Exhibit
10.11.10


 


SUBSCRIPTION
AGREEMENT


 


This Subscription Agreement
(this “Agreement”),
effective as of November 15, 2007, is made and entered into by and between
Education Media, Inc., a Delaware corporation (the “Company”), and Richard
A. Kay (“Buyer”).


 


RECITALS:


 


WHEREAS, Buyer wishes to purchase from the Company 67,500
shares of the Company’s Common Stock, par value $0.0001 per share (the “Shares”); and


 


WHEREAS, the Buyer wishes to purchase the Shares
from the Company and the Company wishes to sell the Shares to the Buyer on the
terms and subject to the conditions set forth in this Agreement.


 


AGREEMENT:


 


NOW,
THEREFORE, in
consideration of the premises, representations, warranties and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:


 


ARTICLE I.


DEFINITIONS


 


The terms defined in this Article I shall have for all purposes
of this Agreement the respective meanings set forth below:


 


“Buyer” shall have the
meaning set forth in the preamble to this Agreement.


 


“Closing” shall have
the meaning set forth in Section 2.3
of this Agreement.


 


“Closing Date” shall
have the meaning set forth in Section 2.3
of this Agreement.


 


“Common Stock” shall
mean the Common Stock, $0.0001 par value per share, of the Company.


 


“Company” shall have
the meaning set forth in the preamble to this Agreement.


 


“Consent” means any
consent, approval, notification, waiver, or other similar action that is
necessary or convenient.


 


“Governmental Body”
shall mean any legislature, agency, bureau, branch, department, division,
commission, court, tribunal or other similar recognized organization or body of
any federal, state, county, municipal, local or foreign government or other
similar recognized organization or body exercising similar powers or authority.


 


“Law” shall mean any
law (statutory, common or otherwise), constitution, ordinance, rule,
regulation, executive order or other similar authority enacted, adopted,
promulgated or applied by any Governmental Body.


 


“Lien” shall mean a
mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance,
charge, restriction, lien (statutory or otherwise, including, without
limitation, any lien for taxes), security interest, preference, participation
interest, priority or security agreement or preferential arrangement of any
kind or nature whatsoever, including, without limitation, any conditional sale
or other title retention agreement, any financing lease having substantially
the same economic effect as any of the foregoing and the filing of any document
under the law 


 

















 


of any applicable jurisdiction to evidence any of
the foregoing, other than (i) statutory, mechanics’ or other Liens
incurred in the Company’s ordinary course of business or (ii) Liens for
taxes incurred but not yet due.


 


“Order” shall mean an
order, ruling, decision, award, judgment, injunction or other similar
determination or finding by, before or under the supervision of any
Governmental Body or arbitrator.


 


“Permit” shall mean a
permit, license, certificate, waiver, notice or similar authorization to which
Buyer is a party or by which Buyer is bound or any of its assets are subject.


 


“Purchase Price” shall
have the meaning set forth in Section 2.2
of this Agreement.


 


“SEC” shall mean the
United States Securities and Exchange Commission.


 


“Securities Act” shall
mean the United States Securities Act of 1933, as amended, or any successor
federal statute, and the applicable rules and regulations promulgated and
in effect from time to time thereunder.


 


“Shares” shall have
the meaning set forth in the recitals to this Agreement.


 


ARTICLE II


PURCHASE OF
SECURITIES


 


Section 2.1 Purchase and Sale of Shares. Subject to the
terms and conditions hereof and in reliance upon the representations and
warranties of the parties contained or incorporated by reference herein,
simultaneous with the execution hereof, the Company shall sell and deliver to
Buyer, and Buyer shall purchase from the Company, the Shares, in consideration
of the payment of the Purchase Price noted herein.


 


Section 2.2 Purchase Price. As payment in full for the Shares
being purchased under this Agreement and against delivery of the certificates
therefor, simultaneous with the execution hereof, Buyer shall pay $675 to the
Company by wire transfer of immediately available funds or by such other method
as may be reasonably acceptable to the Company, (the “Purchase Price”).


 


Section 2.3 Closing. The closing of the purchase and
sale of the Shares (the “Closing”)
shall be deemed to occur on the date of this Agreement (“Closing Date”) at the
offices of Kalbian Hagerty LLP, 888 17th Street NW, Suite 1000,
Washington, DC 20006, or such other place as may be agreed upon by the parties
hereto.


 


Section 2.4 Closing Deliveries. All actions taken at
the Closing shall be deemed to have been taken simultaneously.


 


(a)   Buyer
Deliveries. At the Closing Buyer shall deliver to the Company the
Purchase Price.


 


(b)   Company
Deliveries. At the Closing, or within a reasonable time after the
Closing but in no event later than thirty (30) days after Closing, the
Company shall place the shares in an escrow account subject to restrictions
until six (6) months after the Company completes a business combination.


 


Section 2.5 Further Assurances. The parties hereto
shall execute and deliver such additional documents and take such additional
actions as any party reasonably may deem to be practical and necessary in order
to consummate the transactions contemplated by this Agreement.


 

















 


ARTICLE III


REPRESENTATIONS
AND WARRANTIES OF THE BUYER


 


Buyer represents and
warrants to the Company that the statements contained in this ARTICLE III are correct and complete as of
the date of this Agreement.


 


Section 3.1 Investment Representations.


 


(a)   Buyer is an “accredited investor” as defined in Rule 501
of Regulation D under the Securities Act.


 


(b)   Buyer has received, has thoroughly read, is
familiar with and understands the contents of this Agreement.


 


(c)   Buyer hereby acknowledges that an investment in
the Shares involves certain significant risks. Buyer acknowledges that there is
a substantial risk that it will lose all or a portion of its investment and
that it is financially capable of bearing the risk of such investment for an
indefinite period of time. Buyer has no need for liquidity in its investment in
the Shares for the foreseeable future and is able to bear the risk of that
investment for an indefinite period. Buyer understands that there presently is
no public market for the Shares and none is anticipated to develop in the
foreseeable future. Buyer’s present financial condition is such that Buyer is
under no present or contemplated future need to dispose of any portion of the Shares
subscribed for hereby to satisfy any existing or contemplated undertaking, need
or indebtedness. Buyer’s overall commitment to investments which are not
readily marketable is not disproportionate to its net worth and the investment
in the Company will not cause such overall commitment to become excessive.


 


(d)   Buyer acknowledges that the Shares have not been
and will not be registered under the Securities Act, or any state securities
act, and are being sold on the basis of exemptions from registration under the
Securities Act and applicable state securities acts, except those state
securities acts that require registration of the Shares thereunder. Reliance on
such exemptions, where applicable, is predicated in part on the accuracy of the
Buyer’s representations and warranties set forth herein. Buyer acknowledges and
hereby agrees that the Shares will not be transferable under any circumstances
unless Buyer either registers the Shares in accordance with federal and state
securities laws or finds and complies with an available exemption under such
laws. Accordingly, Buyer hereby acknowledges that there can be no assurance
that it will be able to liquidate its investment in the Company.


 


(e)   There are substantial risk factors pertaining to
an investment in the Company. Buyer acknowledges that it has read the
information set forth above regarding certain of such risks and is familiar
with the nature and scope of all such risks, including, without limitation,
risks arising from the fact that the Company is an entity with limited
operating history and financial resources; and Buyer is fully able to bear the
economic risks of such investment for an indefinite period, and can afford a
complete loss thereof.


 


(f)   Buyer has been given the opportunity to (i) ask
questions of and receive answers from the Company and its designated
representatives concerning the terms and conditions of the offering, the
Company and the business and financial condition of the Company and (ii) obtain
any additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to assist Buyer in evaluating
the advisability of the purchase of the Shares and an investment in the
Company. Buyer further represents and warrants that, prior to signing this Agreement,
it has asked such questions, received such answers and obtained such
information as it has deemed necessary or advisable to evaluate the merits and
risks of the purchase of the Shares and an investment in the Company. Buyer is
not relying on any oral representation made by any person as to the Company or
its operations, financial condition or prospects.


 


(g)   Buyer understands that no federal, state or other
governmental authority has made any recommendation, findings or determination
relating to the merits of an investment in the Company.


 


(h)  
Buyer agrees that the Shares will be placed in an escrow account
described below and are subject to transfer restrictions until six months after
the company completes a business combination.


 

















 


(i)   Buyer agrees to vote the
initial shares in the same manner as a majority of the public stockholders in
connection with the vote required to approve the Company’s initial business
combination.


 


(j)   Buyer understands and
acknowledges that he will not be able to exercise conversion rights (as
described below) with respect to the initial shares.


 


(k)   Buyer agrees to waive his
rights to participate in any liquidation distribution with respect to the
initial shares if we fail to consummate a business combination.


 


ARTICLE IV


VOTING OF
SHARES


 


Buyer agrees to vote the Shares owned by him acquired
hereby in accordance with the majority of the shares of common stock voted by
the public stockholders with respect to any business combination. Any shares
acquired in this offering or in the aftermarket by Buyer and/or his designees
will be voted in favor of the business combination. Accordingly, our existing
stockholders will not be able to exercise redemption rights for shares acquired
immediately prior to this offering (but will be able to exercise redemption
rights with respect to  shares acquired
in this offering or in the aftermarket) with respect to a potential business
combination.


 


ARTICLE V


REDEMPTION
RIGHTS


 


Buyer understands and acknowledges that if the
Company’s initial business combination is approved and completed, only public
stockholders voting against such business combination will be entitled to
convert their stock into a pro rata share of the trust account. Buyer agrees to
vote any shares acquired by him, whether acquired hereby, in a subsequent
offering of the Company’s securities or the aftermarket, in favor of a business
combination and is not entitled to redemption rights with respect to any such
shares if the business combination is approved and completed.


 


ARTICLE VI


LIQUIDATION
RIGHTS AND PREFERENCES


 


Buyer acknowledges and
agrees that in the event the Company has not consummated a business combination
within twenty-four months from the date of the offering of its securities, its corporate existence will cease by operation of law and
it will promptly distribute only to its public stockholders the amount in its
trust account (including any accrued interest, after taxes payable on such
interest) plus any remaining net assets. Buyer further agrees to waive his
rights to participate in any liquidation as part of the Company’s plan of
dissolution and liquidation with respect to those shares of common stock
acquired by him prior to the offering of the Company’s securities. Buyer will
participate in any liquidation distribution with respect to any shares of
common stock acquired as part of the offering of the Company’s securities or in
the aftermarket.


 


ARTICLE VII


ESCROW OF
SECURITIES


 


Buyer agrees he will place
the shares owned before the offering of the Company’s securities into an escrow
account maintained by Continental Stock Transfer & Trust Company,
acting as escrow agent, on such date as the Company shall file a registration
statement on Form S-1 (“Form S-1”) with the SEC. Subject to certain
limited exceptions, such as transfers to family members and trusts for estate
planning purposes and upon death while remaining subject to the escrow
agreement, these shares will not be transferable and will not be released from
escrow until six (6) months after consummation of a business combination,
unless the Company consummates a transaction after the consummation of the
initial business combination that results in all of its stockholders having the
right to exchange their shares of common stock for cash, securities or other
property. If the Company is forced to dissolve and liquidate, these shares will
be cancelled. Additionally, on the date on which the Form S-1 is filed
with


 

















 


the SEC, warrants purchased by Buyer will be placed
into the escrow account maintained by Continental Stock Transfer &
Trust Company, acting as escrow agent. Subject to certain limited exceptions, said
warrants will not be transferable and will not be released from escrow until
the 90th day after the completion of the Company’s business combination


 


ARTICLE
VIII


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


 


Section 8.1 Organization and Good Standing. The Company
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware.


 


Section 8.2 Power and Authority; Enforceability. This
Agreement constitutes the legal, valid, and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The Company has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder. The Company has taken all actions necessary to
authorize the execution and delivery of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions contemplated
hereby. This Agreement has been duly authorized, executed, and delivered by,
and is enforceable against, the Company.


 


Section 8.3 No Violation; Necessary Approvals. Neither
the execution and delivery of this Agreement by the Company, nor the
consummation or performance by the Company of any of transactions contemplated
hereby, will: (a) with or without notice or lapse of time, constitute,
create or result in a breach or violation of, default under, loss of benefit or
right under or acceleration of performance of any obligation required under any
Law, Order, Contract or Permit to which the Company is a party or by which it
is bound or any of its assets are subject, or any provision of the Company’s
organizational documents as in effect on the Closing Date, (b) result in
the imposition of any lien, claim or encumbrance upon any assets owned by the
Company; (c) require any Consent under any Contract or organizational
document to which the Company is a party or by which it is bound; or (d) require
any Permit under any Law or Order other than (i) required filings, if any,
with the SEC and (ii) notifications or other filings with state or federal
regulatory agencies after the Closing that are necessary or convenient and do
not require approval of the agency as a condition to the validity of the
transactions contemplated hereunder; or (e) trigger any rights of first
refusal, preferential purchase or similar rights with respect to any of the Shares.


 


Section 8.4 Authorization of the Shares. The Shares
have been duly authorized and, when issued in accordance with this Agreement,
the Shares will be duly and validly issued, fully paid and non-assessable
shares of Common Stock and will be free and clear of all Liens and claims,
other than restrictions on transfer imposed by the Securities Act and
applicable state securities laws.


 


ARTICLE IX


MISCELLANEOUS


 


Section 9.1 Entire Agreement. This Agreement, together
with the certificates, documents, instruments and writings that are delivered
pursuant hereto, constitutes the entire agreement and understanding of the
parties hereto in respect of its subject matter and supersedes all prior
understandings, agreements, or representations by or among the parties hereto,
written or oral, to the extent they relate in any way to the subject matter hereof
or the transactions contemplated hereby.


 


Section 9.2 Successors. All of the terms, agreements,
covenants, representations, warranties, and conditions of this Agreement are
binding upon, and inure to the benefit of and are enforceable by, the parties
hereto and their respective successors.


 


Section 9.3 Assignments. Except as otherwise provided
herein, no party hereto may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other party. Any purported assignment in violation of this Section 9.3 shall be void and
ineffectual and shall not operate to transfer or assign any interest or title
to the purported assignee.


 

















 


Section 9.4 Waiver of Jury Trial. THE PARTIES HERETO
EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO JURY TRIAL OF ANY DISPUTE
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS RELATING
HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL ACTIONS THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS,
INCLUDING, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THE PARTIES HERETO EACH ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP AND THAT
THEY WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH
PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING HERETO. IN THE EVENT OF AN ACTION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY A COURT.


 


Section 9.5 Counterparts. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original
but all of which together will constitute one and the same instrument.


 


Section 9.6 Headings. The article and section headings
contained in this Agreement are inserted for convenience only and will not
affect in any way the meaning or interpretation of this Agreement.


 


Section 9.7 Governing Law. This Agreement, the entire
relationship of the parties hereto, and any litigation between the parties
(whether grounded in contract, tort, statute, law or equity) shall be governed
by, construed in accordance with, and interpreted pursuant to the laws of the
State of Delaware, without giving effect to its choice of laws principles.


 


Section 9.8 Amendments. This Agreement may not be
amended, modified or waived as to any particular provision, except by a written
instrument executed by all parties hereto.


 


Section 9.9 Severability. The provisions of this
Agreement will be deemed severable and the invalidity or unenforceability of
any provision will not affect the validity or enforceability of the other
provisions hereof; provided that if any provision of this Agreement, as applied
to any party hereto or to any circumstance, is adjudged by a Governmental Body,
arbitrator, or mediator not to be enforceable in accordance with its terms, the
parties hereto agree that the Governmental Body, arbitrator, or mediator making
such determination will have the power to modify the provision in a manner
consistent with its objectives such that it is enforceable, and/or to delete
specific words or phrases, and in its reduced form, such provision will then be
enforceable and will be enforced.


 


Section 9.10 Expenses. Except as otherwise expressly
provided in this Agreement, each party hereto will bear its own costs and
expenses incurred in connection with the preparation, execution and performance
of this Agreement and the consummation of the transactions contemplated hereby,
including all fees and expenses of agents, representatives, financial advisors,
legal counsel and accountants.


 


Section 9.11 Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement will
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof will arise favoring or disfavoring any party hereto because of
the authorship of any provision of this Agreement. Any reference to any
federal, state, local, or foreign Law will be deemed also to refer to Law as
amended and all rules and regulations promulgated thereunder, unless the
context requires otherwise. The words “include,”
“includes,” and “including” will be deemed to be followed
by “without limitation.” Pronouns
in masculine, feminine, and neuter genders will be construed to include any
other gender, and words in the singular form will be construed to include the
plural and vice versa,


 

















 


unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import
refer to this Agreement as a whole and not to any particular subdivision unless
expressly so limited. The parties hereto intend that each representation,
warranty, and covenant contained herein will have independent significance. If
any party hereto has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which such party hereto has
not breached will not detract from or mitigate the fact that such party hereto
is in breach of the first representation, warranty, or covenant.


 


Section 9.12 Waiver. No waiver by any party hereto of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, may be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising because of any prior or subsequent
occurrence.


 


IN WITNESS
WHEREOF, the
undersigned have executed this Agreement to be effective as of the date first
set forth above.


 


	
   

  	
  EDUCATION MEDIA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter A. Kirsch

  	
   

  
	
   

  	
  Name: Peter A. Kirsch

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RICHARD A. KAY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Richard A. Kay