by written consent, of any of the Shares.
Section
3.06 Number
of Shares. The Shares being transferred pursuant to this Agreement
represent all of the Common Stock beneficially owned by Seller as of the date
hereof, including any such shares of Common Stock which may result from the
exercise of any option, call or other derivative security interest.
Section
3.07 Cash Account. If the Shares
are not currently held in an account which prohibits rehypothecation by the
Seller’s prime broker, Seller will transfer the Shares into such an account as
soon as practicable following the execution of this Agreement; provided, however, in no event shall such
transfer occur more than two (2) business days from the execution of this
Agreement.
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Section
3.08 Seller Taxes. Seller
understands that Seller (and not the Buyer) shall be responsible for any and all
tax liabilities of Seller that may arise as a result of the transactions
contemplated by this Agreement.
Section
3.09 Aggregate Purchase Price Negotiated.
Seller represents and understands that both the number of Shares and the
Aggregate Purchase Price were negotiated figures by the parties and that the
terms and conditions by the parties of this Agreement may differ from
arrangements entered into with other holders of Common Stock.
Section
3.10 Finder’s Fees. No investment
banker, broker, finder or other intermediary is entitled to a fee or commission
from Camden in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Seller.
ARTICLE
IV
Representations
and Warranties of the Buyer
Buyer
hereby represents and warrants to Seller on the date hereof and on the Closing
Date that:
Section
4.01 Sophisticated Buyer. Buyer is
sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the purchase of Shares from Seller.
Section
4.02 Independent Investigation.
Buyer, in making the decision to purchase the Shares from Seller, has not
relied upon any oral or written representations or assurances from Seller or any
of its officers, directors, partners or employees or any other representatives
or agents of Seller other than as set forth in this Agreement other than those
made in this Agreement.
Section
4.03 Authority. This Agreement has
been validly authorized, executed and delivered by Buyer and assuming the due
authorization, execution and delivery thereof by Seller, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and performance of this
Agreement by Buyer does not and will not conflict with, violate or cause a
breach of, constitute a default under, or result in a violation of (i) any
agreement, contract or instrument to which Buyer is a party which would prevent
Buyer from performing its obligations hereunder or (ii) any law, statute, rule
or regulation to which Buyer is subject.
Section
4.04 No Legal Advice from Seller.
Buyer acknowledges that is has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with Buyer’s own
legal counsel, investment and tax advisors. Buyer is relying solely on such
counsel and advisors and not on any statements or representations of Seller or
any of its representatives or agents for legal, tax or investment advice with
respect to this Agreement or the transactions contemplated by this
Agreement.
Section
4.05 Buyer Taxes. Buyer
understands that Buyer (and not the Seller) shall be responsible for any
and all tax liabilities of Buyer that may arise as a result of the transactions
contemplated by this Agreement.
ARTICLE
V
Negative
Covenants of the Seller
Section 5.01
No
Further Acquisitions of Camden Securities. Seller hereby covenants and agrees
that following the execution of this Agreement and prior to Closing, Seller
shall not acquire any Common Stock, other securities of
Camden convertible into or exchangeable for shares of Common Stock in Camden or
any options, calls or other rights to acquire Common Stock of Camden or similar
securities or rights that are derivative of, or provide economic benefits based,
directly or indirectly, on the value or price of, any Common Stock or other
securities of Camden.
4
Section
5.03 No Borrowing of the Shares.
Seller hereby covenants and agrees that it shall not allow the Shares to
be borrowed by, or lent to, any other person or entity whatsoever during the
term of this Agreement.
Section
5.02 No
Other Proxies or Voting Agreements. Seller hereby covenants and agrees
that except pursuant to the terms of this Agreement, Seller shall not, directly
or indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any of the Shares,
regardless of whether such vote would occur at the Meeting or upon action by
written consent or (ii) sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect assignment, transfer, encumbrance or
other disposition of, any of the Shares during the term of this Agreement.
Seller shall not seek or solicit any such assignment, transfer, encumbrance or
other disposition or any such contract, option or other arrangement or
understanding with respect to the Shares and agrees to notify Buyer promptly,
and to provide all details requested by Buyer, if Seller shall be approached or
solicited, directly or indirectly, by any person with respect to the
Shares.
ARTICLE VI
Acknowledgement;
Waiver
Section
6.01 Acknowledgement; Waiver.
Seller (i) acknowledges that Buyer may possess or have access to material
non-public information which has not been communicated to Seller; (ii) hereby
waives any and all claims, whether at law, in equity or otherwise, that he, she,
or it may now have or may hereafter acquire, whether presently known or unknown,
against Buyer or any of its officers, directors, employees, agents, affiliates,
subsidiaries, successors or assigns relating to any failure to disclose any
non-public information in connection with the transactions contemplated by this
Agreement, including without limitation, any such claims arising under the
securities or other laws, rules and regulations, and (iii) is aware that Buyer
is relying on the foregoing acknowledgement and waiver in clauses (i) and (ii)
above, respectively, in connection with the transactions contemplated by this
Agreement.
ARTICLE VII
Miscellaneous
Section
7.01 Termination. Notwithstanding
any provision in this Agreement to the contrary, this Agreement shall become
null and void and of no further force and effect upon the earlier to occur: (i)
termination by the written agreement of the parties to this Agreement or (ii)
the day on which the Company terminates the Acquisition.
Section
7.02 Counterparts; Facsimile. This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. This Agreement or any counterpart may be
executed via facsimile transmission, and any such executed facsimile copy shall
be treated as an original.
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Section
7.03 Governing Law. This Agreement
shall for all purposes be deemed to be made under and shall be construed in
accordance with the laws of the State of Delaware. Each of the parties hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall, to the fullest extent applicable,
be brought and enforced first in the Delaware Chancery Court, then to such other
court in the State of Delaware as appropriate and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum.
Section
7.04 Remedies Cumulative. Each of
the parties hereto acknowledges and agrees that, in the event of any breach of
any covenant or agreement contained in this Agreement by the other party, money
damages may be inadequate with respect to any such breach and the non-breaching
party may have no adequate remedy at law. It is accordingly agreed that each of
the parties hereto shall be entitled, in addition to any other remedy to which
they may be entitled at law or in equity, to seek injunctive relief and/or to
compel specific performance to prevent breaches by the other party hereto of any
covenant or agreement of such other party contained in this Agreement.
Accordingly, Seller hereby agrees Buyer is entitled to an injunction prohibiting
any conduct by the Seller in violation of this Agreement and shall not seek the
posting of any bond in connection with such request for an injunction.
Furthermore, in any action by Buyer to enforce this Agreement, Seller waives its
right to assert any counterclaims and its right to assert set-off as a defense.
The prevailing party agrees to pay all costs and expenses, including reasonable
attorneys’ and experts’ fees that such prevailing party may incur in connection
with the enforcement of this Agreement.
Section
7.05 Severability. If any term,
provision or covenant of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated
Section
7.06 Binding
Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be assigned by either
party without the prior written consent of the other party hereto.
Section
7.07 Headings. The descriptive
headings of the Sections hereof are inserted for convenience only and do not
constitute a part of this Agreement.
Section
7.08 Entire
Agreement; Changes in Writing. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior
agreements, representations and warranties, whether oral or written, among the
parties hereto relating to the transaction contemplated hereby. Neither this
Agreement not any provision hereof may be changed or amended orally, but only by
an agreement in writing signed by the other party hereto.
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Section 7.09
Trust Waiver.
Camden’s initial
public offering was consummated on December 5, 2007 as a result of which it
received gross proceeds of $53,010,400, a significant portion of which are held
in a trust fund established by Camden for the benefit of its public stockholders
(the “Trust Fund”). The Trust Fund is invested in U.S. government securities in
a trust account at XX Xxxxxx Xxxxx Bank, N.A. and held in trust by Continental
Stock Transfer & Trust Company (the “Trustee”) pursuant to the Investment
Management Trust Account Agreement, dated as of November 29, 2007, between
Camden and Trustee. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller agrees that it does
not now have, and shall not at any time have, any claim to, or make any claim against, the
Trust Fund or any asset contained therein, regardless of whether such claim
arises as a result of, in connection with or relating in any way to, the
business relationship between Seller, on the one hand, and Camden, on the other
hand, this Agreement, or any other agreement or any other matter, and regardless
of whether such claim arises based on contract, tort, equity or any other theory
of legal liability. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller hereby irrevocably
waives any and all claims it may have, now or in the future (in each case,
however, prior to the consummation of a business combination), and will not seek
recourse against, the Trust Fund for any other reason whatsoever in respect
thereof. Other than with respect to an action for the recovery of the Aggregate
Purchase Price to be paid to Seller in connection with this Agreement, in the
event Seller commences any other action or proceeding based upon, in connection
with, relating to or arising out of any matter relating to Camden, which
proceeding seeks, in whole or in part, relief against the Trust Fund or the
public stockholders of Camden, whether in the form of money damages or
injunctive relief, Camden shall be entitled to recover from Seller the
associated legal fees and costs in connection with any such action where Camden
has been found by a court or adjudicatory body of competent jurisdiction to have
no liability in such action.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
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CAMDEN
LEARNING
CORPORATION
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By:
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 |
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Name:
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Xxxxx Xxxxxxx |
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Title:
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CEO |
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CREDIT
SUISSE SECURITIES (USA)
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By:
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 |
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Name:
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Xxx
Xxxxxx
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Title:
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Director
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Purchase
Price Per Share: $7.92
Number of
Shares: 100,000
Aggregate
Purchase Price: 792,000
Signature
Page to Stock Purchase Agreement
