VOTING AND SUPPORT
AGREEMENT
This Voting and
Support Agreement (“ Agreement ”) is made and
entered into as of June 20, 2009, by and between Voyager Learning
Company, a Delaware corporation (the “ Company
”), and VSS-Cambium Holdings III, LLC, a Delaware limited
liability company (“ Holdings III ”). Certain
capitalized terms used in this Agreement are defined in
Section 7 hereof and certain other capitalized terms
used in this Agreement that are not defined herein shall have the
meaning given to such terms in the Merger Agreement (as defined
below).
WHEREAS ,
Holdings III is the holder of record or the “beneficial
owner” (within the meaning of Rule 13d-3 under the
Exchange Act) of (i) all of the membership interests in
VSS-Cambium Holdings III Acquisition, LLC, a Delaware limited
liability company (“ Acquisition LLC ”) and
(ii) all outstanding capital stock of VSS-Cambium Holdings II
Corp., a Delaware corporation (“ Cambium Holdings II
”);
WHEREAS ,
concurrently with the execution and delivery of this Agreement,
Cambium Holdings, Inc., a Delaware corporation (“
Parent ”), Vowel Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent (“
Purchaser ”), the Company, Cambium Holdings II,
Consonant Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (“ Consonant Merger
Sub ”), and Vowel Representative, LLC, a Delaware limited
liability company, are entering into an Agreement and Plan of
Mergers (the “ Merger Agreement ”) which
provides, upon the terms and subject to the conditions set forth
therein, for the merger of Purchaser with and into the Company (the
“ Voyager Merger ”) and the merger of Consonant
Merger Sub with and into Cambium Holdings II (the “
Cambium Merger ”) and together with the Voyager
Merger, the “ Mergers ”);
WHEREAS ,
pursuant to the Merger Agreement and the Holdings III Merger
Agreement attached as Exhibit A-1 to the Merger Agreement,
prior to the Effective Time, VSS-Cambium Holdings, LLC, a Delaware
limited liability company (“ VSS-Cambium LLC ”)
will merge with and into Acquisition LLC with VSS-Cambium LLC as
the surviving entity (the “ Holdings III Merger
”);
WHEREAS ,
following the Holdings III Merger and prior to the Effective Time,
VSS-Cambium LLC and Cambium Holdings II will be wholly owned
subsidiaries of Holdings III, and pursuant to the Contribution
Agreement, dated as of the date hereof, between Holdings III and
Cambium Holdings II in the form attached as Exhibit A-2 to the
Merger Agreement (the “ Holdings III Contribution
Agreement ”), Holdings III will contribute all of the
outstanding membership interest in VSS-Cambium LLC to Cambium
Holdings II (the “ Cambium Reorganization ”);
and
WHEREAS ,
as a condition and inducement to the Company’s willingness to
enter into the Merger Agreement, Holdings III has agreed to
execute, deliver and perform this Agreement.
NOW,
THEREFORE , the parties to this Agreement, intending to be
legally bound, agree as follows:
Section 1. Agreements to Vote.
(a)
Agreement to Vote LLC Interests . During the Term, at
any meeting of the members of Acquisition LLC (or of the holders of
any class of membership interests of Acquisition LLC) called with
respect to any of the following, and at every adjournment or
postponement thereof and in any action by written consent of the
members of Acquisition LLC in lieu of a meeting, with respect to
any of the following, Holdings III shall vote or consent with
respect to the Subject Acquisition Securities: (a) in favor of
adoption of the Holdings III Merger Agreement and approval of the
Holdings III Merger and the other actions contemplated by the
Holdings III Merger Agreement (the “ Holdings III Merger
Proposals ”), (b) against any action, agreement or
proposal that could reasonably be expected to impede, interfere
with, delay, postpone or materially adversely affect the Holdings
III Merger or the other transactions contemplated by the Holdings
III Merger Agreement, and (c) against any action, agreement or
proposal that could reasonably be expected to impede, interfere
with, delay, postpone or materially adversely affect the Cambium
Reorganization. The Subject Acquisition Securities shall be deemed
present for purposes of a quorum at any meeting of the members of
Acquisition LLC at which the Holdings III Merger is voted
upon.
(b)
Agreement to Vote Shares . During the Term, at any
meeting of the stockholders of Cambium Holdings II (or of the
holders of any class of stock of Cambium Holdings II’s
capital stock) called with respect to any of the following, and at
every adjournment or postponement thereof and in any action by
written consent of the stockholders of Cambium Holdings II in lieu
of a meeting, with respect to any of the following, Holdings III
shall vote or consent with respect to the Subject Cambium Holdings
II Securities: (a) in favor of adoption of the Merger
Agreement and approval of the Cambium Merger and the other actions
contemplated by the Merger Agreement (the “ Cambium Merger
Proposals ”), (b) against any action, agreement or
proposal that could reasonably be expected to result in any of the
conditions to the consummation of the Cambium Merger under the
Merger Agreement not being fulfilled or which could reasonably be
expected to otherwise impede, interfere with, delay, postpone or
materially adversely affect the Cambium Merger or the other
transactions contemplated by the Merger Agreement. The Subject
Cambium Securities shall be deemed present for purposes of a quorum
at any meeting of the stockholders of Cambium Holdings II at which
the Cambium Merger is voted upon.
Section 2. Irrevocable Proxies .
(a)
Membership Proxy . Concurrently with the execution of
this Agreement, Holdings III agrees to execute and deliver to the
Company a proxy, which is coupled with an interest and shall be
irrevocable to the fullest extent permitted by law, with respect to
the membership interests referred to therein in the form attached
hereto as Exhibit A (the “ Membership
Proxy ”), which Membership Proxy shall remain in full
force and effect during the Term and will automatically be revoked
upon expiration of the Term.
(b)
Cambium Holdings II Proxy . Concurrently with the
execution of this Agreement, Holdings III agrees to execute and
deliver to the Company a proxy, which is coupled with an interest
and shall be irrevocable to the fullest extent permitted by law,
with respect to the shares referred to therein in the form attached
hereto as Exhibit B (the “ Cambium Holdings II
Proxy ”, and together with the Membership Proxy, the
“ Proxies ”), which Cambium Holdings II Proxy
shall remain in full force and effect during the Term and will
automatically be revoked upon expiration of the Term.
(a)
Restriction on Transfer of Subject Securities . Except
pursuant to the terms of the Merger Agreement, the Holdings III
Merger Agreement and the Holdings III Contribution Agreement,
during the Term, Holdings III shall not, directly or indirectly,
cause or permit any Transfer of any of the Subject Securities to be
effected. Any Transfer of any Subject Securities in violation of
this Section 3 shall be void and have no force or
effect.
(b)
Restriction on Transfer of Voting Rights of Subject
Securities. During the Term, except as provided in this
Agreement Holdings III shall not: (i) grant any proxy or power
of attorney or enter into a voting agreement or similar arrangement
with respect to the Subject Securities except to the extent such
proxy, power of attorney, voting agreement or similar arrangement
is in favor of the Company or its designee or (ii) deposit any
of the Subject Securities into a voting trust.
(c)
Inconsistent Agreements . Holdings III agrees, during the
Term, that it shall not enter into any agreement, proxy, voting
trust or other arrangement or understanding with any other Person
that would violate or prohibit the performance of this
Agreement.
Section 4. Representations, Warranties and
Covenants . Holdings III hereby represents, warrants and
covenants to the Company as follows:
(a)
Due Authorization, Etc . Holdings III has legal capacity,
power and authority to enter into this Agreement and the Proxies.
This Agreement has been, and each Proxy when delivered will have
been, duly and validly executed and delivered by Holdings III and
constitute valid and binding agreements or instruments of Holdings
III enforceable in accordance with their terms, except as the same
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to
creditors’ rights generally and subject to general principles
of equity.
(b)
No Conflict . The execution and delivery of this Agreement
and each Proxy by Holdings III do not, and the performance of this
Agreement and each Proxy by Holdings III will not conflict with,
violate or result in a breach of or constitute (with or without
notice or the passage of time) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under (i) the organizational documents of
Holdings III, if any, (ii) any law, rule, regulation, order, decree
or judgment applicable to Holdings III or the Subject Securities
held by Holdings III, or (iii) any contract, indenture,
guarantee, lease, mortgage, license or other agreement, instrument,
obligation or undertaking of any kind to which Holdings III is a
party or by which Holdings III or any of its properties
or
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assets are
bound. Except pursuant to this Agreement or otherwise in favor of
the Company, Holdings III has not, and shall not, grant any proxy
with respect to the Subject Securities.
(c)
Title to Securities . As of the date of this Agreement:
(i) Holdings III Owns all of the shares of Cambium Holdings II
Common Stock indicated on Schedule I hereto;
(ii) Holdings III Owns the LLC Interest indicated on
Schedule I hereto; and (iii) Holdings III does not
directly or indirectly Own any capital stock, membership interests
or other securities of Acquisition LLC or Cambium Holdings II, or
any option, warrant or right to acquire (by purchase, conversion or
otherwise) any capital stock, membership interests or other
securities of Acquisition LLC or Cambium Holdings II other than
those indicated on Schedule I hereto. Except as
permitted by this Agreement, the Holdings III Merger and the
Holdings III Contribution, the Subject Securities are now and, at
all times during the Term, the Subject Securities will be, held by
Holdings III or by a nominee or custodian for the benefit of
Holdings III, free and clear of all mortgages, claims, charges,
liens, security interests, pledges or options, proxies, voting
trusts or agreements, understandings or arrangements or any other
rights whatsoever.
(d)
Reliance by the Company. Holdings III understands and
acknowledges that the Company is entering into the Merger Agreement
in reliance upon Holdings III’s execution, delivery and
performance of this Agreement.
(e)
Stop Transfer. Holdings III hereby agrees and covenants that
it will not request that Acquisition LLC or Cambium Holdings II
register the Transfer of any certificate or uncertificated interest
representing any of the Subject Securities unless such Transfer is
made in compliance with this Agreement or in connection with the
Holdings III Merger Agreement or the Holdings III Contribution
Agreement, as the case may be. Holdings III hereby acknowledges and
agrees that Acquisition LLC or Cambium Holdings II may instruct
their respective transfer agent to prohibit any Transfer during the
Term of any certificate or uncertificated interests representing
any of the Subject Securities Owned by Holdings III except to the
extent permitted by this Agreement or necessary to effect the
Holdings III Merger Agreement or the Holdings III Contribution
Agreement.
(f)
Holdings III Contribution Agreement . Simultaneously with
the execution and delivery of this Agreement Holdings III and
Cambium Holdings II have entered into the Holdings III Contribution
Agreement in the form attached as Exhibit A-2 to the Merger
Agreement.
Section 5. Waiver of Appraisal Rights . Holdings
III hereby agrees not to exercise or assert, any rights of
appraisal from the Cambium Merger and the transactions contemplated
by the Merger Agreement that Holdings III may have.
Section 6. Further Assurances . From time to
time and without additional consideration, Holdings III shall (at
the Company’s sole expense and without requiring Holdings III
to undertake any additional liability or obligation or make any
representation or warranty to any Person) execute and deliver, or
cause to be executed and delivered, such additional confirmatory
transfers, assignments, endorsements, proxies, consents and other
instruments, and shall (at the Company’s sole expense) take
such further actions (subject to the limitations in this
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Section 6 ), as the Company may reasonably request in
writing for the purpose of carrying out and furthering the intent
of this Agreement.
Section 7. Certain Definitions . For purposes of
this Agreement,
(a)
“ Affiliate ” has the meaning assigned thereto
in Rule 12b-2 under the Exchange Act.
(b)
“ Cambium Holdings II Common Stock ” means the
common stock, par value of $0.001 per share, of Cambium Holdings
II.
(c)
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
(d) Holdings
III shall be deemed to “ Own ” or to have
acquired “ Ownership ” of a security if Holdings
III, at the time of determination, is the record owner of such
security, or is the “beneficial owner” of such security
within the meaning of Rule 13d-3 under the Exchange
Act.
(e)
“ LLC Interests ” means the membership interests
of Acquisition LLC.
(f)
“ Person ” means any (i) individual,
(ii) corporation, limited liability company, partnership or
other entity or (iii) Governmental Authority.
(g)
“ Subject Acquisition Securities &rdquo
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