This Agreement
(this “ Agreement ”) is entered into as of
July 24, 2009, by and between VSS Fund Management LLC (“
VSS LLC ”) and Cambium-Voyager Holdings, Inc., a
Delaware corporation (the “ Company
”).
WHEREAS ,
VSS LLC is a private equity and mezzanine capital fund management
company, and as of the date hereof one of its investment funds owns
all of the issued and outstanding shares of the Company’s
outstanding common stock, $.001 par value per share; and
WHEREAS ,
the Company desires to enter into this Agreement to provide for the
payment to VSS of certain consulting fees as set forth in this
Agreement.
NOW,
THEREFORE , in consideration of the mutual covenants and
agreements herein made and intending to be legally bound, the
parties hereto agree as follows:
1.
Consulting Fee . In each instance after the date hereof that
an additional equity investment is made in the Company or any of
its subsidiaries (regardless of whether such investment is through
an underwritten offering or private placement of securities of the
Company or any of its subsidiaries) and in each instance after the
date hereof that the Company consummates any other equity or
equity-linked financing, debt financing (including without
limitation, bank, mezzanine, structured capital or similar
institutional debt financing), or any reorganization,
recapitalization, refinancing, reclassification, rights offering,
or other similar transaction, and in each instance that the Company
or any of is subsidiaries obtains debt financing from any entity,
VSS LLC, or its designee, shall be entitled to a fee from the
Company payable at the time of any such investment, financing or
transaction in an aggregate amount of 1.0% of the gross proceeds of
such investment, financing or transaction. Upon each acquisition or
disposition of any business or entity by the Company or any of its
subsidiaries (including without limitation any transaction
involving the acquisition of or a disposition to another portfolio
company of VSS LLC, but excluding transactions where the only
parties thereto consist of the Company and its subsidiaries), the
Company shall pay VSS LLC, or its designee, a fee in an amount
equal to 1.0% of the enterprise value of that business or entity,
as reasonably determined by VSS LLC, upon consummation of such
acquisition or disposition. The Company shall promptly reimburse
VSS LLC, following notice from VSS LLC thereof, for all reasonable
out-of-pocket fees and expenses incurred by it in performing the
aforementioned services for or on behalf of the Company, including,
without limitation, legal, financial or tax advisor fees, and
travel, hotel and meal expenses incurred and any fees and expenses
relating to any U.S. Securities and Exchange Commission, NASDAQ or
other regulatory compliance filings. The right to fees and expenses
contemplated in this Section 1 shall terminate upon the
earlier to occur of: (i) the date upon which funds managed by
VSS LLC collectively cease to “beneficially own” (as
determined in accordance with Rule 13d-3 of the Securities
Exchanges Act of 1934, as amended) at least 10% of the issued and
outstanding shares of Common Stock of the Company, and
(ii) unless renewed by the audit committee of the
Company’s board of directors, January 1, 2015. For the
avoidance of doubt, no fees or expenses shall be payable to VSS
under this Section 1 to the extent VSS LLC receives a fee
pursuant to that certain Amended and Restated Limited Liability
Company Agreement of VSS-Cambium Holdings, LLC, dated as of
April 12, 2007, as amended.
2.
Indemnification . The Company agrees that in the event VSS
LLC or any of its officers, managers, members, partners, employees,
agents, affiliates or controlling persons, if any (each, including
VSS LLC, an “ Indemnified Person ”), become
involved in any capacity (whether or not a party) in any action,
claim, proceeding or investigation (including any formal or
informal regulatory inquiry, any securityholder action or claim or
any action broug
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