exv10w33





Exhibit
10.33



AGREEMENT




     This Agreement (this “Agreement”) is entered into as of July 24, 2009, by and between
VSS Fund Management LLC (“VSS LLC”) and Cambium-Voyager Holdings, Inc., a Delaware
corporation (the “Company”).



     WHEREAS, VSS LLC is a private equity and mezzanine capital fund management company, and as of
the date hereof one of its investment funds owns all of the issued and outstanding shares of the
Company’s outstanding common stock, $.001 par value per share; and



     WHEREAS, the Company desires to enter into this Agreement to provide for the payment to VSS of
certain consulting fees as set forth in this Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein made and
intending to be legally bound, the parties hereto agree as follows:



          1. Consulting Fee. In each instance after the date hereof that an additional equity
investment is made in the Company or any of its subsidiaries (regardless of whether such investment
is through an underwritten offering or private placement of securities of the Company or any of its
subsidiaries) and in each instance after the date hereof that the Company consummates any other
equity or equity-linked financing, debt financing (including without limitation, bank, mezzanine,
structured capital or similar institutional debt financing), or any reorganization,
recapitalization, refinancing, reclassification, rights offering, or other similar transaction, and
in each instance that the Company or any of is subsidiaries obtains debt financing from any entity,
VSS LLC, or its designee, shall be entitled to a fee from the Company payable at the time of any
such investment, financing or transaction in an aggregate amount of 1.0% of the gross proceeds of
such investment, financing or transaction. Upon each acquisition or disposition of any business or
entity by the Company or any of its subsidiaries (including without limitation any transaction
involving the acquisition of or a disposition to another portfolio company of VSS LLC, but
excluding transactions where the only parties thereto consist of the Company and its subsidiaries),
the Company shall pay VSS LLC, or its designee, a fee in an amount equal to 1.0% of the enterprise
value of that business or entity, as reasonably determined by VSS LLC, upon consummation of such
acquisition or disposition. The Company shall promptly reimburse VSS LLC, following notice from
VSS LLC thereof, for all reasonable out-of-pocket fees and expenses incurred by it in performing
the aforementioned services for or on behalf of the Company, including, without limitation, legal,
financial or tax advisor fees, and travel, hotel and meal expenses incurred and any fees and
expenses relating to any U.S. Securities and Exchange Commission, NASDAQ or other regulatory
compliance filings. The right to fees and expenses contemplated in this Section 1 shall terminate
upon the earlier to occur of: (i) the date upon which funds managed by VSS LLC collectively cease
to “beneficially own” (as determined in accordance with Rule 13d-3 of the Securities Exchanges Act
of 1934, as amended) at least 10% of the issued and outstanding shares of Common Stock of the
Company, and (ii) unless renewed by the audit committee of the Company’s board of directors,
January 1, 2015. For the avoidance of doubt, no fees or expenses shall be payable to VSS under
this Section 1 to the extent VSS LLC receives a fee pursuant to that certain Amended and Restated
Limited Liability Company Agreement of VSS-Cambium Holdings, LLC, dated as of April 12, 2007, as
amended.




          2. Indemnification. The Company agrees that in the event VSS LLC or any of its
officers, managers, members, partners, employees, agents, affiliates or controlling persons, if any
(each, including VSS LLC, an “Indemnified Person”), become involved in any capacity
(whether or not a party) in any action, claim, proceeding or investigation (including any formal or
informal regulatory inquiry, any securityholder action or claim or any action brought by or in the
right of the Company) related to or arising out of VSS LLC’s engagement hereunder, the Company will
promptly upon demand advance to




 









 




such Indemnified Person, or to the extent funds have already been expended, reimburse such
Indemnified Person for, its legal and other expenses as and when they are to be incurred or are
incurred. In addition, the Company will indemnify and hold harmless each Indemnified Person from
and against, and no Indemnified Person shall have any liability (whether direct or indirect, in
contract tort or otherwise) to the Company or any of its securityholders or creditors for, any
losses, claims, damages, liabilities or expenses (including, without limitation attorney’s fees and
expenses) related to or arising out of this Agreement, any services provided hereunder or any
transaction or proposed transaction related thereto, whether or not any pending or threatened
action, claim, proceeding or investigation giving rise to such losses, claims, damages, liabilities
or expenses is initiated or brought by or on behalf of the Company and whether or not in connection
with any action, claim, proceeding or investigation in which the Company or any Indemnified Person
is a party, except to the extent that any such loss, claim, damage, liability or expense is found
by a court of competent jurisdiction in a judgment that has become final to have resulted directly
and primarily from such Indemnified Person’s gross negligence or willful misconduct. If any fees
or expenses have been advanced or reimbursed to an Indemnified Person under this Section 2 and such
Indemnified Person is found, pursuant to a final non-appealable order of a court of competent
jurisdiction, to have acted with gross negligence or willful misconduct with respect to the matter
for which such fees or expenses were so advanced or reimbursed, then, such Indemnified Person shall
promptly return such fees and expenses to the Company.




          3. Entire Agreement. This Agreement, together with the other documents referenced
herein, constitutes the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter hereof, and is not
intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by VSS LLC and the Company,
provided, however, so long as funds managed by VSS LLC collectively “beneficially
own” (as determined in accordance with Rule 13d-3 of the Securities Exchanges Act of 1934, as
amended) at least 10% of the issued and outstanding shares of Common Stock of the Company or VSS
LLC has the right to designate a majority of the Company’s Board of Directors, any such
modification shall have been approved by the Audit Committee of the Company’s Board of Directors.




          4. Notices. Any notice or other communication under this Agreement shall be in
writing and shall be considered given when delivered in person or sent by facsimile or e-mail of a
Portable Document Format (PDF) file (with evidence confirming receipt of such facsimile or PDF
file), one Business Day after being sent by a major overnight courier, or five days after being
mailed by registered mail, return receipt requested, to the parties at the addresses set forth
below their names on the signature page hereto (or at such other address as a party may specify by
notice to the Company).




          5. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be performed in New
York.




          6. Submission to Jurisdiction. The courts of the State of New York in New York County
and the United States District Court for the Southern District of New York shall have jurisdiction
over the parties with respect to any dispute or controversy between them arising under or in
connection with this Agreement and, by execution and delivery of this Agreement, each of the
parties to this Agreement submits to the jurisdiction of those courts, including, but not limited
to, the in personam and subject matter jurisdiction of those courts, waives any objection to such
jurisdiction on the grounds of venue or forum non conveniens, the absence of in personam or subject
matter jurisdiction and any similar grounds, consents to service of process by mail and irrevocably
agrees to be bound by any judgment




 









 




rendered thereby in connection with this Agreement. These consents to jurisdiction shall not
be deemed to confer rights on any person or entity other than the parties to this Agreement.




          7. Severability. If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect and shall be enforceable to the maximum extent
permitted by law, and if any provision is inapplicable to any person or entity or circumstance, it
shall nevertheless remain applicable to all other persons, entities and circumstances.




          8. Headings. The headings in this Agreement are solely for the convenience of
reference and shall not affect its interpretation.




          9. Counterparts. This Agreement may be executed in separate counterparts, but such
counterparts taken together shall constitute one and the same instrument. Delivery of an executed
counterpart by facsimile or by e-mail of a PDF file shall be effective as delivery of an original
manually executed counterpart.




[Signatures on Next Page]




 









 





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



	 	 	 	 	 	 	 
	 	 	VSS FUND MANAGEMENT LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scott J. Troeller	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Scott J. Troeller	 	 
	 

	 	 	 	Title:	 	 
	 

	 	Address:
	 	350 Park Avenue	 	 
	 

	 	 	 	New York, New York 10022	 	 
	 
	 	 	 	 	 	 
	 	 	CAMBIUM-VOYAGER HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Scott J. Troeller	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Scott J. Troeller	 	 
	 

	 	 	 	Title: President	 	 
	 

	 	Address:
	 	350 Park Avenue	 	 
	 

	 	 	 	New York, New York 10022