LOCK UP AGREEMENT
EXHIBIT 10.5
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To:
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Camden Learning
Corporation
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000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Re:
Proposed Business Combination Involving Camden Learning Corporation and Dlorah,
Inc.
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1.
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Acknowledgement. The
undersigned acknowledges that Camden Learning Corporation ("Camden") and Dlorah, Inc. ("Dlorah") are intending to complete a
proposed business combination pursuant to that certain Agreement and Plan
of Reorganization, dated August 7, 2009, as amended by the Amended and
Restated Agreement and Plan of Reorganization, dated August 11, 2009, as
further amended by Amendment No. 1 to the Amended and Restated Agreement
and Plan of Reorganization by and among Camden, Dlorah and Dlorah
Subsidiary Inc., a wholly-owned subsidiary of Camden (collectively, the
“Merger Agreement”). In consideration of the
transactions contemplated by the Merger Agreement and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by the undersigned), the undersigned covenants and agrees
with Camden as follows with respect to the shares of Camden Class A common
stock, common stock and warrants issued or issuable to the undersigned (or
to persons or entities with respect to which the undersigned would have
beneficial ownership of such shares within the rules and regulations of
the Securities and Exchange Commission) whether pursuant to the Merger
Agreement or otherwise and any other security of Dlorah or Camden that is
convertible into, or exercisable or exchangeable for, securities of Camden
(collectively, the “Camden Shares”).
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2.
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Lock-Up. The undersigned
represents and warrants to Camden that, for the duration of the Lock-Up Period (as defined
below), the undersigned will not, directly or indirectly: (i) offer, sell,
contract to sell, pledge, lend, grant any option, right or warrant to
purchase, make any short sale or otherwise transfer or dispose of,
directly or indirectly, any Camden Shares, (ii) establish or increase any
“put equivalent position” or liquidate or decrease any “call equivalent
position” with respect to any Camden Shares (in each case within the
meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder) or otherwise enter
into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of
ownership of any Camden Shares, whether or not such transaction is to be
settled by delivery of Camden Shares, other securities, cash or other
consideration, or (iii) engage directly or indirectly in any transaction
the likely result of which would involve a transaction prohibited by
either of clauses (i) or (ii). The foregoing restriction is expressly
agreed to preclude the undersigned from engaging in any hedging or other
transaction which is designed to, or reasonably expected to lead to, or
result in, a sale or disposition of any Camden Shares even if such Camden
Shares would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include without limitation
any short sale or any purchase, sale or grant of any right (including
without limitation any put or call option) with respect to any of the
Camden Shares or with respect to any security that includes, relates to,
or derives any significant part of its value from the Camden Shares. The
undersigned agrees and consents to the entry of stop transfer instructions
with Camden’s transfer agent and registrar against, and authorizes Camden
to cause the transfer agent and registrar to decline, the transfer of
relevant securities held by the undersigned except in compliance with the
foregoing restrictions.
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Notwithstanding
the foregoing, the undersigned may sell, contract to sell, dispose of, or
otherwise transfer for value or otherwise, the Camden Shares by (i) gift, will
or intestacy, or (ii) distribution to partners, members, shareholders or
beneficiaries of the undersigned; provided however, that in the case of a
transfer pursuant to (i) or (ii) above, it shall be a condition to such transfer
that the transferee execute an agreement stating that the transferee is
receiving and holding the Camden Shares subject to the provisions of this Lock
Up Agreement.
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3.
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Lock-Up Period. For the
purposes hereof, the “Lock-Up Period” shall mean with respect to all of
the Camden Shares, the period beginning on the date of the Effective Time
(as such term is defined in the Merger Agreement) and ending on the date
that is one hundred eighty (180) days following the date of the Effective
Time.
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4.
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Termination. This
agreement may be terminated by mutual written consent of the parties
hereto. This agreement shall be terminated one calendar day following the
date that is one hundred eighty-one (181) days following the date of the
Effective Time, in accordance with its terms. The undersigned further
understands that this agreement is irrevocable, and that all authority
herein conferred or agreed to be conferred shall survive death or
incapacity of the undersigned and will be binding on the undersigned and
the respective successors, heirs, personal representatives, and assigns of
the undersigned.
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5.
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Authority. The
undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into the agreements set forth
herein.
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6.
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Public Disclosure. The
undersigned agrees not to make any public disclosure or announcement of or
pertaining to this agreement, the Merger Agreement or the transactions
contemplated thereby or hereby without the prior written consent of Camden
except as required by law.
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7.
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Damages. The undersigned
recognizes and acknowledges that this agreement is an integral part of the
Merger Agreement and that a breach by the undersigned of any covenants or
other commitments contained in this Agreement will cause the other party
to sustain injury for which it may not have an adequate remedy at law for
money damages. Therefore, the undersigned agrees that in the event of any
such breach, Camden shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity, and the undersigned agrees
to waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other equitable
relief.
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8.
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Governing Law. This
agreement shall be governed by and construed in accordance with the laws
of the State of Delaware applicable therein (without regard to conflict of
laws principles).
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9.
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Facsimile. Camden and
the undersigned shall be entitled to rely on delivery of a facsimile copy
hereof which shall be legally effective to create a valid and binding
agreement of the undersigned and Camden in accordance with the terms
hereof.
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10.
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Counterparts. 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
agreement.
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2
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11.
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Entire Agreement. This
agreement constitutes the entire agreement and understanding between the
parties pertaining to the subject matter of this
agreement.
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H.
& X. XXXXXXXXXX LIMITED PARTNERSHIP
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By:
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/s/
Xxx Xxxxxxxxxx
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Xxx
Xxxxxxxxxx
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General
Partner
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3
