INVESTMENT AGREEMENT
Exhibit 4.5
January 31, 2008
Re: Transferability of Parent Common Stock
Ladies and Gentleman:
Reference is made to that certain Agreement and Plan of Merger dated as of January 11, 2008 (the
“Merger Agreement”) by and among Blackboard Inc., a Delaware corporation
(“Parent”), Bookstore Merger Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Sub”), The NTI Group, Inc., a Delaware corporation (the
“Company”), and Pace Holdings, LLC, a Delaware limited liability company (“Pace”).
This Investment Agreement shall be effective as of the Closing.
1. Certain Definitions.
(a) Capitalized terms not otherwise defined in this Investment Agreement shall have the
meaning ascribed to them in the Merger Agreement.
(b) As used in this Agreement, the following terms shall have the following respective
meanings:
“Escrow Account” has the meaning given to such term in the Escrow Agreement.
“Escrow Agreement” means that Escrow Agreement to be entered into as of the Closing
among Parent, Pace and American Stock Transfer & Trust Company, as escrow agent.
“Immediate Family” means any relationship by blood, marriage or adoption, not more
remote than first cousin.
“Indemnity Escrow Shares” has the meaning given to such term in the Escrow Agreement.
“Securities” means shares of Parent Common Stock received or receivable by the
undersigned as of the Closing pursuant to the terms of the Merger Agreement other than any Earnout
Stock. Notwithstanding the foregoing, for purposes of this Investment Agreement, all of the
Indemnity Escrow Shares and all of the Working Capital Escrow Shares shall be deemed to be owned by
Pace as of the Closing, and not by any of the other Stockholders.
“Transfer” means offer to sell, sell, contract to sell, pledge, grant an option or
warrant to purchase, loan, pledge, grant any rights with respect to, make any short sale of, or
otherwise transfer or dispose, in each case directly or indirectly or in a single transaction or a
series of transactions.
“Working Capital Escrow Shares” has the meaning given to such term in the Escrow
Agreement.
2. Acknowledgement and Representations.
(a) The undersigned is a Stockholder and understands and acknowledges that, pursuant to
Section 8.2(j) of the Merger Agreement, the undersigned’s entering into this Investment Agreement
is a condition to the Parent’s obligation to consummate the transaction contemplated by the Merger
Agreement.
(b) The undersigned represents and warrants that (i) the undersigned is an accredited investor
(as such term is defined in Rule 501(a) promulgated under the Securities Act of 1933, as amended),
(ii) it is acquiring the Parent Common Stock for investment for its own account and not with the
view to any distribution thereof, (iii) it has substantial experience investing in private
placement transactions of securities in companies similar to the Parent
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and can protect its own interests, (iv) it has such knowledge and experience in financial and
business matters so that it is capable of evaluating the merits and risks of its investment in the
Parent, (v) it has had an opportunity to ask questions of, and receive answers from, the officers
of the Parent concerning the Merger Agreement, the exhibits and schedules attached thereto, and the
transactions contemplated thereby, as well as the Parent’s business, management and financial
affairs, which questions were answered to its satisfaction, and (vi) it believes that it has
received all the information it considers necessary or appropriate for deciding whether to
participate in the private placement.
3. General Transfer Restrictions.
(a) The undersigned agrees that:
(i) until the date that is ninety (90) days from the Closing Date, the undersigned will
Transfer no more than one-third (1/3) of the amount of Securities that the undersigned owns or has
the right to receive as of the Closing, such product to be rounded down to a whole share amount;
and
(ii) until the date that is one hundred eighty (180) days from the Closing Date, the
undersigned will Transfer no more than two-thirds (2/3) of the amount of Securities that the
undersigned owns or has the right to receive as of the Closing, such product to be rounded down to
a whole share amount.
(b) The undersigned agrees that the restriction set forth in Section 3(a) above precludes the
undersigned from engaging in any hedging or other transaction which is designed to, or reasonably
expected to lead to, or result in, a Transfer of any particular Securities that could not otherwise
be Transferred by the undersigned pursuant to the provisions of Section 3(a) above, even if such
particular Securities would be Transferred by someone other than the undersigned.
4. Certain Permitted Transfers. Notwithstanding anything to the contrary contained in this
Investment Agreement:
(a) The restrictions imposed by this Investment Agreement shall not apply whenever and for so
long as the closing price of the Parent Common Stock as publicly reported by the Nasdaq Global
Market has remained at $50.00 or greater for a period of at least five (5) consecutive Business
Days.
(b) (i) If the undersigned is a partnership, then the undersigned may Transfer Securities to a
partner of such partnership; (ii) if the undersigned is a limited liability company, then the
undersigned may Transfer Securities to a member of such limited liability company, (iii) if the
undersigned is an individual, then the undersigned may Transfer Securities by gift, will, or
intestate succession to the undersigned’s Immediate Family, to a trust the beneficiaries of which
are exclusively the undersigned and/or a member or members of the undersigned’s Immediate Family,
to a partnership, the partners of which are exclusively the undersigned and/or a member or members
of the undersigned’s Immediate Family and/or a charity; and (iv) the undersigned may Transfer
Securities to an affiliate (as such term is defined in Rule 144(a) of the regulations under the
Securities Act of 1933, as amended) of the undersigned, provided that in each case it shall be a
condition to any such Transfer that may occur pursuant to this Section 4(b) on or prior to the date
180 days after the Closing Date that (i) each applicable transferee in connection with such
Transfer execute an agreement stating that such transferee is receiving and holding the Securities
subject to the provisions of this Investment Agreement, and there shall be no further Transfer of
such Securities except in accordance with this Investment Agreement, (ii) each applicable
transferee in connection with such Transfer certifies in writing to Parent that such transferee is
bound by the terms of this Investment Agreement as if such transferee had been bound by this
Investment Agreement from the original date of this Investment Agreement and (iii) no filing by any
party (transferee or transferor thereof) under Section 16(a) of or Regulation 13D-G under the
Securities Exchange Act of 1934, as amended, shall be required or shall be made voluntarily in
connection with such Transfer.
(c) The restrictions imposed by this Investment Agreement shall not apply to any Transfer of
any Indemnity Escrow Shares or any Working Capital Escrow Shares from the Escrow Account pursuant
to the express terms of the Escrow Agreement or otherwise with the consent of Parent, whether such
Transfer from the Escrow Account is to Parent, Pace, any other Stockholder or any other Person.
5. Ownership of Securities as of the Closing Date. The undersigned has set forth below the
amount of Securities that the undersigned will, for purposes of this Agreement, own as of the
Closing Date.
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6. Miscellaneous. This Investment Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles of conflict of laws.
This Investment Agreement may be executed in one or more counterparts and delivered by facsimile,
each of which shall be deemed to be an original but all of which shall constitute one and the same
agreement.
No. of shares of Parent Common Stock that are
Securities for purposes of this Agreement
and that are to be received or receivable
by the undersigned as of the Closing (which,
solely in the case of Pace, includes all of the
the Indemnity Escrow Shares and all of
the Working Capital Escrow Shares): shares of Parent Common Stock
| Yours truly, | ||||
By: |
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Name: |
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Date: |
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Acknowledged and Agreed:
| BLACKBOARD INC. | ||||
By: |
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Name: |
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Date: |
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