exv5
Exhibit 5
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (Agreement), dated as of May 17, 2011, is made by and between
Academic Acquisition Corp., a Delaware corporation (Parent), and the undersigned holders
(collectively, the Stockholder) of shares of common stock, par value $0.001 per share
(the Common Stock), of Nobel Learning Communities, Inc., a Delaware corporation (the
Company).
WHEREAS, Parent, Academic Merger Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (Merger Sub), and the Company have entered into an Agreement and
Plan of Merger, dated as of even date herewith (as such agreement may be subsequently amended or
modified (with the consent of the Stockholder, to the extent required by this Agreement), the
Merger Agreement), providing for the merger of Merger Sub with and into the Company (the
Merger);
WHEREAS, the Stockholder beneficially owns (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the Exchange Act)) and has sole voting power with respect to
the number of shares of Common Stock indicated opposite the Stockholders name on Schedule
1 attached hereto (together with any New Shares (defined in Section 3 below), the
Shares);
WHEREAS, as an inducement and a condition to the willingness of Parent and Merger Sub to enter
into the Merger Agreement, and in consideration of the substantial expenses incurred and to be
incurred by them in connection therewith, the Stockholder has agreed to enter into and perform this
Agreement; and
WHEREAS, all capitalized terms used in this Agreement without definition herein shall have the
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of, and as a condition to, Parent entering into the Merger
Agreement and proceeding with the transactions contemplated thereby, and in consideration of the
expenses incurred and to be incurred by Parent in connection therewith, the Stockholder and Parent
agree as follows:
1. Agreement to Vote Shares. The Stockholder agrees that, prior to the
Expiration Date (as defined in Section 2 below), at any meeting of the stockholders of the Company
or any adjournment or postponement thereof with respect to the Merger, the Merger Agreement or any
Takeover Proposal, the Stockholder shall:
(a) appear at such meeting or otherwise cause the Shares to be counted as present
thereat for purposes of calculating a quorum; and
(b) from and after the date hereof until the Expiration Date, vote (or cause to be
voted) all of the Shares that such Stockholder shall be entitled to so vote: (i) in favor
of adoption and approval of the Merger Agreement and all other matters contemplated by the
Merger Agreement as to which stockholders of the Company are called upon to vote in favor of
to the extent that any such matters are necessary for the consummation of the Merger and the
other transactions contemplated by the Merger Agreement in accordance
with its terms; and (ii) against any Takeover Proposal, or any agreement, transaction or other matter that is
intended to, or would reasonably be expected to, impede, interfere with, delay, postpone,
discourage or materially and adversely affect the consummation of the Merger and all other
material transactions contemplated by the Merger Agreement. The Stockholder shall not take
or commit or agree to take any action inconsistent with the foregoing.
Except as set forth in this Section 1, the Stockholder shall not be restricted from
voting in favor of, against or abstaining with respect to any matter presented to the stockholders
of the Company. In addition, nothing in this Agreement shall give Parent, Merger Sub or any of its
respective officers or designees the right to vote any Shares in connection with the election of
directors.
2. Expiration Date; Termination. As used in this Agreement, the term
Expiration Date shall mean the earliest to occur of (a) the Effective Time, (b) such date
and time as the Merger Agreement shall be terminated pursuant to Article VII thereof, (c) upon
mutual written agreement of the parties to terminate this Agreement or (d) at the election of the
Stockholder, 120 days after the date hereof, unless, on such
date, either (i) the Education and Childcare Approvals have not been obtained (other than due
to the failure of Parent or Company to comply with their respective obligations under Section 5.03
of the Merger Agreement), or (ii) the Stockholders Meeting has not been held due to SEC review of
the Proxy Statement and delays resulting therefrom (other than delays caused by the failure of the
Company or Parent to comply with their respective obligations under Section 5.01(a) of the Merger
Agreement), in either of which cases, the elective Expiration Date under this clause (d) shall be
extended to 180 days after the date hereof. The Stockholder shall also have the right to terminate
this Agreement at any time by written notice to Parent if any of the terms of the Merger Agreement
are amended, modified or waived without the written consent of Stockholder if such amendment,
modification or waiver (A) creates any additional condition to the obligation of Parent and Merger
Sub to consummate, or otherwise materially delays, the Merger, (B) changes the consideration
payable with respect to the Shares pursuant to the Merger Agreement in a manner adverse to the
Stockholder (for the avoidance of doubt, a decrease in the amount, or any material delay in the
receipt, of such consideration or a change in form of such consideration to anything other than
cash shall be considered adverse to the Stockholder), (C) extends the End Date under the Merger
Agreement, or (D) otherwise adversely affects the Stockholder in its capacity as a stockholder of
the Company. Upon termination or expiration of this Agreement for any reason (including upon the
Expiration Date), no party shall have any further obligations or liabilities under this Agreement;
provided, however, such termination or expiration shall not relieve any party from
liabilities or damages arising out of the willful and material breach by such party of any of its
representations, warranties, covenants or other agreements contained in this Agreement.
3. Additional Purchases. The Stockholder agrees that any shares of capital stock of
the Company that the Stockholder or its Subsidiaries or controlled or controlling Affiliates (or
any controlled Affiliate of any Controlling Affiliate) purchases or with respect to which the
Stockholder or its Subsidiaries or controlled or controlling Affiliates (or any controlled
Affiliate of any Controlling Affiliate) otherwise acquires beneficial ownership (as defined in Rule
13d-3 under the Exchange Act) after the execution of this Agreement and prior to the Expiration
Date (New Shares), shall be subject to the terms and conditions of this Agreement to the
same
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extent as if they constituted Shares as of the date hereof and the representation and
warranties in Section 5 below shall be true and correct as of the date that beneficial ownership
(as defined in Rule 13d-3 under the Exchange Act) of such New Shares is acquired. The Stockholder
agrees to promptly notify Parent in writing of the acquisition and number of any New Shares. For
the avoidance of doubt, for purposes of this Agreement, the Company shall not be considered a
controlled or controlling Affiliate of the Stockholder.
4. Agreement to Retain Shares. From and after the date hereof until the Expiration
Date, except as expressly permitted by this Agreement, the Stockholder shall not, directly or
indirectly: (a) sell, assign, transfer, tender, or otherwise dispose of (including, without
limitation, by the creation of a Lien (as defined in Section 5(c) below)) any Shares, (b) deposit
any Shares into a voting trust or enter into a voting agreement or similar arrangement with respect
to such Shares or grant any proxy or power of attorney with respect thereto, (c) enter into any
contract, option, commitment or other arrangement or understanding with respect to the direct or
indirect sale, transfer, assignment or other disposition of (including, without limitation, by the
creation of a Lien (as defined in Section 5(c) below)) any Shares, or (d) take any action that
would make any
representation or warranty of the Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling the Stockholder from performing the Stockholders obligations
under this Agreement. Notwithstanding the foregoing, the Stockholder may make transfers (i) to its
controlled or controlling Affiliates who agree in writing, prior to and as a condition to such
transfer, to be bound by the terms and conditions of this Agreement to the same extent as if they
were the Stockholder hereunder (including without limitation, by making all of the
representations and warranties of the Stockholder hereunder as of the date of such transfer), and
(ii) as Parent may otherwise agree in writing in its sole and absolute discretion.
5. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent as follows:
(a) the Stockholder has the full power and authority to execute and deliver this
Agreement and to perform the Stockholders obligations hereunder;
(b) this Agreement (assuming this Agreement constitutes a valid and binding agreement
of Parent) has been duly executed and delivered by or on behalf of the Stockholder and
constitutes a valid and binding agreement with respect to the Stockholder, enforceable
against the Stockholder in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of equity and
by bankruptcy, insolvency and similar laws affecting creditors rights and remedies
generally;
(c) the Stockholder beneficially owns the number of Shares indicated opposite such
Stockholders name on Schedule 1, free and clear of any liens, claims, charges or
other encumbrances or restrictions of any kind whatsoever (Liens), and has sole or
otherwise unrestricted, voting power with respect to such Shares, and none of the Shares are
subject to any voting trust or other agreement, arrangement, or restriction
with respect to the voting of the Shares, except as contemplated by this Agreement;
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(d) the execution and delivery of this Agreement by the Stockholder does not, and the
performance by the Stockholder of its obligations hereunder and the compliance by the
Stockholder with any provisions hereof will not, violate or conflict with, result in a
material breach of or constitute a default (or an event that with notice or lapse of time or
both would become a material default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien on any
Shares pursuant to, any agreement, instrument, note, bond, mortgage, contract, lease,
license, permit or other obligation or any order, arbitration award, judgment or decree to
which the Stockholder is a party or by which the Stockholder is bound, or any law, statute,
rule or regulation to which the Stockholder is subject or, in the event that the Stockholder
is a corporation, partnership, trust or other entity, any bylaw or other organizational
document of the Stockholder; and
(e) the execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder does not and will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any governmental or
regulatory authority by the Stockholder, except for applicable requirements, if any, of the
Exchange Act, and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not prevent or
delay the performance by the Stockholder of his, her or its obligations under this Agreement
in any material respect.
6. Irrevocable Proxy. Subject to the last sentence of this Section 6, by
execution and delivery of this Agreement, the Stockholder does hereby appoint Parent, with full
power of substitution and resubstitution, as the Stockholders true and lawful attorney and
irrevocable proxy, to the fullest extent of the Stockholders rights with respect to the Shares, to
vote each of the Shares solely with respect to the matters set forth
in Section 1 hereof. The Stockholder intends this proxy to be irrevocable and coupled with an
interest hereunder until the Expiration Date, at which time this irrevocable proxy shall
automatically terminate. Notwithstanding anything to the contrary provided herein, this proxy
shall be effective only if the Stockholder (A) fails to appear or otherwise fails to cause the
Shares to be counted as present for purposes of calculating a quorum at a meeting of stockholders
duly called for the purposes set forth in Section 1, or (B) fails to vote the Shares in accordance
with Section 1, in each case at least forty-eight (48) hours prior to the date of the applicable
stockholders meeting. The Stockholder hereby revokes any proxies previously granted by the
Stockholder with respect to the Shares, and represents to Parent that none of such
previously-granted proxies are irrevocable.
7. No Solicitation. From and after the date hereof until the Expiration Date,
Stockholder shall not, nor shall it permit any of its Subsidiaries or controlled or controlling
Affiliates (or any controlled Affiliate of any controlling Affiliate) to, nor shall it authorize
any officer, director, member or representative of, Stockholder or any of its Subsidiaries or
controlled or controlling Affiliates (or any controlled Affiliate of any controlling Affiliate) to,
(a) solicit, initiate or knowingly encourage (including by way of furnishing non-public information
or other assistance), or take other action to facilitate, any inquiries, or make any proposal that
constitutes, or may reasonably be likely to lead to, any Takeover Proposal (other than the Merger
Agreement), (b) participate in any discussions or negotiations regarding, or that may reasonably be
likely to lead to, any Takeover Proposal (other than the Merger Agreement), (c) enter into any
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agreement with respect to a Takeover Proposal (other than the Merger Agreement), (d) solicit
proxies, become a participant in a solicitation or take any action to facilitate a
solicitation (as such terms are defined in Regulation 14A under the
Exchange Act) with respect to any Takeover Proposal (other than the Merger Agreement), (e)
initiate a stockholders vote or action by consent of the Companys stockholders with respect to
any Takeover Proposal (other than the Merger Agreement), or (f) become a member of a group (as
such term is used in Rule 13d-5(b)(1) of the Exchange Act) with respect to any voting securities of
the Company that takes any action in support of any Takeover Proposal (other than the Merger
Agreement).
8. Waiver of Appraisal Rights. The Stockholder hereby waives, and agrees not to
exercise or assert, any appraisal rights under Section 262 of the DGCL in connection with the
Merger.
9. No Limitation on Discretion as Fiduciary. Notwithstanding anything herein to the
contrary, the covenants and agreements set forth herein shall not prevent the Stockholder, any of
its Affiliates, or any of their respective officers, directors, employees or representatives, (a)
if the Stockholder, any of its Affiliates or any of their respective officers, directors, employees
or representatives is serving on the Board of Directors of the Company, from exercising his, her or
its duties and obligations as a director of the Company or otherwise taking any action, subject to
the applicable provisions of the Merger Agreement, while acting in such capacity as a director of
the Company, or (b) if the Stockholder, any of its Affiliates, or any of their respective officers,
directors, employees or representatives is serving as a trustee or fiduciary of any ERISA plan or
trust, from exercising his, her or its duties and obligations as a trustee or fiduciary of such
ERISA plan or trust.
10. Specific Enforcement. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement was not performed in accordance with the terms
hereof or was otherwise breached and that money damages or other legal remedies would not be an
adequate remedy for any such damages. It is accordingly agreed that the parties shall be entitled
to specific relief hereunder,
including, without limitation, an injunction or injunctions to prevent and enjoin breaches of
the provisions of this Agreement and to enforce specifically the terms and provisions hereof, in
any state or federal court in any competent jurisdiction, in addition to any other remedy to which
they may be entitled at law or in equity. Any requirements for the securing or posting of any bond
with respect to any such remedy are hereby waived.
11. Further Assurances. The Stockholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further consents, documents and
other instruments as Parent may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement. Parent represents and warrants to the Stockholder that
the voting agreements between Parent and other stockholders of the Company entered into in
connection with the Merger are not materially more favorable to such stockholders than the terms of
this Agreement, other than with respect to the transfer restrictions set forth in Section 4 hereof
and matters relating to reimbursement of Stockholder expenses.
12. Notice. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or sent by overnight courier (providing proof of
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delivery) to Parent in accordance with Section 8.02 of the Merger Agreement and to each Stockholder
at its address set forth on Schedule 1 attached hereto (or at such other address for a
party as shall be specified by like notice). The Stockholder shall be required to give Parent
prompt (and in any event within forty-eight hours) written notice of any breaches of any
representation, warranty, covenant or agreement of the Stockholder set forth in Sections 3, 4 or 5
of this Agreement.
13. Severability. If any term or other provision of this Agreement is determined to
be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
14. Binding Effect and Assignment. All of the covenants and agreements contained in
this Agreement shall be binding upon, and inure to the benefit of, the respective parties and their
permitted successors, assigns, heirs, executors, administrators and other legal representatives, as
the case may be. This Agreement may not be assigned by any party hereto without the prior written
consent of the other party hereto; provided, however, that, notwithstanding the
foregoing, Parent may assign its rights and obligations under this Agreement to any Subsidiary
wholly owned by it.
15. No Waivers. No waivers of any breach of this Agreement extended by Parent to the
Stockholder shall be construed as a waiver of any rights or remedies of Parent with respect to any
other stockholder of the Company who has executed an agreement substantially in the form of this
Agreement with respect to Shares held or subsequently held by such stockholder or with respect to
any subsequent breach of the Stockholder or any other such stockholder of the Company. No waiver
of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by
any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by
such party.
16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard to its rules of
conflict of laws. The parties hereto hereby irrevocably and unconditionally consent to and submit
to the exclusive jurisdiction of the courts of the State of Delaware and of the United States of
America located in such state (the Delaware Courts) for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agree not to commence any
litigation relating thereto except in such courts), waive any objection to the laying of venue of
any such litigation in the Delaware Courts and agree not to plead or claim in any Delaware Court
that such litigation brought therein has been brought in any inconvenient forum.
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17. Waiver of Jury Trial. The parties hereto hereby waive any right to trial by jury
with respect to any action or proceeding related to or arising out of this Agreement, any document
executed in connection herewith and the matters contemplated hereby and thereby.
18. No Agreement Until Executed. Irrespective of negotiations among the parties or
the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to
evidence a contract, agreement, arrangement or understanding between the parties hereto unless and
until (a) the Board of Directors of the Company has approved, for purposes of any applicable
anti-takeover laws and regulations, and any applicable provision of the Companys certificate of
incorporation and bylaws, and for purposes of its Rights Agreement, the transactions contemplated
by the Merger Agreement and this Agreement, (b) the Merger Agreement is executed by all parties
thereto, and (c) this Agreement is executed by all parties hereto.
19. Entire Agreement; Amendment. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter hereof and contains
the entire agreement among the parties with respect to the subject matter hereof. This Agreement
may not be amended, supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto.
20. Effect of Headings. The section headings herein are for convenience only and
shall not affect the construction of interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile or other electronic transmission), each of which will be deemed an original
but all of which together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED as of the date first above written.
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CAMDEN PARTNERS STRATEGIC FUND II-A, L.P. |
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By: Camden Partners Strategic II, LLC, its general partner |
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Name:
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/s/ David L. Warnock
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Title:
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Managing Partner |
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CAMDEN PARTNERS STRATEGIC FUND II-B, L.P. |
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By: Camden Partners Strategic II, LLC, its general partner |
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Name:
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/s/ David L. Warnock
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Title:
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Managing Partner |
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ACADEMIC ACQUISITION CORP. |
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By:
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/s/ Carter Harned
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Name:
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Carter Harned |
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Title:
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EVP, Treasurer and Secretary |
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[Signature Page to Voting Agreement]
SCHEDULE 1
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Stockholder |
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Shares |
CAMDEN PARTNERS STRATEGIC FUND II-A, L.P. |
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1,669,206 |
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CAMDEN PARTNERS STRATEGIC FUND II-B, L.P. |
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99,007 |
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The address for the Stockholder is:
500 East Pratt Street
12th Floor
Baltimore, MD 21202