exv10w40






Exhibit 10.40




VOTING AGREEMENT




     THIS VOTING AGREEMENT is made and entered into as of this [___] day of November, 2009, by and
among Providence Equity Partners V L.P. (“PEP V”), Providence Equity Partners V-A L.P.
(“PEP V-A”, and together with PEP V, the “Providence Stockholders”), Cameron
Chalmers and David Muzzo (collectively, the “Founder Stockholders”) and MHT-SI, L.P.
(“MHT”, and together with the Founder Stockholders, the “Stockholders”), and
Archipelago Learning, Inc., a Delaware corporation (the “Company”).



RECITALS




     WHEREAS, the Company is proposing to sell shares of common stock of the Company, par value
$0.001 per share (the “Common Stock”), to the public in an initial public offering; and



     WHEREAS, subject to the terms and conditions herein, the Stockholders and the Company desire
to enter into this Voting Agreement to set forth their agreements and understandings with respect
to how certain shares of Common Stock to be held by them will be voted with respect to the election
of certain members of the Board of Directors (the “Board”).



     NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and
agreements of the parties hereto, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Voting Provisions Regarding Board of Directors. Each Stockholder agrees to vote,
or cause to be voted, at least fifty percent (50%) of all Common Stock owned by such Stockholder,
or over which such Stockholder has voting control, from time to time and at all times (such
percentage of Common Stock, the “Designated Voting Stock”), for the election of David
Phillips, Michael Powell, Peter Wilde, Brian Hall and Timothy McEwen to the Board at each annual or
special meeting of stockholders at which an election of directors is held or pursuant to any
written consent of the stockholders in which an election of directors is made.



     2. Remedies.



          2.1 Irrevocable Proxy. Each Stockholder hereby constitutes and appoints each of the
Providence Stockholders with full power of substitution, as the proxies of the Stockholder with
respect to the matters set forth herein, including without limitation, election of persons as
members of the Board in accordance with Section 1 hereto, and hereby authorizes each of
them to represent and to vote the Designated Voting Stock for the election of David Phillips,
Michael Powell, Peter Wilde, Brian Hall and Timothy McEwen to the Board, if and only if the
Stockholder (i) fails to vote or (ii) attempts to vote (whether by proxy, in person or by written
consent), in a manner that is inconsistent with the terms of this Voting Agreement. The proxy
granted pursuant to the immediately preceding sentence is given in consideration of the agreements
and covenants of the Company and the parties in connection with the transactions contemplated by
this Voting Agreement and, as such, is coupled with an interest and shall be irrevocable unless and
until this Voting Agreement terminates or expires pursuant to Section 3 hereof. Each
Stockholder hereby revokes any and all previous proxies with respect to such the



 









 






Designated Voting Stock and shall not hereafter, unless and until this Voting Agreement
terminates or expires pursuant to Section 3 hereof, purport to grant any other proxy or
power of attorney with respect to any of the Designated Voting Stock, deposit any of the Designated
Voting Stock into a voting trust or enter into any agreement (other than this Voting Agreement),
arrangement or understanding with any person, directly or indirectly, to vote, grant any proxy or
give instructions with respect to the voting of any of the Designated Voting Stock, in each case,
with respect to any of the matters set forth herein.




          2.2 Remedies Cumulative. All remedies, either under this Voting Agreement or by law
or otherwise afforded to any party, shall be cumulative and not alternative.




     3. Term. This Voting Agreement shall be effective as of the date hereof and shall
continue in effect until, and automatically terminate upon, the six-month anniversary of the date
hereof.



     4. General Provisions.



          4.1 Assignment; Benefit. The rights and obligations hereunder shall not be assignable
without the prior written consent of the other parties hereto. Any assignment of rights or
obligations in violation of this Section 4.1 shall be null and void. This Voting Agreement
shall be binding upon and shall inure to the benefit of the parties hereto, and their respective
successors and permitted assigns.




          4.2 Severability. In the event that any provision of this Voting Agreement shall be
invalid, illegal or unenforceable, such provision shall be construed by limiting it so as to be
valid, legal and enforceable to the maximum extent provided by law and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.




          4.3 Entire Agreement. This Voting Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof, and supersedes any prior agreement or
understanding among them with respect to the matters referred to herein. There are no
representations, warranties, promises, inducements, covenants or undertakings relating to Common
Stock, other than those expressly set forth or referred to herein.




          4.4 Amendment. This Voting Agreement may not be amended, modified, supplemented or
waived except by the unanimous written approval of the parties hereto.




          4.5 Waiver. No waiver of any breach of any of the terms of this Voting Agreement
shall be effective unless such waiver is expressly made in writing and executed and delivered by
the party against whom such waiver is claimed. Waiver by any party hereto of any breach or
default by any other party of any of the terms of this Voting Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the breach or default
waived. No waiver of any provision of this Voting Agreement shall be implied from any course of
dealing between the parties hereto or from any failure by any party to assert its or his or her
rights hereunder on any occasion or series of occasions.




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          4.6 Counterparts. This Voting Agreement may be executed in any number of separate
counterparts each of which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.




          4.7 Notices. Unless otherwise specified herein, all notices, consents, approvals,
reports, designations, requests, waivers, elections and other communications authorized or required
to be given pursuant to this Voting Agreement shall be in writing and shall be given, made or
delivered (and shall be deemed to have been duly given, made or delivered upon receipt) by personal
hand-delivery, by facsimile transmission, by electronic mail, by mailing the same in a sealed
envelope, registered first-class mail, postage prepaid, return receipt requested, or by air courier
guaranteeing overnight delivery, addressed to the Stockholder at the address set forth in the
records of the Company or at such other address as such Stockholder shall have furnished to the
Company in writing as the address to which notice are to be sent hereunder.




	 	 	 	 	 
	 	 	If to Company, to:
	 
	 	 	 	 
	 	 	Archipelago Learning, Inc.
	 	 	3400 Carlisle Street, Suite 345
	 	 	Dallas, Texas 75204
	 

	 	Attention:
	 	Tim McEwen
	 

	 	Telephone:
	 	(800) 419-3191
	 

	 	Facsimile:
	 	(866) 515-9145
	 

	 	Email:
	 	tim.mcewen@archlearning.com
	 
	 	 	 	 
	 	 	with a copy (which shall not constitute notice) to:
	 
	 	 	 	 
	 	 	Weil, Gotshal & Manges LLP
	 	 	100 Federal Street, 34th Floor
	 	 	Boston, Massachusetts 02110
	 

	 	Attention:
	 	Kevin J. Sullivan
	 

	 	Telephone:
	 	(617) 772-8348
	 

	 	Facsimile:
	 	(617) 772-8333
	 

	 	Email:
	 	kevin.sullivan@weil.com






          4.8 Governing Law. THIS VOTING AGREEMENT AND ANY CLAIM OR DISPUTE ARISING OUT OF OR
RELATED TO THIS VOTING AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) OR THE SUBJECT MATTER
HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS LAW.




          4.9 Jurisdiction. ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO
THIS VOTING AGREEMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK IN THE
BOROUGH OF MANHATTAN OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFORE) THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN



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DISTRICT OF NEW YORK, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH
COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. ANY ACTIONS OR PROCEEDINGS TO ENFORCE A
JUDGMENT ISSUED BY ONE OF THE FOREGOING COURTS MAY BE ENFORCED IN ANY JURISDICTION.




          4.10 Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT
BE WAIVED, EACH STOCKHOLDER WAIVES, AND COVENANTS THAT SUCH PARTY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY
ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS VOTING AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF ANY STOCKHOLDER OR THE COMPANY IN CONNECTION WITH ANY OF THE
ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR
OTHERWISE. The Company or any Stockholder may file an original counterpart or a copy of this
Section 4.10 with any court as written evidence of the consent of the Stockholders to the
waiver of their rights to trial by jury.




          4.11 Specific Performance. It is hereby agreed and acknowledged that it will be
impossible to measure the money damages that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them by this Voting Agreement and that, in the event of
any such failure, an aggrieved party will be irreparably damaged and will not have an adequate
remedy at law. Any such party shall, therefore, be entitled (in addition to any other remedy to
which such party may be entitled at law or in equity) to injunctive relief, including specific
performance, to enforce such obligations, without the posting of any bond, and if any action should
be brought in equity to enforce any of the provisions of this Voting Agreement, none of the parties
hereto shall raise the defense that there is an adequate remedy at law.




          4.12 No Third Party Beneficiaries. Except as otherwise provided herein, this Voting
Agreement is not intended to confer upon any Person, except for the parties hereto, any rights or
remedies hereunder.




[Signature Page Follows]




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          IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first
written above.




	 	 	 	 	 	 
	 	 	ARCHIPELAGO LEARNING, INC.	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	Name:

Title:
	 	Tim McEwen

Chief Executive Officer	 
	 
	 	 	 	 	 
	 	 	PROVIDENCE EQUITY PARTNERS V L.P.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	Providence Equity Partners GP V L.P.,	 
	 

	 	 	 	Its General Partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	Providence Equity Partners V L.L.C.,	 
	 

	 	 	 	Its General Partner	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	Name:	 	 	 
	 

	 	Title:	 	 	 
	 
	 	 	 	 	 
	 	 	PROVIDENCE EQUITY PARTNERS V-A L.P.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	Providence Equity Partners GP V L.P.,	 
	 

	 	 	 	Its General Partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	Providence Equity Partners V L.L.C.,	 
	 

	 	 	 	Its General Partner	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	Name:	 	 	 
	 

	 	Title:	 	 	 





[SIGNATURE PAGES – VOTING AGREEMENT]



 










 






	 	 	 	 	 
	 

	 	 
	 

	 	Cameron Chalmers
	 
	 	 	 	 
	 

	 	 
	 

	 	David Muzzo
	 
	 	 	 	 
	 	 	MHT-SI, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	MHT-SI GP, LLC,
	 

	 	 	 	Its General Partner
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	Shawn D. Terry
	 

	 	Title:
	 	Manager






[SIGNATURE PAGES – VOTING AGREEMENT]