VOTING AND SUPPORT
AGREEMENT
This Voting and
Support Agreement (“ Agreement ”) is made and
entered into as of June 20, 2009, by and among Cambium Holdings,
Inc., a Delaware corporation (“ Parent ”), and
the undersigned stockholder (the “ Stockholder
”) of Voyager Learning Company, a Delaware corporation (the
“ Company ”). Certain capitalized terms used in
this Agreement are defined in Section 8 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 ,
Stockholder is the holder of record or the “beneficial
owner” (within the meaning of Rule 13d-3 under the
Exchange Act) of certain common stock of the Company;
WHEREAS ,
concurrently with the execution and delivery of this Agreement,
Parent, Vowel Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (“ Purchaser
”), VSS-Cambium Holdings II Corp., a Delaware corporation
(“ Cambium Holdings II ”), Consonant Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent (“ Cambium Merger Sub ”), Vowel
Representative, LLC, a Delaware limited liability company (the
“ Stockholders’ Representative ”), and the
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 Cambium Merger Sub
with and into Cambium Holdings II (the “ Cambium
Merger ”, and together with the Voyager Merger, the
“ Mergers ”); and
WHEREAS ,
as a condition and inducement to Parent’s willingness to
enter into the Merger Agreement, the Stockholder has agreed to
execute, deliver and perform this Agreement.
NOW,
THEREFORE , the parties to this Agreement, intending to be
legally bound, agree, (except that, if more than one Stockholder
executes this agreement, each Stockholder agrees, severally and not
jointly) as follows:
Section 1. Agreement to Vote Shares . During the
Term, at any meeting of the stockholders of the Company (or of the
holders of any class of stock of the Company’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 the Company in lieu of a meeting,
with respect to any of the following, the Stockholder shall vote or
consent with respect to the Subject Securities: (a) in favor
of adoption of the Merger Agreement and approval of the Voyager
Merger and the other actions contemplated by the Merger Agreement
(the “ Merger Proposals ”), (b) against any
Vowel Alternative Proposal or Vowel Superior Proposal and (c)
against any other action, agreement or proposal that could
reasonably be expected to result in any of the conditions to the
consummation of the Voyager 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 Voyager Merger or the other transactions contemplated by
the Merger Agreement. The Subject Securities shall be deemed
present for
purposes of a
quorum at any meeting of the stockholders of Voyager at which the
Voyager Merger is voted upon.
Section 2. Irrevocable Proxy . Concurrently with
the execution of this Agreement, the Stockholder agrees to execute
and deliver to Parent 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 A (the “ Proxy ”),
which Proxy shall remain in full force and effect during the Term
and will automatically be revoked upon expiration of the
Term.
Section 3. Stockholder Covenants .
(a)
Restriction on Transfer of Subject Securities . Except
pursuant to the terms of the Merger Agreement or otherwise provided
in Section 3(c) of this Agreement, during the Term, the
Stockholder 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 the Stockholder 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 Parent or its designee or
(ii) deposit any of the Subject Securities into a voting
trust.
(c)
Permitted Transfers of Subject Securities .
Section 3(a) shall not prohibit a Transfer of Subject
Securities by the Stockholder (i) to any member of the
Stockholder’s immediate family, or to a trust, partnership or
other entity formed for the benefit of the Stockholder or any
member of the Stockholder’s immediate family, (ii) upon
the death of the Stockholder or (iii) to an Affiliate of the
Stockholder; provided , however , that a Transfer
referred to in this sentence shall be permitted only if, as a
precondition to such Transfer, the transferee (x) agrees in a
writing to be bound by the terms of this Agreement by executing and
delivering to Parent the Joinder attached as Exhibit B
hereto and (y) if prior to the Effective Time, delivers a
Proxy in the form attached hereto as Exhibit A to
Parent. The term “Stockholder” shall include and also
refer to any Person to whom Subject Securities are
Transferred.
(d)
Inconsistent Agreements . The Stockholder 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.
(e)
No-Solicitation . During the Term, the Stockholder agrees
not to, nor to permit any investment banker, financial adviser,
attorney, accountant or other representative of the Stockholder to,
directly or indirectly, engage in any activity which would be
prohibited by Section 5.3(a) of the Merger Agreement if engaged in
by the Company.
Section 4. Representations, Warranties and Covenants of
Stockholder . The Stockholder hereby represents, warrants
and covenants to Parent and Purchaser as follows:
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(a)
Due Authorization, Etc . The Stockholder has legal capacity,
power and authority to enter into this Agreement and the Proxy.
This Agreement has been, and each Proxy when delivered will have
been, duly and validly executed and delivered by the Stockholder
and constitute valid and binding agreements or instruments of the
Stockholder 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 the Stockholder do not, and the performance of
this Agreement and the Proxy by the Stockholder 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 the Stockholder, if any, (ii) any law, rule,
regulation, order, decree or judgment applicable to the Stockholder
or the Subject Securities held by the Stockholder, or
(iii) any contract, indenture, guarantee, lease, mortgage,
license or other agreement, instrument, obligation or undertaking
of any kind to which Stockholder is a party or by which the
Stockholder or any of its properties or assets are bound. Except
pursuant to this Agreement or otherwise in favor of Parent, the
Stockholder 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) the Stockholder Owns (and has the sole right to vote and
dispose of) all of the shares of Company Common Stock indicated on
Schedule I hereto; (ii) the Stockholder Owns the
options and the other rights to acquire shares of Company Common
Stock that are exercisable for the number of shares of Company
Common Stock indicated on Schedule I hereto, and
(iii) the Stockholder does not directly or indirectly Own any
capital stock or other securities of the Company, or any option,
warrant or other right to acquire (by purchase, conversion or
otherwise) any capital stock or other securities of the Company,
other than the stock and options, warrants and other rights set
forth on Schedule I hereto. Except as permitted by this
Agreement the Subject Securities are now and, at all times during
the Term, the Subject Securities will be, held by the Stockholder
or by a nominee or custodian for the benefit of the Stockholder,
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 Parent and Purchaser. The Stockholder
understands and acknowledges that Parent and Purchaser are entering
into the Merger Agreement in reliance upon the Stockholder’s
execution, delivery and performance of this Agreement.
(e)
Stop Transfer. The Stockholder hereby agrees and covenants
that it will not request that the Company 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. The Stockholder hereby acknowledges and agrees that
the Company may instruct its transfer agent to prohibit any
Transfer during the Term of any certificate or uncertificated
interests representing any of the Subject Securities Owned by the
Stockholder except to the extent permitted by this
Agreement.
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Section 5. Waiver of Appraisal Rights . The
Stockholder hereby knowingly, voluntarily and intentionally waives,
and agrees not to exercise or assert, any rights of appraisal from
the Voyager Merger and the transactions contemplated by the Merger
Agreement that the Stockholder may have.
Section 6. Further Assurances . From time to
time and without additional consideration, the Stockholder shall
(at Parent’s sole expense and without requiring the
Stockholder 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 Parent’s sole
expense) take such further actions (subject to the limitations in
this Section 6), as Parent may reasonably request in writing
for the purpose of carrying out and furthering the intent of this
Agreement.
Section 7. Appointment of Stockholders’
Representative .
(a)
Appointment . The Stockholder irrevocably makes, constitutes
and appoints the Stockholders’ Representative as its agent,
attorney-in-fact and representative and authorizes and empowers it
to fulfill the role of the Stockholders’ Representative as
set forth in the Merger Agreement, which appointment shall be
irrevocable and coupled with an interest. The Stockholder
acknowledges and agrees that the member and/or manager of the
Stockholders’ Representative may be removed, replaced and/or
substituted at any time or from time to time after the date hereof
without any consent or approval by, any party hereto, subject only
to the requisite approval of the Vowel Stockholders.
(b)
Authority. The Stockholder hereby irrevocably grants the
Stockholders’ Representative full power and authority on its
behalf to take the actions after the Closing Date set forth
immediately below:
(i) to
enforce (1) any Post-Closing Obligations of Parent, Cambium
Holdings II or their respective Subsidiaries pursuant to the Merger
Agreement and (2) any obligations under the Escrow Agreement,
the Contingent Value Right Agreement, the Security Agreement, the
VSS Limited Guarantee, or any other Transaction Documents to the
extent such other Transaction Documents expressly provide rights or
benefits to the Stockholders’ Representative or to the
Stockholder or any other Vowel Stockholder after the
Closing;
(ii) to
negotiate and compromise, on behalf of the Stockholder, any dispute
that may arise under, and to exercise or refrain from exercising
any remedies available under, the agreements and obligations
contemplated in Section 7(b)(i) , and to execute, on
behalf of the Stockholder, any settlement agreement, release or
other document with respect to such dispute or remedy;
(iii) to
engage attorneys, accountants and agents at the expense of and on
behalf of the Stockholder and the other Vowel
Stockholders;
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(iv) to
give and receive notice or other communications on behalf of the
Stockholder;
(v) to
receive all or any portion of amounts in the Escrow Account to
fund: (1) the payment of reasonable costs and expenses
(including without limitation any insurance contemplated by clause
(iv)(2)) of the Stockholders’ Representative incurred in
connection with the performance of its duties or the taking of any
action contemplated in this Section 7(d); and (2) the
purchase of any insurance or similar products that are reasonably
necessary to provide indemnification to the Stockholders’
Representative as contemplated in Section 7(d) ; and/or
(3) any reasonable compensation payable to the
Stockholders’ Representative for performing its services in
accordance with this Agreement and any applicable Transaction
Document; and
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