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EXHIBIT 2.3
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AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
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This AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (this
"Amendment"), dated as of May 15, 2003, is made by and among Dominica
Management, Inc., a New York corporation (the "Company"), Leeds Equity
Partners III, L.P. ("Leeds"), J.W. Childs Associates, Inc. ("Childs" and
together with Leeds, the "Stockholder Representatives") and DeVry Inc., a
Delaware corporation ("Buyer").
Buyer, the Company, Ross University Services, Inc., a Delaware
corporation, Ross University Management, Inc., a St. Lucia corporation, and
each of the sellers identified therein (the "Sellers") have entered into a
Stock Purchase Agreement dated as of March 19, 2003 (as amended from time to
time pursuant to its terms, the "Purchase Agreement"). Except as otherwise
indicated herein, capitalized terms used in this Amendment have the same
meaning ascribed to such terms in the Purchase Agreement.
The parties to this Amendment entered into that certain Amendment
No. 1 to Stock Purchase Agreement, dated as of March 26, 2003.
Pursuant to Section 13.08 of the Purchase Agreement, the Company,
the Stockholder Representatives and Buyer desire to amend the Purchase
Agreement as provided in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Section 1.01(a). Section 1.01(a) of the
Purchase Agreement is hereby amended and restated to read as follows:
On the Closing Date and immediately prior to the
transactions described in clause (b) below, upon the
terms and subject to the conditions set forth in this
Agreement, Buyer shall cause Ross Acquisition
Company, L.L.C., a Delaware limited liability company
("RAC"), to sell, assign, transfer and convey to RUSI
1,000 shares of DelCo common stock, and, in exchange,
RUSI shall sell, assign, transfer and convey to RAC
all of the issued and outstanding capital stock of
RUMI. Buyer acknowledges that (i) 65% of such RUMI
capital stock is subject to a pledge in favor of Bank
of America to secure the obligations set forth on the
Indebtedness Schedule, and it is accepting such RUMI
capital stock subject to all obligations relating to
such pledge and, (ii) notwithstanding Section 4.03 or
any other provision of this Agreement, the transfer
of RUMI capital stock contemplated by this section
may give rise to a breach of or a default under such
obligations. Buyer shall not make, bring or assert
any action, suit or claim against any Seller or any
Stockholder Representative, whether for
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indemnification or otherwise, in connection with any
Losses arising in connection with any such default or
breach.
2. Amendment to Section 1.02(b). Section 1.02(b) of the
Purchase Agreement is hereby amended and restated to read as follows:
Immediately prior to the Closing, each Optionholder
shall exercise the ISOs held by such Optionholder in
their entirety and, at the time specified in Section
1.01(b)(i), shall sell, assign, transfer and convey
to Buyer, and Buyer shall purchase and acquire from
such Optionholder, all of the shares of capital stock
otherwise issuable to the Optionholder upon such
exercise (the "ISO Shares") free and clear of all
Liens other than applicable federal and state
securities law restrictions, against payment by Buyer
for the ISO Shares of an amount in cash equal to such
Optionholder's Common Share Proceeds applicable to
the ISO Shares. The amount to be paid at the Closing
to each such Optionholder with respect to the ISO
Shares will be an amount in cash equal to such
Optionholder's Closing Common Share Proceeds,
reduced, in the case of any Optionholder who
exercises an ISO without payment of the exercise
price, by the amount of the exercise price for all
shares of Common Stock issuable upon exercise of such
ISO. The Company shall not make any change to any
ISO after the date hereof which change would
constitute a material modification of the ISO (as
defined in Section 424(h) of the Code).
3. Amendment to Section 1.03(a)(iv). Section 1.03(a)(iv) of
the Purchase Agreement is hereby amended and restated to read as follows:
(iv) the aggregate exercise price for all shares of
Common Stock issuable upon exercise of Options that
are either cancelled at Closing or exercised
immediately prior to Closing,
4. Amendment to Section 1.03(b)(iv). Section 1.03(b)(iv) of
the Purchase Agreement is hereby amended and restated to read as follows:
(iv) the aggregate exercise price for all shares of
Common Stock issuable upon exercise of Options that
are either cancelled at Closing or exercised
immediately prior to Closing,
5. Amendment to Section 1.04(c). Section 1.04(c) of the
Purchase Agreement is hereby amended and restated to read as follows:
At the Closing, the Company shall receive, on behalf
of the Optionholders holding Nonqualified Options,
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payment by Buyer of an amount in cash equal to the
Aggregate Closing Option Proceeds in exchange for the
delivery by each Optionholder to the Company, for
cancellation, of all of such Optionholder's
outstanding Nonqualified Options and, upon such
delivery, such Nonqualified Options shall be deemed
canceled. Payment at the Closing in consideration of
cancellation of the Options shall be made by wire
transfer of immediately available funds on the
Closing Date to an account or accounts specified by
the Company at least two business days prior to the
Closing. Promptly after receipt of the Aggregate
Closing Option Proceeds, the Company shall distribute
to each Optionholder holding Nonqualified Options an
amount equal to such Optionholder's Closing Option
Proceeds by wire transfer of immediately available
funds to an account specified by each Optionholder at
least two days prior to the Closing.
6. Amendment to Section 1.04(d). Section 1.04(d) of the
Purchase Agreement is hereby amended and restated to read as follows:
At the Closing, the Company shall receive, on behalf
of the Optionholders who exercise ISOs immediately
prior to the Closing, payment by Buyer of the amount
in cash equal to the aggregate Closing Common Share
Proceeds payable pursuant to Section 1.02(b) in
exchange for the delivery by such Optionholder to
Buyer of appropriate transfer documents effecting the
transfer of such Optionholder's ISO shares. Payment
for the ISO Shares shall be made by wire transfer of
immediately available funds on the Closing Date to an
account or accounts specified by the Company at least
two days prior to the Closing. Promptly after
receipt of the amounts due pursuant to this Section
1.04(d), the Company shall distribute to each
Optionholder an amount equal to such Optionholder's
Closing Common Share Proceeds, reduced, in the case
of any Optionholder who exercises an ISO without
payment of the exercise price, by the amount of the
exercise price for all shares of Common Stock
issuable upon exercise of such ISO, by wire transfer
of immediately available funds to an account
specified by each Optionholder at least two days
prior to the Closing.
7. Amendment to Section 1.04(e). Section 1.04(e) of the
Purchase Agreement is hereby amended and restated to read as follows:
Notwithstanding anything to the contrary contained in
Sections 1.04(a)-(d), the Stockholder Representatives
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may retain a portion of the amounts delivered to them
pursuant to such sections and may direct the Company
prior to Closing to retain a portion of the amounts
delivered to it pursuant to such sections, in each
case to satisfy potential future obligations of the
Sellers (in the aggregate, the "Holdback Amount");
provided that the portion of the Holdback Amount
retained by the Stockholder Representatives or the
Company on behalf of each Seller shall be determined
pro rata according to each Seller's Common
Percentages; and provided further that, immediately
following the Closing, the Company shall pay the
Holdback Amount retained by it to the Stockholder
Representatives by wire transfer of immediately
available funds to an account specified by the
Stockholder Representatives. The Holdback Amount
shall be retained by the Stockholder Representatives
for such time as the Stockholder Representatives
shall determine in their sole discretion. Except for
the payment by the Company to the Stockholder
Representatives described above in this clause (e),
any amounts distributed from the Holdback Amount
shall be distributed to the Sellers pro rata based
upon their Common Percentages.
8. Addition of Section 1.04(h). A Section 1.04(h) is hereby
inserted into the Purchase Agreement, which states as follows:
(h) Notwithstanding Section 1.02 above, the Company
may cause any Nonqualified Option to be exercised
immediately prior to Closing, and, if any
Nonqualified Option is exercised immediately prior to
Closing, it shall be subject to the provisions
regarding ISOs in Sections 1.02(b) and 1.04(d)
(including with respect to the payment of Common
Share Proceeds and Closing Common Share Proceeds, and
reduction of payments in the case of any Nonqualified
Option exercised without payment of the exercise
price by the Optionholder), subject to any provisions
in the exercise agreement related to such Option.
9. Amendment to Article V. Article V of the Purchase
Agreement is hereby amended to replace each reference to "BarbCo" with "RAC".
10. Addition of Section 9.04(d). A Section 9.04(d) is hereby
inserted into the Purchase Agreement, which states as follows:
(d) Buyer hereby acknowledges that (i) Buyer has
requested that certain Optionholders exercise their
Options prior to Closing and (ii) none of the
Company, the Sellers or the Stockholder
Representatives have made any representations or
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warranties regarding whether any Option constitutes
an incentive stock option within the meaning of
Section 422(b) of the Code. Buyer is making its own
determination whether to withhold any amounts in
connection with the payments required to be made
pursuant to Sections 1.04(c) and 1.04(d) under any
provision of federal, state or local or foreign or
Tax law. Buyer shall not (i) make, bring or assert
any action, suit or claim against any Seller or any
Stockholder Representative in connection with any
Losses arising in connection with any such
determination by Buyer regarding such withholding,
including, without limitation, to the extent that
such determination is based on Buyer's assessment of
whether any Options constitute incentive stock
options within the meaning of Section 422(b) of the
Code or (ii) claim or assert, whether in a claim for
indemnification or otherwise, that the failure to
withhold amounts in connection with the exercise of
any Option as contemplated by Section 1.04(h) or from
the payments required to be made pursuant to Sections
1.04(c) and 1.04(d) constitutes or results in a
breach of any representations or covenants by the
Sellers or the Stockholder Representatives made
herein.
11. Buyer Acknowledgement. Buyer acknowledges that it timely
received the documentation required to be delivered by the Stockholder
Representatives pursuant to Section 1.05 of the Purchase Agreement.
12. Counterparts. This Amendment may be executed in multiple
counterparts (including by means of telecopied signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same instrument.
13. Governing Law. All matters relating to the interpretation,
construction, validity and enforcement of this Amendment shall be governed by
and construed in accordance with the domestic laws of the State of New York
without giving effect to any choice or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would cause
the application of laws of any jurisdiction other than the State of New York.
14. Consent. The undersigned parties hereby consent to this
Amendment pursuant to Section 13.08 of the Purchase Agreement and as such
consent may otherwise be required.
15. Limited Amendment. This Amendment is limited by its terms
and does not and shall not serve to amend or waive any provision of the
Purchase Agreement except as expressly provided for in this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment No.
2 to Stock Purchase Agreement as of the date first above written.
COMPANY:
DOMINICA MANAGEMENT, INC.
By: /s/John T. St. James
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Name: John T. St. James
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Its: V.P., Treasurer & Chief
Financial Officer
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STOCKHOLDER REPRESENTATIVES:
LEEDS EQUITY PARTNERS III, L.P.
By: Leeds Equity Associates, L.P.
Its: General Partner
By: Leeds Equity Management,
L.L.C.
Its: General Partner
By: /s/Jeffrey T. Leeds
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Name: Jeffrey T. Leeds
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Its: Member
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J.W. CHILDS ASSOCIATES, INC.
By: /s/Adam L. Suttin
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Name: Adam L. Suttin
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Its: Vice President
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BUYER:
DeVRY INC.
By: /s/Ronald L. Taylor
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Name: Ronald L. Taylor
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Its: President and Co-Chief
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Executive Officer
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