EXHIBIT 10.17
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STOCK PURCHASE AGREEMENT
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among
LINCOLN TECHNICAL INSTITUTE, INC.
and the
SELLERS IDENTIFIED HEREIN
Dated as of March 30, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...............................................................................1
SECTION 1.02. Definitions.........................................................................................8
SECTION 1.03. Interpretation and Rules of Construction............................................................8
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares.....................................................................9
SECTION 2.02. Purchase Price......................................................................................9
SECTION 2.03. Closing 9
SECTION 2.04. Closing Deliveries by the Sellers...................................................................9
SECTION 2.05. Closing Deliveries by the Purchaser................................................................10
SECTION 2.06. Adjustment of Purchase Price.......................................................................10
SECTION 2.07. Escrow.............................................................................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
SECTION 3.01. Organization, Authority and Qualification..........................................................12
SECTION 3.02. No Subsidiaries....................................................................................12
SECTION 3.03. Capitalization.....................................................................................12
SECTION 3.04. Corporate Books and Records........................................................................13
SECTION 3.05. No Conflict........................................................................................13
SECTION 3.06. Required Consents..................................................................................13
SECTION 3.07. Financial Information; Books and Records...........................................................13
SECTION 3.08. Absence of Undisclosed Liabilities.................................................................14
SECTION 3.09. Receivables........................................................................................14
SECTION 3.10. Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions..................14
SECTION 3.11. Litigation.........................................................................................16
SECTION 3.12. Compliance with Laws...............................................................................17
SECTION 3.13. Environmental and Other Permits and Licenses; Related Matters......................................17
SECTION 3.14. Material Contracts.................................................................................18
SECTION 3.15. Intellectual Property..............................................................................19
SECTION 3.16. Real Property......................................................................................19
SECTION 3.17. Tangible Personal Property.........................................................................21
SECTION 3.18. Assets 21
SECTION 3.19. Employee Benefit Matters...........................................................................21
SECTION 3.20. Labor Matters......................................................................................23
SECTION 3.21. Key Employees......................................................................................23
SECTION 3.22. Student Lists......................................................................................23
SECTION 3.23. Certain Interests..................................................................................23
SECTION 3.24. Taxes..............................................................................................24
SECTION 3.25. Insurance..........................................................................................25
SECTION 3.26. Compliance with Title IV Programs..................................................................25
SECTION 3.27. Educational Approvals..............................................................................28
SECTION 3.28. Certain Business Practices.........................................................................28
SECTION 3.29. Brokers 28
SECTION 3.30. No Other Representations...........................................................................28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
SECTION 4.01. Organization, Authorization and Qualification......................................................29
SECTION 4.02. No Conflict........................................................................................29
SECTION 4.03. Required Consents..................................................................................29
SECTION 4.04. Litigation.........................................................................................30
SECTION 4.05. Financing..........................................................................................30
SECTION 4.06. Brokers............................................................................................30
SECTION 4.07. No Other Representations...........................................................................30
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Conduct of Business Prior to the Closing...........................................................30
SECTION 5.02. Access to Information..............................................................................30
SECTION 5.03. Confidentiality....................................................................................31
SECTION 5.04. Regulatory and Other Authorizations; Notices and Consents..........................................31
SECTION 5.05. Notice of Developments.............................................................................32
SECTION 5.06. No Solicitation or Negotiation.....................................................................32
SECTION 5.07. Use of Intellectual Property.......................................................................33
SECTION 5.08. Release of Indemnity Obligations...................................................................33
SECTION 5.09. Intercompany Arrangements..........................................................................33
SECTION 5.10. Payments on Behalf of Affiliates...................................................................33
SECTION 5.11. Employee Matters...................................................................................33
SECTION 5.12. Non-Competition....................................................................................33
SECTION 5.13. Payment Obligations................................................................................34
SECTION 5.14. Investments........................................................................................34
SECTION 5.15. Further Action.....................................................................................34
ARTICLE VI
TAX MATTERS
SECTION 6.01. Indemnity..........................................................................................34
SECTION 6.02. Returns and Payments...............................................................................35
SECTION 6.03. Refunds............................................................................................35
SECTION 6.04. Contests...........................................................................................35
SECTION 6.05. Time of Payment....................................................................................36
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SECTION 6.06. Tax Cooperation and Exchange of Information........................................................36
SECTION 6.07. Conveyance Taxes...................................................................................36
SECTION 6.08. Miscellaneous......................................................................................37
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Obligations of the Sellers...........................................................37
SECTION 7.02. Conditions to Obligations of the Purchaser.........................................................38
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Survival of Representations and Warranties.........................................................39
SECTION 8.02. Indemnification by the Sellers.....................................................................39
SECTION 8.03. Indemnification by the Purchaser...................................................................39
SECTION 8.04. Limits on Indemnification..........................................................................40
SECTION 8.05. Indemnification Procedures.........................................................................40
SECTION 8.06. Distributions from Escrow Account..................................................................41
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.01. Termination........................................................................................41
SECTION 9.02. Effect of Termination..............................................................................42
SECTION 9.03. Amendment..........................................................................................42
SECTION 9.04. Waiver.............................................................................................42
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Expenses..........................................................................................42
SECTION 10.02. Notices 42
SECTION 10.03. Public Announcements..............................................................................43
SECTION 10.04. Severability......................................................................................43
SECTION 10.05. Entire Agreement..................................................................................43
SECTION 10.06. Assignment........................................................................................43
SECTION 10.07. No Third Party Beneficiaries......................................................................43
SECTION 10.08. Specific Performance..............................................................................43
SECTION 10.09. Governing Law.....................................................................................44
SECTION 10.10. Waiver of Jury Trial..............................................................................44
SECTION 10.11. Headings..........................................................................................44
SECTION 10.12. Counterparts......................................................................................44
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STOCK PURCHASE AGREEMENT, dated as of March 30, 2006, among LINCOLN
TECHNICAL INSTITUTE, INC., a New Jersey corporation (the "PURCHASER"), and
RICHARD I. GOUSE, ANDREW T. GOUSE, individually and as Trustee of THE CAROLYN
BETH GOUSE IRREVOCABLE TRUST, SETH A. KURN AND STEVEN L. MELTZER (each, a
"SELLER" and collectively, the "SELLERS").
WHEREAS, the Sellers own all the issued and outstanding shares (the
"SHARES") of common stock, $0.01 par value per share (the "COMMON STOCK"), of
New England Institute of Technology at Palm Beach, Inc., a Florida corporation
(the "COMPANY");
WHEREAS, the Company has a principal business address at 2410 Metro
Centre Boulevard, West Palm Beach, FL 33407;
WHEREAS, the Company owns and operates a post-secondary educational
institution in Palm Beach County, Florida, with campuses located in the
Metrocenter Corporate Park of West Palm Beach and in the Australian Business
Park in Mangonia Park, that is engaged in the business of providing
post-secondary school educational services (the "BUSINESS");
WHEREAS, the Sellers wish to sell to the Purchaser, and the
Purchaser wishes to purchase from the Sellers, the Shares, upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and intending to be legally
bound, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. For purposes of this Agreement:
"ACCREDITING BODY" means any non-Government entity or body that has been
recognized by DOE as a reliable authority as to the quality of training offered
by "institutions of higher education," "proprietary institutions of higher
education" or "educational programs" (as those terms are defined by U.S. DOE)
under 34 C.F.R. Part 602 as promulgated by U.S. DOE, including but not limited
to ACICS.
"ACICS" means the Accrediting Council for Independent Colleges and
Schools.
"ACQUISITION DOCUMENTS" means this Agreement, the Ancillary Agreements,
and any certificate, Financial Statement, Interim Financial Statement, report or
other document delivered pursuant to this Agreement or the transactions
contemplated by this Agreement.
"ACTION" means any Claim, action, suit, arbitration, proceeding or
investigation by or before any Governmental Authority or Educational Agency.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"AGREEMENT" or "THIS AGREEMENT" means this Stock Purchase Agreement
between the parties hereto (including the Exhibits and Schedules hereto and the
Disclosure Schedule) and all amendments hereto made in accordance with the
provisions of Section 9.03.
"ANCILLARY AGREEMENTS" means the Escrow Agreement, the General Release
and the Transitional Consent Agreement.
"ASSETS" means the assets and properties of the Company, including the
Real Property.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in New York,
New York.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended through the Closing.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System, as updated through the Closing.
"CLAIMS" means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigations, proceedings, consent orders or consent agreements,
but excluding Educational Claims.
"CLOSING STATEMENT OF NET CURRENT ASSETS" means the statement of net
current assets (including the related notes and schedules thereto) of the
Company, dated as of the Closing and prepared pursuant to Section 2.06(b).
"CODE" means the Internal Revenue Code of 1986 as amended.
"COMPANY INTELLECTUAL PROPERTY" means Intellectual Property (including
the Company Marks and the Domain Names) owned by the Company.
"COMPANY IP AGREEMENTS" means (a) licenses of Company Intellectual
Property by the Company to any third party, (b) licenses of Intellectual
Property by any third party to the Company, (c) agreements between the Company
and any third party relating to the development or use of Intellectual Property,
the development or transmission of data, or the use, modification, framing,
linking, advertisement, or other practices with respect to Internet web sites,
and (d) consents, settlements, decrees, orders, injunctions, judgments or
rulings governing the use, validity or enforceability of Company Intellectual
Property.
"COMPANY MARKS" means the names "New England Institute of Technology at
Palm Beach, Inc.", "New England School of Technology at Palm Beach", "Florida
Culinary Institute", "FCI" and all design logos related to any of the foregoing
and all stylized versions thereof.
"COMPANY SOFTWARE" means all software (a) material to the operation of
the Business or (b) manufactured, distributed, sold, licensed or marketed by the
Company.
"CONFIDENTIALITY AGREEMENT" means the agreement dated January 17, 2006
between Stifel, Nicolaus & Company, Incorporated and the Purchaser.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly or as trustee, personal
representative or executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting
securities, as trustee, personal representative or executor, by contract, credit
arrangement or otherwise.
"CONVEYANCE TAXES" means all sales, use, value-added, transfer, stamp,
stock transfer, real property transfer or gains and similar Taxes and any
transfer, recording, registration and similar fees.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto,
dated as of the date hereof, delivered by the Sellers to the Purchaser in
connection with this Agreement.
"DOMAIN NAMES" means "floridaculinary.com" and "newenglandtech.com".
"EDUCATIONAL AGENCY" means any entity or organization, whether
governmental, government chartered, private or quasi-private, that engages in
granting or withholding Educational Approvals for, administers
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financial assistance to or for students of, or otherwise regulates, private
post-secondary schools in accordance with standards relating to performance,
operation, financial condition or academic standards of such schools, including
U.S. DOE, the United States Veterans Administration and state approving agencies
for veteran's education benefits, any agency that guarantees federal student
loans pursuant to 34 C.F.R. Part 682 Subpart D, any Accrediting Body and any
State Educational Agency.
"EDUCATIONAL APPROVAL" means any license, permit, consent, franchise,
approval, authorization, certificate, U.S. DOE Approval or accreditation issued
or required to be issued by an Educational Agency to the Institution or to any
campus operated by the Institution with respect to any aspect of the
Institution's operations subject to the oversight of such Educational Agency.
"EDUCATIONAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations, program reviews, audits,
proceedings, consent orders or consent agreements arising out of the operation
of the Institution or the application thereto of any Educational Law or with
respect to any Educational Approval required to be held by the Institution under
any Educational Law.
"EDUCATIONAL LAW" means any Law, regulation or binding standard issued
or administered by, or related to, any Educational Agency.
"ENCUMBRANCE" means any security interest, pledge, hypothecation,
mortgage, lien (including environmental and Tax liens), violation, charge,
lease, license, encumbrance, servient easement, adverse claim, reversion,
reverter, preferential arrangement or restrictive covenant, condition or
restriction of any kind, including any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"ENVIRONMENT" means surface waters, groundwaters, sediment, soil,
subsurface strata and outdoor or indoor ambient air.
"ENVIRONMENTAL CLAIMS" means any Claims relating to any Environmental
Law or any Environmental Permit, including (a) any and all Claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law and (b)
any and all Claims by any Person seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the Environment.
"ENVIRONMENTAL LAWS" means all Laws and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent
decree or judgment, relating to the Environment, health, safety, natural
resources or Hazardous Materials, including CERCLA; the Resource Conservation
and Recovery Act, 42 U.S.C. ss. 6901 ET SEQ.; the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 6901 ET SEQ.; the Clean Water Act, 33 U.S.C.
ss. 1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 ET SEQ.;
the Clean Air Act, 42 U.S.C. ss. 7401 ET SEQ.; the Safe Drinking Water Act, 42
U.S.C. ss. 300f ET SEQ.; the Atomic Energy Act, 42 U.S.C. ss. 2011 ET SEQ.; the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss. 136 et SEQ.;
and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. ss. 301 ET SEQ.
"ENVIRONMENTAL PERMITS" means all permits, approvals, identification
numbers, licenses and other authorizations required under or issued pursuant to
any applicable Environmental Law.
"ESCROW ACCOUNT" means the account established, designated and
maintained by the Escrow Agent pursuant to the terms of the Escrow Agreement.
"ESCROW AGENT" means LaSalle Bank National Association.
"ESCROW AMOUNT" means $3,500,000.
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"ESTIMATED CLOSING STATEMENT OF NET CURRENT ASSETS" means the statement
of net current assets (including the related notes and schedules thereto) of the
Company, dated as of the Closing and prepared and delivered pursuant to Section
2.06(a).
"EXCLUDED TAXES" means (a) all Income Taxes owed by any Seller for any
period; (b) all Taxes relating to the Company, the Assets or the Business for
any Pre-Closing Period; (c) all Taxes of any Seller, the Company or any other
Person by reason of being a member of a consolidated, combined, unitary or
affiliated group that includes the Company or any of its present or past
Affiliates prior to the Closing, by reason of a Tax sharing, Tax indemnity or
similar agreement entered into by any Seller, the Company or any of their
present or past Affiliates prior to the Closing (other than this Agreement) or
by reason of transferee or successor Liability arising in respect of a
transaction undertaken by any Seller, the Company or any of their present or
past Affiliates prior to the Closing; (d) Taxes imposed on Purchaser or any of
its Affiliates as a result of any breach of warranty or misrepresentation, or
breach of any covenant relating to Taxes; and (e) all Conveyance Taxes payable
in connection with the transactions contemplated by this Agreement.
"FINANCIAL ASSISTANCE" means any form of student financial assistance,
grants or loans, including Title IV Program funding, administered by any
Governmental Authority or Educational Agency.
"GAAP" means United States generally accepted accounting principles and
practices in effect from time to time applied consistently throughout the
periods involved.
"GAGAS" means generally accepted government auditing standards.
"GENERAL RELEASE" means the general release and discharge from the
Sellers referred to in Section 5.08 in the form attached hereto as Exhibit
1.01(a).
"GOVERNMENTAL AUTHORITY" means any United States federal, state, local,
or similar government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal, or judicial or arbitral body, but
excluding any Educational Agency.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
radioactive materials, asbestos-containing materials, mold, urea formaldehyde
foam insulation, transformers or other equipment that contain polychlorinated
biphenyls and radon gas; (b) any other chemicals, materials or substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance which is regulated by, or
with respect to which liability may be imposed under, any Environmental Law.
"HEA" means the Higher Education Act of 1965, 20 U.S.C. ss. 1001 ET
SEQ., as amended.
"INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness
of such Person, whether or not contingent, for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property or
services; (c) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property); (d) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases; (e) all
obligations, contingent or otherwise, of such Person under acceptance, Letter of
Credit or similar facilities; (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of such
Person or any warrants, rights or options to acquire such capital stock, valued,
in the case of redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) all
Indebtedness of others referred to in clauses (a) through (f) above guaranteed
directly or indirectly
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in any manner by such Person; and (h) all Indebtedness referred to in clauses
(a) through (f) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any
Encumbrance on property (including accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness.
"INDEMNIFIED PARTY" means a Purchaser Indemnified Party or a Seller
Indemnified Party, as the case may be.
"INDEMNIFYING PARTY" means the Sellers pursuant to Section 8.02 and the
Purchaser pursuant to Section 8.03, as the case may be.
"INSTITUTION" means the post-secondary educational institution owned and
operated by the Company at the Metrocenter Corporate Park of West Palm Beach and
in the Australian Business Park in Mangonia Park under the trade names "New
England Tech", "NET", "Florida Culinary Institute" and "FCI", and all other
locations, branches, campuses, buildings, classrooms, learning sites and
facilities at which any portion of an educational program is offered or taught,
in whole or in part, by or in association with that post-secondary educational
institution or the Company, as set forth in Section 3.26(c) of the Disclosure
Schedule.
"INTELLECTUAL PROPERTY" means: (a) patents and patent applications; (b)
trademarks, service marks, domain names, trade dress, logos, trade names,
corporate names and slogans, together with the goodwill associated therewith;
(c) copyrights; (d) computer software, data, databases, data rights and Internet
websites; (e) confidential and proprietary information, including trade secrets
and know-how; (f) advertising and promotional rights and rights to privacy and
publicity; (g) registrations and applications for registration of the foregoing,
including reissues, divisions, continuations, continuations-in-part, extensions,
renewals and reexaminations thereof; (h) all common law rights thereto; and (i)
proprietary rights in curricula, course design and educational services.
"INVENTORY" means all inventory, goods and other personal property
maintained, held or stored by or for the Company at the Closing, and any prepaid
deposits for any of the same.
"IRS" means the Internal Revenue Service of the United States.
"KNOWLEDGE OF THE SELLERS" means the actual knowledge, after due
inquiry, of (i) the Principal Seller, Scott Freund and Charles Halliday, (ii)
Elizabeth Lavton, but only to the extent of her knowledge by reason of her
duties as Financial Aid Director of the Institution, (iii) Robert Laquerre, but
only to the extent of his knowledge by reason of his duties as Dean of Technical
Education of the Institution and (iv) David Pantone, but only to the extent of
his knowledge by reason of his duties as Dean of Culinary Education of the
Institution.
"LAW" means any United States federal, state, local or similar statute,
law, ordinance, regulation, rule, code, order, or Accrediting Body standard.
"LEASED REAL PROPERTY" means the real property leased by the Company, as
tenant, together with, to the extent leased by the Company, all buildings and
other structures, plants, facilities or improvements currently or hereafter
located thereon, all fixtures, systems, equipment and items of personal property
of the Company attached or appurtenant thereto and all easements, licenses,
rights and appurtenances relating to the foregoing.
"LETTER OF CREDIT" means any instruments or documents issued by a bank
guaranteeing the payment of a customer's drafts up to a stated amount for a
specified period.
"LIABILITIES" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, asserted or unasserted,
matured or unmatured or determined or determinable, including those arising
under any Law (including any Environmental Law or Educational Law), Action or
Governmental Order and those arising under any contract, agreement, arrangement,
commitment or undertaking.
"LICENSED INTELLECTUAL PROPERTY" means Intellectual Property licensed to
the Company or the Institution pursuant to the Company IP Agreements.
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"MATERIAL ADVERSE EFFECT" means any circumstance, change in or effect on
the Business or the Company that, individually or in the aggregate with all
other circumstances, changes in or effects on the Business or the Company: (a)
is or is reasonably likely to be materially adverse to the business, operations,
assets, results of operations or the condition (financial or otherwise) of the
Business or the Company or (b) is reasonably likely to materially adversely
affect the ability of the Purchaser to operate or conduct the Business in the
manner in which it is currently operated or conducted by the Company.
"OWNED REAL PROPERTY" means the real property in which the Company has
fee title (or equivalent) interest, together with all buildings and other
structures, facilities or improvements currently or hereafter located thereon,
all fixtures, systems, equipment and items of personal property of the Company
attached or appurtenant thereto and all easements, licenses, rights and
appurtenances relating to the foregoing.
"PERMITTED ENCUMBRANCES" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced and as to which the Company is not otherwise subject to civil or
criminal liability due to its existence: (a) liens for Taxes, assessments and
governmental charges or levies not yet due and payable for which adequate
reserves have been maintained in accordance with GAAP; (b) Encumbrances imposed
by Law, such as materialmen's, mechanics', carriers', workmen's and repairmen's
liens and other similar liens arising in the ordinary course of business
securing obligations that (i) are not overdue for a period of more than 30 days
and (ii) are not in excess of $5,000 in the case of a single property or $25,000
in the aggregate at any time; (c) pledges or deposits to secure obligations
under workers' compensation laws or similar legislation or to secure public or
statutory obligations; and (d) zoning laws and ordinances, minor survey
exceptions, reciprocal easement agreements and other customary encumbrances on
or defects in title to real or personal property that (i) were not incurred in
connection with any Indebtedness, (ii) do not render title to the property
encumbered thereby unmarketable and (iii) do not, individually or in the
aggregate, materially adversely affect the value of or the use of such property
for its current and anticipated purposes.
"PERSON" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934.
"POST-CLOSING PERIOD" means any taxable period (or portion of a taxable
period) beginning after the Closing Date.
"PRE-CLOSING PERIOD" means any taxable period (or portion of a taxable
period) ending on or prior to the Closing Date.
"PRINCIPAL SELLER" means Richard I. Gouse.
"PURCHASE PRICE BANK ACCOUNT" means a bank account in the United States
to be designated by the Principal Seller in a written notice to the Purchaser at
least one Business Day before the Closing.
"PURCHASER'S ACCOUNTANTS" means Deloitte & Touche LLP, independent
accountants of the Purchaser.
"REAL PROPERTY" means the Leased Real Property and the Owned Real
Property.
"RECEIVABLES" means any and all accounts receivable (including Student
Accounts Receivable), notes and other amounts receivable from third parties,
including customers and employees, arising from the conduct of the Business
before the Closing Date, whether or not in the ordinary course, together with
any unpaid financing charges accrued thereon.
"REGULATIONS" means the Treasury Regulations (including Temporary
Regulations) promulgated by the United States Department of Treasury with
respect to the Code or other federal tax statutes.
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"RELEASE" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and the like
into or upon any land or water or air or otherwise entering into the
Environment.
"REMEDIAL ACTION" means all action to (a) clean up, remove, treat or
handle in any other way Hazardous Materials in the Environment; (b) prevent the
Release of Hazardous Materials so that they do not migrate, endanger or threaten
to endanger public health or the Environment; or (c) perform remedial
investigations, feasibility studies, corrective actions, closures and
post-remedial or post-closure studies, investigations, operations, maintenance
and monitoring.
"SELLERS' ACCOUNTANTS" means DiSanto Priest & Co., independent
accountants of the Sellers.
"STATE EDUCATIONAL AGENCY" means any state educational licensing body
that provides a license or authorization for the Institution to provide
postsecondary education in that state, including but not limited to the Florida
Commission for Independent Education.
"STRADDLE PERIOD" means any taxable period beginning on or prior to and
ending after the Closing Date.
"STUDENT ACCOUNTS RECEIVABLE" means the Company's accounts receivable
for student tuition, fees and institutional charges (including U.S. DOE accounts
receivable) with respect to students currently attending the Institution as of
the Closing Date, as determined in accordance with GAAP applied on a basis
consistent with the past practices of the Company.
"TAX" or "TAXES" means any and all taxes and other fees, levies, duties,
tariffs, imposts and other charges that are in the nature of taxes (together
with any and all interest, penalties, additions to tax and additional amounts
imposed with respect thereto) imposed by any Governmental Authority or taxing
authority, including: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; taxes or other charges in the nature of
excise, withholding, ad valorem, stamp, transfer, value-added, or gains taxes.
"TAX RETURNS" means all returns, computations, reports and statements
required to be filed with any Governmental Authority with respect to Taxes.
"TITLE IV PROGRAMS" means the programs of federal student financial
assistance administered pursuant to Title IV of the HEA.
"TRANSITIONAL CONSENT AGREEMENT" means the Transitional Consent
Agreement to be executed by the Company and New England Institute of Technology
on the Closing Date, substantially in the form of Exhibit 1.01(b).
"U.S." and "UNITED STATES" means the United States of America.
"U.S. DOE" means the United States Department of Education.
"U.S. DOE APPROVAL" means a provisional program participation agreement
issued and countersigned by the Secretary of U.S. DOE, or her designee, in
conjunction with an Eligibility and Certification Approval Report that is
complete and accurate in all material respects, certifying an institution for
participation in the Title IV Programs.
"U.S. DOE PRE-CLOSING NOTICE" means written notification from the U.S.
DOE reasonably satisfactory to the Purchaser that (i) states that the
pre-acquisition review application is considered materially complete, (ii) does
not state that there is a material impediment that would prohibit approval by
the U.S. DOE of the change in ownership of the Institution, (iii) does not
restrict the Institution's ability to add new
7
locations or new educational programs, or to modify existing educational
programs, and (iv) does not require the Institution to issue a Letter of Credit
in an amount in excess of 25% of the Institution's participation level in the
Title IV Programs for its last completed fiscal year.
"WORKING CAPITAL" means the excess of the current Assets over the
current Liabilities of the Company, as shown on the Closing Statement of Net
Current Assets or the Estimated Closing Statement of Net Current Assets, as the
case may be.
SECTION 1.02. DEFINITIONS. The following terms have the meanings set
forth in the Sections set forth below:
DEFINITION LOCATION
"ANCILLARY LEASE DOCUMENTS"......................... 3.16(b)
-------------------------
"BUSINESS".......................................... Recitals
--------
"CLOSING"........................................... 2.03
-------
"CLOSING DATE"...................................... 2.03
------------
"COMMON STOCK"...................................... Recitals
------------
"COMPANY"........................................... Recitals
-------
"COMPLIANCE DATE"................................... 3.26(a)
---------------
"ERISA"............................................. 3.19(a)
-----
"ESCROW AGREEMENT".................................. 2.07
----------------
"FINANCIAL STATEMENTS".............................. 3.07(a)
--------------------
"INDEPENDENT ACCOUNTING FIRM"....................... 2.07(c)(ii)
---------------------------
"INTERIM FINANCIAL STATEMENTS"...................... 3.07(a)
----------------------------
"INTERNAL CONTROLS"................................. 3.07(c)
-----------------
"LEASE"............................................. 3.14(a)
-----
"LOSS".............................................. 8.02(a)
----
"MATERIAL CONTRACTS"................................ 3.14(a)
------------------
"MULTIEMPLOYER PLAN"................................ 3.19(b)
------------------
"MULTIPLE EMPLOYER PLAN"............................ 3.19(b)
----------------------
"OPTIONS"........................................... 3.16(b)
-------
"PLANS"............................................. 3.19(a)
-----
"PURCHASE PRICE".................................... 2.02
--------------
"PURCHASE PRICE DECREASE"........................... 2.07(d)(ii)
-----------------------
"PURCHASE PRICE INCREASE"........................... 2.07(d)(ii)
-----------------------
"PURCHASER"........................................r Preamble
---------
"PURCHASER INDEMNIFIED PARTY"....................... 8.02(a)
---------------------------
"REQUIRED CONSENTS"................................. 3.06
-----------------
"RESTRICTED BUSINESS"............................... 5.12(a)
-------------------
"RESTRICTED PERIOD"................................. 5.12(a)
-----------------
"RESTRICTED TERRITORY".............................. 5.12(a)
--------------------
"S-CORPORATION"..................................... 3.24(d)
-------------
"SELLERS"........................................... Preamble
-------
"SELLER INDEMNIFIED PARTY".......................... 8.03(a)
------------------------
"SHARES"............................................ Recitals
------
"TANGIBLE PERSONAL PROPERTY"........................ 3.17(a)
--------------------------
"THIRD PARTY CLAIMS"................................ 8.05
------------------
"TITLE COMPANY"..................................... 7.02(d)
-------------
SECTION 1.03.INTERPRETATION AND RULES OF CONSTRUCTION. In this
Agreement, except to the extent otherwise provided or indicated, or that the
context otherwise requires:
(a)when a reference is made in this Agreement to an Article,
Section, Exhibit or Schedule, such reference is to an Article or Section
of, or a Schedule or Exhibit to, this Agreement;
8
(b) the table of contents and headings for this Agreement are
for reference purposes only and do not affect in any way the meaning or
interpretation of this Agreement;
(c) whenever the words "include," "includes" or "including" are
used in this Agreement, they are deemed to be followed by the words
"without limitation";
(d) the words "hereof," "herein" and "hereunder" and words of
similar import, when used in this Agreement, refer to this Agreement as
a whole and not to any particular provision of this Agreement;
(e) all terms defined in this Agreement have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto, unless otherwise defined therein;
(f) the definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms;
(g) any Law defined or referred to herein or in any agreement or
instrument that is referred to herein means such Law or statute as from
time to time amended, modified or supplemented, including by succession
of comparable successor Laws;
(h) references to a Person are also to its successors and
permitted assigns; and
(i) the use of "or" is not intended to be exclusive unless
expressly indicated otherwise.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE OF THE SHARES. Upon the terms and
subject to the conditions of this Agreement, at the Closing, the Sellers shall
sell, assign, transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to the Purchaser, the Shares, and the
Purchaser shall purchase the Shares.
SECTION 2.02. PURCHASE PRICE. Subject to the adjustments set forth in
Section 2.06, the purchase price for the Shares and the covenants contained in
Section 5.12 shall be $35,264,000 (the "Purchase Price"). The Purchaser shall
deduct from the Purchase Price (including any amounts payable under Section
2.06) any amounts required to be withheld and deducted under the Code or other
applicable Tax Law. Any amounts so deducted shall be remitted by the Purchaser
to the appropriate Governmental Authority on a timely basis.
SECTION 2.03. CLOSING. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Shares contemplated by this Agreement
shall take place at a closing (the "Closing") to be held at the offices of
Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York at 10:00 A.M.,
New York time (a) on the first Business Day of the month following the
satisfaction or waiver of the conditions to the obligations of the parties set
forth in Article VII, or (b) at such other time or on such other date as the
Principal Seller and the Purchaser may mutually agree upon in writing (the date
on which the Closing takes place being the "Closing Date").
SECTION 2.04. CLOSING DELIVERIES BY THE SELLERS. At the Closing, the
Sellers shall deliver to the Purchaser:
(a) stock certificates evidencing the Shares duly endorsed in
blank, or accompanied by stock powers duly executed in blank, in form
satisfactory to the Purchaser and with all required stock transfer tax
stamps affixed;
(b) executed counterparts of each Ancillary Agreement to which
each Seller is a party;
(c) a receipt for the Purchase Price less the Escrow Amount;
9
(d) the resignations, effective as of the Closing, of all of the
directors and officers of the Company, except for such persons as shall
have been designated in writing prior to the Closing by the Purchaser to
the Principal Seller;
(e) a copy of (i) the Certificate of Incorporation, as amended,
of the Company, certified by the Secretary of State of the State of
Florida, as of a date not earlier than five Business Days prior to the
Closing and accompanied by a certificate of the Secretary or Assistant
Secretary of the Company, dated as of the Closing, stating that no
amendments have been made to such Certificate of Incorporation since
such date, and (ii) the By-laws of the Company, certified by the
Secretary or Assistant Secretary of the Company;
(f) a certificate of non-foreign status (in a form reasonably
acceptable to the Purchaser) pursuant to Section 1.1445-2(b)(2) of the
Regulations;
(g) a good standing certificate for the Company from the
Secretary of State of the State of Florida; and
(h) the General Release.
SECTION 2.05. CLOSING DELIVERIES BY THE PURCHASER. (A) At the Closing,
the Purchaser shall deliver to the Sellers:
(i) the Purchase Price less the Escrow Amount by wire transfer
in immediately available funds to the Purchase Price Bank Account;
(ii) executed counterparts of each Ancillary Agreement to which
the Purchaser is a party;
(iii) a true and complete copy of the written consent of the
board of directors of the Purchaser evidencing its authorization of the
execution and delivery by the Purchaser of this Agreement and the
Ancillary Agreements to which the Purchaser is a party and the
consummation of the transactions contemplated hereby and thereby; and
(iv) a certificate of the Secretary or an Assistant Secretary of
the Purchaser certifying the names and signatures of the officers of the
Purchaser authorized to sign this Agreement and the Ancillary Agreements
and other documents to be delivered hereunder and thereunder.
(b) At the Closing, the Purchaser shall deliver or cause to be delivered
to the Escrow Agent, in accordance with the Escrow Agreement, the Escrow Amount
by wire transfer in immediately available funds to the Escrow Account.
SECTION 2.06. ADJUSTMENT OF PURCHASE PRICE. The Purchase Price shall be
subject to adjustment on and after the Closing Date as specified in this Section
2.06:
(a) ESTIMATED CLOSING STATEMENT OF NET CURRENT ASSETS. At least 10
Business Days prior to the Closing, the Principal Seller shall deliver to the
Purchaser the Estimated Closing Statement of Net Current Assets. The Sellers
shall prepare the Estimated Closing Statement of Net Current Assets in
accordance with GAAP and GAGAS on a basis consistent with the preparation of the
balance sheet of the Company for the fiscal year ended as of December 31, 2005,
and the Estimated Closing Statement of Net Current Assets shall set forth the
Sellers' good faith estimate of the Working Capital as of the Closing Date. The
Sellers shall make available to the Purchaser the work papers used in preparing
the Estimated Closing Statement of Net Current Assets.
(b) CLOSING STATEMENT OF NET CURRENT ASSETS. As promptly as practicable,
but in any event within 30 Business Days following the Closing, the Purchaser
shall deliver to the Principal Seller the Closing Statement of Net Current
Assets, together with the report thereon of the Purchaser's Accountants, stating
that the Closing Statement of Net Current Assets fairly presents the financial
position of the Company at the Closing in accordance
10
with GAAP and GAGAS. The Purchaser shall make available to the Sellers the work
papers used in preparing the Closing Statement of Net Current Assets.
(c) DISPUTES. (i) The Sellers may dispute any amounts reflected on the
Closing Statement of Net Current Assets, but only on the basis that the amounts
reflected on the Closing Statement of Net Current Assets were not arrived at in
accordance with this Agreement or with GAAP and GAGAS or were arrived at based
on mathematical or clerical error; PROVIDED, HOWEVER, that the Principal Seller
shall have notified the Purchaser and the Purchaser's Accountants in writing of
each disputed item, specifying the estimated amount thereof in dispute and
setting forth, in reasonable detail, the basis for such dispute, within 20
Business Days of the Purchaser's delivery of the Closing Statement of Net
Current Assets to the Principal Seller. In the event of such a dispute, the
Principal Seller, on behalf of himself and the other Sellers, and the Purchaser
shall attempt to reconcile their differences, and any resolution agreed by them
as to any disputed amounts shall be final, conclusive and binding on the parties
hereto.
(ii) If the Principal Seller and the Purchaser are unable to
reach a resolution with such effect within 20 Business Days after the
receipt by the Purchaser and the Purchaser's Accountants of the
Principal Seller's written notice of dispute, the Sellers and the
Purchaser shall submit the items remaining in dispute for resolution to
an independent accounting firm of national reputation mutually
acceptable to the Principal Seller and the Purchaser (such accounting
firm being referred to herein as the "INDEPENDENT ACCOUNTING FIRM"),
which shall, within 20 Business Days after such submission, determine
and report to the Principal Seller and the Purchaser upon such remaining
disputed items, and such report shall be final, conclusive and binding
on the Sellers and the Purchaser. The fees and disbursements of the
Independent Accounting Firm shall be allocated between the Sellers, on
the one hand, and the Purchaser, on the other hand, in the same
proportion that the aggregate amount of such remaining disputed items so
submitted to the Independent Accounting Firm that is unsuccessfully
disputed by each such party (as finally determined by the Independent
Accounting Firm) bears to the total amount of such remaining disputed
items so submitted.
(iii) In acting under this Section 2.06, the Sellers'
Accountants, the Purchaser's Accountants and the Independent Accounting
Firm shall be entitled to the privileges and immunities of arbitrators.
(d) PURCHASE PRICE ADJUSTMENT. (i) The Closing Statement of Net Current
Assets shall be deemed final for the purposes of this Section 2.06 upon the
earliest of (A) the failure of the Principal Seller to notify the Purchaser of a
dispute within 20 Business Days of the Purchaser's delivery of the Closing
Statement of Net Current Assets to the Principal Seller, (B) the resolution of
all disputes, pursuant to Section 2.06(c)(i), by the Principal Seller and the
Purchaser, and (C) the resolution of all disputes, pursuant to Section
2.06(c)(ii), by the Independent Accounting Firm.
(ii) Within three Business Days of the Closing Statement of Net Current
Assets being deemed final, a Purchase Price adjustment shall be made as follows:
In the event that the Working Capital reflected on the Closing Statement of Net
Current Assets is less than $0.01, then the Purchase Price shall be adjusted
downward in an amount equal to such deficiency (such amount, the "PURCHASE PRICE
DECREASE"). In the event that the Working Capital reflected on the Closing
Statement of Net Current Assets exceeds $0.01, then the Purchase Price shall be
adjusted upward in an amount equal to such excess (such amount, the "PURCHASE
PRICE INCREASE").
(iii) In case of a Purchase Price Increase, within five Business Days of
the Closing Statement of Net Current Assets being deemed final, the Purchaser
shall pay such Purchase Price Increase to the Principal Seller, for distribution
to the Sellers, by wire transfer of immediately available funds to the Purchase
Price Bank Account. In case of a Purchase Price Decrease, within five Business
Days after the Closing Statement of Net Current Assets being deemed final, the
Principal Seller shall cause such Purchase Price Decrease to be paid to the
Purchaser, or such party as the Purchaser may designate, by wire transfer of
immediately available funds to the account or accounts specified by the
Purchaser (or such party) to the Principal Seller.
SECTION 2.07. ESCROW. Prior to the Closing, the Sellers and the
Purchaser shall enter into an Escrow Agreement with the Escrow Agent
substantially in the form of Exhibit 2.07 (the "Escrow Agreement"). In
11
accordance with the terms of the Escrow Agreement, the Purchaser shall deposit
the Escrow Amount to be managed and paid out by the Escrow Agent in accordance
with the terms of the Escrow Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
As an inducement to the Purchaser to enter into this Agreement, except
as set forth in the Disclosure Schedule (each section of which qualifies the
correspondingly numbered representation and warranty or covenant herein;
PROVIDED, that disclosure of any fact or item in any section of the Disclosure
Schedule shall, should the existence of such fact or item be relevant to any
other section, be deemed to be disclosed with respect to that other section, so
long as the relevance of such disclosure to such other section is reasonably
apparent), the Sellers hereby represent and warrant, on a joint and several
basis (except with respect to Section 3.01(b), pursuant to which each Seller
represents and warrants each statement therein only to the extent directly
applicable to such Seller), to the Purchaser as follows:
SECTION 3.01. ORGANIZATION, AUTHORITY AND QUALIFICATION. (A) The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all necessary power and
authority to own, operate or lease the properties and assets now owned, operated
or leased by it and to carry on the Business as it has been and is currently
conducted. The Company is duly licensed or qualified to do business and is in
good standing in each jurisdiction in which the properties owned or leased by it
or the operation of its business makes such licensing or qualification necessary
or desirable, except to the extent that the failure to be so licensed or
qualified and in good standing would not (i) adversely affect the ability of the
Sellers to carry out their obligations under, and to consummate the transactions
contemplated by, this Agreement and the Ancillary Agreements or (ii) adversely
affect the ability of the Company to conduct the Business, and all such
jurisdictions are set forth in Section 3.01 of the Disclosure Schedule. All
corporate actions taken by the Company have been duly authorized, and the
Company has not taken any action that in any respect conflicts with, constitutes
a default under, or results in a violation of, any provision of its Certificate
of Incorporation or By-laws. True and correct copies of the Certificate of
Incorporation and By-laws of the Company, each as in effect on the date hereof,
have been delivered by the Sellers to the Purchaser.
(b) Each Seller is an individual and has all requisite right, power and
authority and full legal capacity to execute and deliver this Agreement and the
Ancillary Agreements to which such Seller is a party, to perform such Seller's
obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. This Agreement has been, and upon their
execution the Ancillary Agreements to which each Seller is a party will be, duly
and validly executed and delivered by such Seller, and (assuming due
authorization, execution and delivery by the Purchaser) this Agreement
constitutes, and upon their execution such Ancillary Agreements shall
constitute, legal, valid and binding obligations of such Seller, enforceable
against such Seller in accordance with their respective terms. The failure of
the spouse (if any) of each Seller to be a party or signatory to this Agreement
or any of the Ancillary Agreements to which such Seller is a party shall not (i)
prevent such Seller from performing his or her obligations and from consummating
the transactions contemplated hereunder and thereunder or (ii) prevent this
Agreement or such Ancillary Agreements from constituting the legal, valid and
binding obligations of such Seller, enforceable against such Seller in
accordance with its terms.
SECTION 3.02. NO SUBSIDIARIES. There are no corporations, partnerships,
joint ventures, associations or other entities in which the Company owns, of
record or beneficially, any direct or indirect equity or other interest or any
right (contingent or otherwise) to acquire the same. The Company is not a member
of (nor is any part of the Business conducted through) any partnership, nor is
the Company a participant in any joint venture or similar arrangement.
SECTION 3.03. CAPITALIZATION. (A) The authorized capital stock of the
Company consists of 10,000 shares of Common Stock. As of the date hereof, 10,000
shares of Common Stock are issued and outstanding, all of which are validly
issued, fully paid and nonassessable. None of the issued and outstanding shares
of Common Stock was issued in violation of any preemptive rights. There are no
options, warrants, convertible securities or other rights, agreements,
arrangements or commitments of any character relating to the Shares or
12
obligating any Seller or the Company to issue or sell any Shares, or any other
interest in, the Company. There are no outstanding contractual obligations of
the Company to repurchase, redeem or otherwise acquire any shares of Common
Stock or to provide funds to, or make any investment (in the form of a loan,
capital contribution or otherwise) in, any other Person. The Shares constitute
all of the issued and outstanding capital stock of the Company and are owned of
record and beneficially by the Sellers, free and clear of all Encumbrances. Upon
consummation of the transactions contemplated by this Agreement and registration
of the Shares in the name of the Purchaser in the stock records of the Company,
the Purchaser, assuming it shall have purchased the Shares for value in good
faith and without notice of any adverse claim, will own all the issued and
outstanding capital stock of the Company free and clear of all Encumbrances.
Upon consummation of the transactions contemplated by this Agreement, the Shares
will be fully paid and nonassessable. There are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect with respect
to the voting or transfer of any of the Shares.
(b) The stock register of the Company accurately records: (i) the name
and address of each Person owning Shares and (ii) the certificate number of each
certificate evidencing shares of capital stock issued by the Company, the number
of shares evidenced by each such certificate, the date of issuance thereof and,
in the case of cancellation, the date of cancellation.
SECTION 3.04. CORPORATE BOOKS AND RECORDS. The minute books of the
Company contain accurate records of all meetings and accurately reflect all
other actions taken by the stockholders, Board of Directors and all committees
of the Board of Directors of the Company. Complete and accurate copies of all
such minute books and of the stock register of the Company have been provided by
the Sellers to the Purchaser.
SECTION 3.05. NO CONFLICT. Assuming that all consents, approvals,
authorizations filings, notifications and other actions described in Section
3.06 of the Disclosure Schedule have been obtained or made, the execution,
delivery and performance by each Seller of this Agreement and the Ancillary
Agreements to which such Seller is a party do not and will not (a) violate,
conflict with or result in the breach of any provision of the Certificate of
Incorporation or By-Laws (or similar organizational documents) of the Company,
(b) conflict with or violate (or cause an event which may reasonably be expected
to have a Material Adverse Effect as a result of) any Law or Governmental Order
applicable to such Seller, the Company, or any of their respective assets,
properties or businesses, or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, or result in the creation of any Encumbrance on
any of the Shares or any of the Assets pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which the Company is a party or by which any
of the Shares or any of the Assets is bound or affected.
SECTION 3.06. REQUIRED CONSENTS. Except for the consents, approvals and
notifications that must be obtained or given prior to or after the Closing as
set forth on Section 3.06 of the Disclosure Schedule (the "Required Consents"),
the execution, delivery and performance by each Seller of this Agreement and
each Ancillary Agreement to which such Seller is a party, as applicable, do not
and will not require any consent, approval, authorization or other order of,
action by, filing with or notification to, any Governmental Authority or
Educational Agency. To the Knowledge of the Sellers, there is no reason why all
the consents, approvals and authorizations necessary for the consummation of the
transactions contemplated by this Agreement will not be received.
SECTION 3.07. FINANCIAL INFORMATION; BOOKS AND RECORDS. (A) True and
complete copies of (i) the audited balance sheet of the Company for each of the
three fiscal years ended as of December 31, 2003, December 31, 2004 and December
31, 2005, previously filed with U.S. DOE on behalf of the Company or the
Institution, and the related audited statements of income, retained earnings,
stockholders' equity and changes in financial position of the Company, together
with all related notes and schedules thereto, accompanied by the reports thereon
of the Sellers' Accountants (collectively referred to as the "Financial
Statements"), and (ii) the unaudited balance sheet of the Company as of February
28, 2006 and the related statements of income, retained earnings, stockholders'
equity and changes in financial position of the Business, together with all
related notes and schedules thereto (collectively referred to herein as the
"Interim Financial Statements") have been delivered by the Sellers to the
Purchaser. The Financial Statements and the Interim Financial Statements (A)
were prepared in accordance with the books of account and other financial
records of the Company, (B) present fairly in all material respects the
financial condition and results of operations of the Company as of the dates
thereof or for the periods covered
13
thereby, (C) have been prepared in accordance with GAAP and GAGAS applied on a
basis consistent with the past practices of the Company, and (D) include all
adjustments (consisting only of normal recurring accruals) that are necessary
for a fair presentation of the financial condition of the Company and the
results of the operations of the Company as of the dates thereof or for the
periods covered thereby.
(b) The books of account and other financial records of the Company: (i)
reflect all items of income and expense and all assets and Liabilities required
to be reflected therein in accordance with GAAP and GAGAS, (ii) are in all
material respects complete and correct, and do not contain or reflect any
material inaccuracies or discrepancies and (iii) have been maintained in
accordance with good business and accounting practices.
(c) The Company has established and maintains a system of internal
accounting controls ("INTERNAL CONTROLS") sufficient to comply with all legal
and accounting requirements applicable to the Company and the Institution and to
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and GAGAS.
There are no significant deficiencies or material weaknesses in the design or
operation of such Internal Controls, and the Company has not been advised by any
independent auditor or other third party that any such significant deficiency or
material weakness in such Internal Controls exists or existed.
(d) None of the Sellers, the Company or any of its directors, officers,
employees, auditors, accountants or representatives has received or otherwise
had or obtained knowledge of any complaint, allegation, assertion or claim,
whether written or oral, regarding the accounting or auditing practices,
procedures, methodologies or methods of the Company or its Internal Controls,
including any complaint, allegation, assertion or claim that the Company has
engaged in questionable financial reporting, accounting or auditing practices.
There has not been any fraud, whether or not material, that involves management
or other employees who have a significant role in the Internal Controls or any
allegations or investigations of any such fraud.
SECTION 3.08. ABSENCE OF UNDISCLOSED LIABILITIES. There are no
Liabilities of the Company, other than Liabilities (a) reflected or reserved
against in the Financial Statements, (b) set forth in Section 3.08 of the
Disclosure Schedule, or (c) incurred since December 31, 2005 in the ordinary
course of business, consistent with past practice, of the Company and which do
not and could not reasonably be expected to have a Material Adverse Effect.
Reserves are reflected in the Financial Statements against all Liabilities of
the Company in amounts that have been established on a basis consistent with the
past practices of the Company and in accordance with GAAP.
SECTION 3.09. RECEIVABLES. Set forth in Section 3.09 of the Disclosure
Schedule is an aged list of the Receivables as of February 28, 2006. All
Receivables reflected in the Financial Statements or arising from December 31,
2005 until the Closing have or will have arisen in the ordinary course of
business from bona fide transactions and constitute or will constitute only
valid, undisputed claims of the Company or the Institution, and no valid claims
of setoff or other defenses or counterclaims have been formally asserted with
respect thereto, other than normal cash discounts accrued in the ordinary course
of business consistent with the past practices of the Company.
SECTION 3.10. CONDUCT IN THE ORDINARY COURSE; ABSENCE OF CERTAIN
CHANGES, EVENTS AND CONDITIONS. Since December 31, 2005, the Business has been
conducted in the ordinary course consistent with past practice. As amplification
and not limitation of the foregoing, since such date, neither the Company nor
the Institution has:
(a) permitted or allowed any of the Assets to be subjected to
any Encumbrance, other than Permitted Encumbrances and Encumbrances that
will be released at or prior to the Closing;
(b) except in the ordinary course of business consistent with
past practice, discharged or otherwise obtained the release of any
Encumbrance related to the Company or paid or otherwise discharged any
Liability related to the Company, other than current liabilities
reflected on the Reference Statement of Net Current Assets and current
liabilities incurred in the ordinary course of business consistent with
past practice since December 31, 2005;
14
(c) written down or written up (or failed to write down or write
up in accordance with GAAP consistent with past practice) the value of
any Inventories or Receivables or revalued any of the Assets other than
in the ordinary course of business consistent with past practice and in
accordance with GAAP;
(d) made any change in any method of accounting or accounting
practice or policy used by the Company, other than such changes required
by GAAP and set forth in Section 3.10 of the Disclosure Schedule;
(e) amended, terminated, cancelled or compromised any material
claims of the Company or waived any other rights of substantial value to
the Company;
(f) sold, transferred, leased, subleased, licensed or otherwise
disposed of any properties or assets, real, personal or mixed (including
leasehold interests and intangible property), other than the sale of
Inventories in the ordinary course of business consistent with past
practice;
(g) issued or sold any capital stock, notes, bonds or other
securities, or any option, warrant or other right to acquire the same,
of the Company;
(h) redeemed any of the capital stock or declared, made or paid
any dividends or distributions (whether in cash, securities or other
property) to the holders of capital stock of the Company or otherwise;
(i) merged with, entered into a consolidation with or acquired
an interest of 5% or more in any Person or acquired a substantial
portion of the assets or business of any Person or any division or line
of business thereof, or otherwise acquired any material assets other
than in the ordinary course of business consistent with past practice;
(j) made any capital expenditure or commitment for any capital
expenditure in excess of $60,000 individually or $150,000 in the
aggregate;
(k) issued any sales orders or otherwise agreed to make any
purchases involving exchanges in value in excess of $35,000
individually;
(l) made any material change in the customary methods of
operations of the Company, including practices and policies relating to
purchasing, Inventories and marketing;
(m) made, revoked or changed any Tax election or method of Tax
accounting or settled or compromised any liability with respect to Taxes
of the Company;
(n) incurred any Indebtedness in excess of $25,000 individually
or $100,000 in the aggregate;
(o) made any loan to, guaranteed any Indebtedness of, or
otherwise incurred any Indebtedness on behalf of, any Person;
(p) failed to pay any creditor any material amount owed to such
creditor when due;
(q) (i) granted any increase, or announced any increase, in the
wages, salaries, compensation, bonuses, incentives, pension or other
benefits payable by the Company to any of its employees, including any
increase or change pursuant to any Plan or (ii) established or increased
or promised to increase any benefits under any Plan, in either case
except as required by Law and involving ordinary increases consistent
with the past practices of the Company;
(r) entered into any agreement, arrangement or transaction with
any of its directors, officers, employees or stockholders (or with any
relative, beneficiary, spouse or Affiliate of such Persons);
15
(s) terminated, discontinued, closed or disposed of any facility
or other business operation, or laid off any employees (other than
layoffs of less than 50 employees in any six-month period in the
ordinary course of business consistent with past practice) or
implemented any early retirement, separation or program providing early
retirement window benefits within the meaning of Section 1.401(a)-4 of
the Regulations or announced or planned any such action or program for
the future;
(t) disclosed any secret or confidential Intellectual Property
(except by way of issuance of a patent) or permitted to lapse or become
abandoned any Intellectual Property (or any registration or grant
thereof or any application relating thereto) to which, or under which,
the Company has any right, title, interest or license;
(u) (i) allowed any Permit or Environmental Permit that was
issued to or relates to the Company or otherwise relates to the Business
to lapse or terminate or (ii) failed to renew any insurance policy,
Permit or Environmental Permit that is scheduled to terminate or expire
within 45 calendar days of the Closing;
(v) failed to maintain the Company's property and equipment in
good repair and operating condition, ordinary wear and tear excepted;
(w) suffered any casualty loss or damage with respect to any of
the Assets which in the aggregate have a replacement cost of more than
$50,000, whether or not such loss or damage shall have been covered by
insurance;
(x) amended, modified or consented to the termination of any
Material Contract or the Company's rights thereunder;
(y) amended or restated the Certificate of Incorporation or
By-Laws (or other organizational documents) of the Company;
(z) made any charitable contribution;
(aa) (i) abandoned, sold, assigned, or granted any security
interest in or to any Company Intellectual Property, Licensed
Intellectual Property or Company IP Agreements, including failing (A) to
perform or cause to be performed all applicable filings, recordings and
other acts or (B) to pay or cause to be paid all required fees and taxes
to maintain and protect its interest in such Intellectual Property, (ii)
granted to any third party any license with respect to any Company
Intellectual Property or Licensed Intellectual Property, other than
licenses of Company Software to the customers of the Company or
Subsidiaries in the ordinary course of its business, (iii) developed,
created or invented any Intellectual Property jointly with any third
party (other than such joint development, creation or invention with a
third party that is in progress prior to the Reference Statement Date),
or (iv) disclosed, or allowed to be disclosed, any confidential
Intellectual Property, unless such Intellectual Property is subject to a
confidentiality or non-disclosure covenant protecting against further
disclosure thereof;
(bb) suffered any Material Adverse Effect; or
(cc) agreed, whether in writing or otherwise, to take any of the
actions specified in this Section 3.10 or granted any options to
purchase, rights of first refusal, rights of first offer or any other
similar rights or commitments with respect to any of the actions
specified in this Section 3.10, except as expressly contemplated by this
Agreement and the Ancillary Agreements.
SECTION 3.11. LITIGATION. There are no Actions, Claims or Educational
Claims by or against the Company or the Institution (or by or against any Seller
or any Affiliate thereof and relating to the Business, the Company or the
Institution) or affecting any of the Assets or the Business pending before any
Governmental Authority or Educational Agency (nor, to the Knowledge of the
Sellers, threatened to be brought by or before any Governmental Authority or
Educational Agency). None of the Sellers, the Company, the Institution or any of
their
16
respective assets or properties, including the Assets, is subject to any
Governmental Order (nor, to the Knowledge of the Sellers, are any Governmental
Orders threatened to be imposed) that has or has had a Material Adverse Effect
or could affect the legality, validity or enforceability of this Agreement, any
Ancillary Agreement or the consummation of the transactions contemplated hereby
or thereby.
SECTION 3.12. COMPLIANCE WITH LAWS. (A) Except as would not (i)
adversely affect the ability of the Sellers to carry out their obligations
under, and to consummate the transactions contemplated by, this Agreement and
the Ancillary Agreements to which any Seller is a party or (ii) otherwise have a
Material Adverse Effect, each of the Company and the Institution has conducted
and continues to conduct the Business in accordance with all Laws and
Governmental Orders applicable to the Company, the Institution or the Assets,
and neither the Company nor the Institution is in violation of any such Law or
Governmental Order. Neither the Company nor the Institution has, in the last
three years, received any written communication from any Governmental Authority
alleging that the Company or the Institution is not in compliance in any
material respect with any Law or Governmental Order that has not been resolved.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a brief
description of each Governmental Order applicable to the Company, the
Institution or the Assets, and no such Governmental Order has or has had a
Material Adverse Effect or could affect the legality, validity or enforceability
of this Agreement, any Ancillary Agreement or the consummation of the
transactions contemplated hereby or thereby.
SECTION 3.13. ENVIRONMENTAL AND OTHER PERMITS AND LICENSES; RELATED
MATTERS. (A) The Company is in compliance in all material respects with, and for
the past three years has been in compliance in all material respects with, all
applicable Environmental Laws and all Environmental Permits. All past
noncompliance with Environmental Laws or Environmental Permits has been resolved
without any pending, ongoing or future obligation, cost or liability, and there
is no requirement proposed for adoption or implementation under any
Environmental Law or Environmental Permit that would reasonably be expected to
have a Material Adverse Effect.
(b) There are no underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials
are being or have been treated, stored or disposed of on any of the Owned Real
Property or, during the period of the Company's ownership, use or occupancy
thereof, on any property formerly owned, used or occupied by the Company. There
are no underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or
have been treated, stored, or disposed by, or on behalf of, the Company on any
of the Leased Real Property or, during the period of the Company's lease
thereof, on any property formerly leased by the Company.
(c) There has been no Release of any Hazardous Material on any of the
Owned Real Property or, during the period of the Company's ownership, use or
occupancy thereof, on any property formerly owned, used or occupied by the
Company. There has been no Release of any Hazardous Materials by, or on behalf
of, the Company on any of the Leased Real Property or, during the period of the
Company's lease thereof, on any property formerly leased by the Company.
(d) The Company is not conducting, and has not undertaken or completed,
any Remedial Action relating to any Release or threatened Release of any
Hazardous Material at the Real Property or at any other site, location or
operation, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law or Environmental Permit.
(e) There is no asbestos or asbestos-containing material on any of the
Real Property.
(f) None of the Real Property is listed or proposed for listing, or
adjoins any other property that is listed or proposed for listing, on the
National Priorities List or CERCLIS or on any analogous federal, state or local
list.
(g) There are no Environmental Claims pending or, to the Knowledge of
the Sellers, threatened, against the Company or the Real Property, and, to the
Knowledge of the Sellers, there are no circumstances that can reasonably be
expected to form the basis of any such Environmental Claim, including with
respect to any off-site disposal location currently or formerly used by the
Company or any of its predecessors or with respect to previously owned or
operated facilities.
17
(h) There are no wetlands or any areas subject to any legal requirement
or restriction in any way related to wetlands (including requirements or
restrictions related to buffer or transition areas or open waters) at or
affecting the Real Property.
(i) The Sellers have provided the Purchaser with copies of (i) any
environmental assessment or audit reports or other similar studies or analyses
relating to the Business, the Real Property or the Company, and (ii) all
insurance policies issued at any time that may provide coverage to the Company
or the Business for environmental matters.
(j) Neither the execution of this Agreement or the Ancillary Agreements
nor the consummation of the transactions contemplated hereby or thereby will
require any Remedial Action or notice to or consent of Governmental Authorities
or third parties pursuant to any applicable Environmental Law or Environmental
Permit.
SECTION 3.14. MATERIAL CONTRACTS. (A) Sections 3.14(a)(i) through (viii)
of the Disclosure Schedule lists each of the following types of contracts and
agreements (including oral agreements) of the Company and the Institution (such
contracts and agreements, together with all contracts, agreements, leases and
subleases concerning the use, occupancy, management or operation of any Real
Property (including all contracts, agreements, leases and subleases relating to
Intellectual Property and all contracts, agreements, leases and subleases
relating to Tangible Personal Property), being "Material Contracts"):
(i) each contract or agreement, or related series of agreements,
that cannot be cancelled by the Company or the Institution on 30 days'
notice or less without penalty or further payment and under the terms of
which the Company or the Institution: (A) is likely to pay or otherwise
give consideration of more than $50,000 in the aggregate during the
calendar year ended December 31, 2006; or (B) is likely to be entitled
to receive consideration of more than $50,000 in the aggregate during
the calendar year ended December 31, 2006;
(i) all advertising agency, sales promotion, market research,
marketing, consulting and advertising contracts and agreements to which
the Company or the Institution is a party and involving the payment of
consideration of more than $50,000 in the aggregate;
(ii) all management contracts and contracts with independent
contractors or consultants (or similar arrangements) to which the
Company or the Institution is a party and that are not cancelable
without penalty or further payment and without more than 30 days'
notice;
(iii) all contracts and agreements relating to Indebtedness of
the Company or the Institution;
(iv) all contracts and agreements that limit or purport to limit
the ability of the Company or the Institution to compete in any line of
business or with any Person or in any geographic area or during any
period of time;
(v) all contracts and agreements between the Company, on the one
hand, and any Seller or any Affiliate of the Seller (other than the
Company), on the other hand;
(vi) all contracts and agreements between the Company or the
Institution and any of the Company's officers, employees or
stockholder(s) (or any relative, beneficiary, spouse or Affiliate
thereof), other than any oral contracts of employment terminable on no
more than 30 days' notice without penalty or further payment obligation;
(vii) all material contracts, agreements and leases relating to
the use, occupancy, management or operation of the Leased Real Property;
and
18
(viii) all other contracts and agreements, whether or not made
in the ordinary course of business, that are material to the Company,
the Institution or the conduct of the Business, or the absence of which
would have a Material Adverse Effect.
For purposes of this Agreement, the term "LEASE" shall include any and all
leases, subleases, sale/leaseback agreements or similar arrangements.
(b) Each Material Contract: (i) is valid and binding on the Company and,
to the Knowledge of the Sellers, the other party or parties thereto and is in
full force and effect, (ii) is freely and fully assignable to the Purchaser
without penalty or other adverse consequences and (iii) upon consummation of the
transactions contemplated by this Agreement and the Ancillary Agreements shall
continue in full force and effect without penalty or other adverse consequence.
Neither the Company nor the Institution is in breach of, or default under (in
each case, in any material respects), any Material Contract.
(c) No other party to any Material Contract is in breach thereof or
default thereunder, and none of the Sellers, the Company or the Institution has
received any notice of termination, cancellation, breach or default under any
Material Contract.
(d) The Sellers have made available to the Purchaser true and complete
copies of all written Material Contracts and has provided to the Purchaser a
summary of all oral Material Contracts.
(e) There is no contract, agreement or other arrangement granting any
Person any preferential right to purchase any of the Assets (other than in the
ordinary course of business consistent with past practice) or any of the Shares.
SECTION 3.15. INTELLECTUAL PROPERTY. (A) Section 3.15(a) of the
Disclosure Schedule sets forth a true and complete list of (i) all patents and
patent applications, registered trademarks and trademark applications,
registered copyrights and copyright applications and domain names included in
the Company Intellectual Property, (ii) all Company IP Agreements, other than
commercially available off-the-shelf computer software licensed pursuant to
shrink-wrap or click-wrap licenses that is not material to the Business, and
(iii) other Company Intellectual Property material to the Business.
(b) The Company is the exclusive owner of the entire right, title and
interest in and to the Company Intellectual Property, and has a valid license to
use the Licensed Intellectual Property in connection with the Business. The
Company is entitled to use all Company Intellectual Property and Licensed
Intellectual Property in the continued operation of the Business without
limitation, subject only to the terms of the Company IP Agreements. The Company
Intellectual Property and the Licensed Intellectual Property have not been
adjudged invalid or unenforceable in whole or in part, and are valid and
enforceable.
(c) The conduct of the Business as currently conducted does not infringe
or misappropriate the Intellectual Property of any third party, and no Action
alleging any of the foregoing is pending, and no Claim has been threatened or
asserted against any Seller, the Company or any Subsidiary alleging any of the
foregoing. No Person is engaging in any activity that infringes the Company
Intellectual Property.
(d) No Company Intellectual Property is subject to any outstanding
decree, order, injunction, judgment or ruling restricting the use of such
Company Intellectual Property or that would impair the validity or
enforceability of such Company Intellectual Property.
SECTION 3.16. REAL PROPERTY. (A) Section 3.16(a) of the Disclosure
Schedule lists: (i) the street address of each parcel of Owned Real Property,
(ii) the current owner of each parcel of Owned Real Property, and (iii) the
current use of each parcel of Owned Real Property.
(b) Section 3.16(b) of the Disclosure Schedule lists: (i) the street
address of each parcel of Leased Real Property, (ii) the identity of the lessor,
lessee and current occupant (if different from lessee) of each such parcel of
Leased Real Property, (iii) the terms (referencing applicable renewal periods)
and rental payment
19
***
amounts (including all escalations) pertaining to each such parcel of Leased
Real Property and (iv) the current use of each such parcel of Leased Real
Property.
(c) There is no material violation of any Law (including any building,
planning or zoning law) relating to any of the Real Property. The Sellers have
made available to the Purchaser true, legible and complete copies of each deed
for each parcel of Owned Real Property and, to the extent available, for each
parcel of Leased Real Property and all the title insurance policies, title
reports, surveys, certificates of occupancy, environmental reports and audits,
appraisals, permits, other Encumbrances, title documents and other documents
relating to or otherwise affecting the Real Property, the operations of the
Company and the Institution thereon or any other uses thereof. The Company is in
peaceful and undisturbed possession of each parcel of Real Property, and there
are no contractual or legal restrictions that preclude or restrict the ability
to use the Real Property for the purposes for which it is currently being used.
All existing water, sewer, steam, gas, electricity, telephone, cable, fiber
optic cable, Internet access and other utilities required for the construction,
use, occupancy, operation and maintenance of the Real Property are adequate for
the conduct of the Business as it has been and currently is conducted. There are
no material latent defects or material adverse physical conditions affecting the
Real Property or any of the facilities, buildings, structures, erections,
improvements, fixtures, fixed assets and personalty of a permanent nature
annexed, affixed or attached to, located on or forming part of the Real
Property. The Company has not leased any parcel or any portion of any parcel of
Real Property to any other Person, and no other Person has any rights to the
use, occupancy or enjoyment thereof pursuant to any lease, license, occupancy or
other agreement, nor has the Company assigned its interest under any lease
listed in Section 3.16(b) of the Disclosure Schedule to any third party.
(d) Section 3.16(d) of the Disclosure Schedule sets forth a true and
complete list of all leases relating to the Real Property and any and all
ancillary documents (the "ANCILLARY LEASE DOCUMENTS") pertaining thereto
(including all amendments, modifications, supplements, exhibits, schedules,
addenda and restatements thereto and thereof and all consents, including
consents for alterations, assignments and sublets, documents recording
variations, memoranda of lease, options, rights of expansion, extension, first
refusal and first offer and evidence of commencement dates and expiration
dates). With respect to each of such leases, the Company has not exercised or
given any notice of exercise of, nor has any lessor or landlord exercised or
received any notice of exercise by a lessor or landlord of, any option, right of
first offer or right of first refusal contained in any such lease or sublease,
including any such option or right pertaining to purchase, expansion, renewal,
extension or relocation (collectively, "OPTIONS").
(e) There are no condemnation proceedings or eminent domain proceedings
of any kind pending or, to the Knowledge of the Sellers, threatened against the
Real Property.
(f) (i) All the Real Property is occupied under a valid and current
certificate of occupancy, or similar permit, (ii) the transactions contemplated
by this Agreement and the Ancillary Agreements will not require the issuance of
any new or amended certificate of occupancy, and (iii) to the Knowledge of the
Sellers, there are no facts that would prevent the Real Property from being
occupied by the Company or the Institution, as the case may be, after the
Closing in the same manner as occupied by the Company or the Institution
immediately prior to the Closing.
(g) All improvements on the Real Property constructed by or on behalf of
the Company or, to the Knowledge of the Sellers, constructed by or on behalf of
any other Person, were constructed in compliance with all applicable Laws
(including any building, planning or zoning Laws) affecting such Real Property.
(h) No improvements on the Real Property and none of the current uses
and conditions thereof violate in any material respect any Encumbrance,
applicable deed restrictions or other applicable covenants, restrictions,
agreements, existing site plan approvals, zoning or subdivision regulations or
urban redevelopment plans as modified by any duly issued variances, and no
permits, licenses or certificates pertaining to the ownership or operation of
all improvements on the Real Property, other than those which are transferable
with the Real Property, are required by any Governmental Authority having
jurisdiction over the Real Property.
(i) All improvements on any Real Property are wholly within the lot
limits of such Real Property and do not encroach on any adjoining premises or
Encumbrance benefiting such Real Property, and, to the
20
Knowledge of the Sellers, there are no encroachments on any Real Property or any
easement or property right or benefit appurtenant thereto by any improvements
located on any adjoining premises.
(j) There have been no improvements of a value in excess of $10,000 in
the aggregate made to or constructed on any Real Property within the applicable
period for the filing of mechanics' liens.
(k) The rental set forth in each lease of the Leased Real Property is
the actual rental being paid, and there are no separate agreements or
understandings with respect to the same.
(l) The Company has the full right to exercise any Options contained in
the leases pertaining to the Leased Real Property on the terms and conditions
contained therein and upon due exercise would be entitled to enjoy the full
benefit of such Options with respect thereto.
SECTION 3.17. TANGIBLE PERSONAL PROPERTY. (A) Section 3.17(a) of the
Disclosure Schedule lists each item or distinct group of machinery, equipment,
tools, supplies, furniture, fixtures, personalty, vehicles, books, computer
equipment and other tangible personal property (the "Tangible Personal
Property") used in the Business or owned or leased by the Company or the
Institution.
(b) Section 3.17(b) of the Disclosure Schedule sets forth a true and
complete list of all leases for Tangible Personal Property and any and all
material ancillary documents pertaining thereto (including all amendments,
consents and evidence of commencement dates and expiration dates).
(c) The Company or the Institution, as the case may be, has the full
right to exercise any renewal options contained in the leases pertaining to the
Tangible Personal Property on the terms and conditions contained therein and
upon due exercise would be entitled to enjoy the use of each item of leased
Tangible Personal Property for the full term of such renewal options.
SECTION 3.18. ASSETS. (A) The Company owns, leases or has the legal
right to use all the properties and assets, including the Company Intellectual
Property, the Licensed Intellectual Property, the Company IP Agreements, the
Real Property and the Tangible Personal Property, used or intended to be used in
the conduct of the Business or otherwise owned, leased or used by the Company,
and, with respect to contract rights, is a party to and enjoys the right to the
benefits of all contracts, agreements and other arrangements used or intended to
be used by the Company or the Institution or in or relating to the conduct of
the Business, all of which properties, assets and rights constitute Assets. The
Company has good and marketable title to, or, in the case of leased Assets,
valid and subsisting leasehold interests in, all the Assets, free and clear of
all Encumbrances, except Permitted Encumbrances.
(b) The Assets constitute all the properties, assets and rights forming
a part of, used, held or intended to be used in, and all such properties, assets
and rights as are necessary in the conduct of, the Business as conducted at the
time of the Closing. At all times since December 31, 2005, the Company and the
Sellers have caused the Assets to be maintained in accordance with good business
practice, and all the Assets are in good operating condition and repair and are
suitable for the purposes for which they are used and intended to be used.
SECTION 3.19. EMPLOYEE BENEFIT MATTERS. (A) Plans and Material
Documents. Section 3.19(a) of the Disclosure Schedule lists (i) all employee
benefit plans (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) and all bonus, stock option, stock
purchase, restricted stock, incentive, deferred compensation, retiree medical or
life insurance, supplemental retirement, severance or other benefit plans,
programs or arrangements, and all employment, termination, severance or other
contracts or agreements, whether legally enforceable or not, to which the
Company is a party, with respect to which the Company has any obligation or
which are maintained, contributed to or sponsored by the Company for the benefit
of any current or former employee, officer or director of the Company, (ii) each
employee benefit plan for which the Company could incur liability under Section
4069 of ERISA in the event such plan has been or were to be terminated, (iii)
any plan in respect of which the Company could incur liability under Section
4212(c) of ERISA, and (iv) any contracts, arrangements or understandings between
any Seller or any of its Affiliates and any employee of the Company, including
any contracts, arrangements or understandings relating to the sale of the
Company (collectively, the "Plans"). Each Plan is in writing, and the Sellers
have furnished to the Purchaser a complete and
21
accurate copy of each Plan and a complete and accurate copy of each material
document prepared in connection with each such Plan, including a copy of (A)
each trust or other funding arrangement, (B) each summary plan description and
summary of material modifications, (C) the most recently filed IRS Form 5500,
(D) the most recently received IRS determination letter for each such Plan, and
(E) the most recently prepared actuarial report and financial statement in
connection with each such Plan. There are no other employee benefit plans,
programs, arrangements or agreements, whether formal or informal, whether in
writing or not, to which the Company is a party, with respect to which the
Company has any obligation or which are maintained, contributed to or sponsored
by the Company for the benefit of any current or former employee, officer or
director of the Company. The Company does not have any express or implied
commitment, whether legally enforceable or not, (1) to create, incur liability
with respect to, or cause to exist, any other employee benefit plan, program or
arrangement, (2) to enter into any contract or agreement to provide compensation
or benefits to any individual, or (3) to modify, change or terminate any Plan,
other than with respect to a modification, change or termination required by
ERISA or the Code.
(b) ABSENCE OF CERTAIN TYPES OF PLANS. None of the Plans is a
multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA)
(a "MULTIEMPLOYER PLAN") or a single employer pension plan (within the meaning
of Section 4001(a)(15) of ERISA) for which the Company or any Subsidiary could
incur liability under Section 4063 or 4064 of ERISA (a "MULTIPLE EMPLOYER
Plan"). None of the Plans provides for the payment of separation, severance,
termination or similar benefits to any Person or obligates the Company to pay
separation, severance, termination or similar benefits solely as a result of any
transaction contemplated by this Agreement or as a result of a "change in
control", within the meaning of such term under Section 280G of the Code. None
of the Plans provides for or promises retiree medical, disability or life
insurance benefits to any current or former employee, officer or director of the
Company. Each of the Plans is subject only to the Laws of the United States or a
political subdivision thereof.
(c) COMPLIANCE WITH APPLICABLE LAW. Each Plan is now and always has been
operated in accordance with the requirements of all applicable Law, including
ERISA and the Code, and all Persons who participate in the operation of such
Plans and all Plan "fiduciaries" (within the meaning of Section 3(21) of ERISA)
have always acted in accordance with the provisions of all applicable Law,
including ERISA and the Code. The Company has performed all obligations required
to be performed by it under, is not in any respect in default under or in
violation of, and has no knowledge of any default or violation by any party to,
any Plan. No Action is pending or, to the Knowledge of the Sellers, threatened
with respect to any Plan (other than claims for benefits in the ordinary course)
and no fact or event exists that could give rise to any such Action.
(d) QUALIFICATION OF CERTAIN PLANS. Each Plan that is intended to be
qualified under Section 401(a) of the Code or Section 401(k) of the Code has
received a favorable determination letter from the IRS that it is so qualified,
and each trust established in connection with any Plan that is intended to be
exempt from federal income taxation under Section 501(a) of the Code has
received a determination letter from the IRS that it is so exempt, and no fact
or event has occurred since the date of such determination letter from the IRS
to adversely affect the qualified status of any such Plan or the exempt status
of any such trust. Each trust maintained or contributed to by the Company that
is intended to be qualified as a voluntary employees' beneficiary association
and that is intended to be exempt from federal income taxation under Section
501(c)(9) of the Code has received a favorable determination letter from the IRS
that it is so qualified and so exempt, and no fact or event has occurred since
the date of such determination by the IRS to adversely affect such qualified or
exempt status.
(e) ABSENCE OF CERTAIN LIABILITIES AND EVENTS. There has been no
prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) with respect to any Plan. The Company has not incurred any
liability for any penalty or tax arising under Section 4971, 4972, 4980, 4980B
or 6652 of the Code or any liability under Section 502 of ERISA, and no fact or
event exists that could give rise to any such liability. The Company has not
incurred any liability under, arising out of or by operation of Title IV of
ERISA (other than liability for premiums to the Pension Benefit Guaranty
Corporation arising in the ordinary course), including any liability in
connection with (i) the termination or reorganization of any employee benefit
plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer
Plan or Multiple Employer Plan, and no fact or event exists that could give rise
to any such liability. No complete or partial termination has occurred within
the five years preceding the date hereof with respect to any Plan. No reportable
event (within the meaning of Section 4043 of ERISA) has occurred or is expected
to occur with respect to any Plan subject to Title IV of ERISA. No Plan had an
accumulated funding deficiency (within the meaning of Section 302 of ERISA or
Section 412 of the Code), whether
22
or not waived, as of the most recently ended plan year of such Plan. None of the
assets of the Company is the subject of any lien arising under Section 302(f) of
ERISA or Section 412(n) of the Code; the Company has not been required to post
any security under Section 307 of ERISA or Section 401(a)(29) of the Code; and
no fact or event exists which could give rise to any such lien or requirement to
post any such security.
(f) PLAN CONTRIBUTIONS AND FUNDING. All contributions, premiums or
payments required to be made with respect to any Plan have been made on or
before their due dates. All such contributions have been fully deducted for
income tax purposes and no such deduction has been challenged or disallowed by
any Governmental Authority, and no fact or event exists that could give rise to
any such challenge or disallowance. As of the Closing, no Plan that is subject
to Title IV of ERISA will have an "unfunded benefit liability" (within the
meaning of Section 4001(a)(18) of ERISA).
SECTION 3.20. LABOR MATTERS. (a) Neither the Company nor the Institution
is a party to any collective bargaining agreement or other labor union contract
applicable to persons employed by the Company or the Institution, and currently
there are no organizational campaigns, petitions or other unionization
activities seeking recognition of a collective bargaining unit which could
affect the Company; (b) there are no controversies, strikes, slowdowns or work
stoppages pending or, to the Knowledge of the Sellers, threatened between the
Company and its employees, and the Company has not experienced any such
controversy, strike, slowdown or work stoppage within the past three years; (c)
there are no unfair labor practice complaints pending against the Company or the
Institution before the National Labor Relations Board or any other Governmental
Authority which could have a Material Adverse Effect; (e) the Company is
currently in compliance with all applicable Laws relating to the employment of
labor, including those related to wages, hours, collective bargaining and the
payment and withholding of Taxes and other sums as required by the appropriate
Governmental Authority and has withheld and paid to the appropriate Governmental
Authority or is holding for payment not yet due to such Governmental Authority
all amounts required to be withheld from employees of the Company and is not
liable for any arrears of wages, Taxes, penalties or other sums for failure to
comply with any of the foregoing; (f) the Company has paid in full to all its
employees or adequately accrued for in accordance with GAAP all wages, salaries,
commissions, bonuses, benefits and other compensation due to or on behalf of
such employees; (g) there is no claim with respect to payment of wages, salary
or overtime pay that has been asserted or is now pending or threatened before
any Governmental Authority with respect to any Persons currently or formerly
employed by the Company; (h) the Company is not a party to, or otherwise bound
by, any consent decree with, or citation by, any Governmental Authority relating
to employees or employment practices; (i) there is no charge or proceeding with
respect to a violation of any occupational safety or health standard that has
been asserted or is now pending or threatened with respect to the Company; and
(j) there is no charge of discrimination in employment or employment practices,
for any reason, including age, gender, race, religion or other legally protected
category, which has been asserted or is now pending or threatened before the
United States Equal Employment Opportunity Commission, or any other Governmental
Authority in any jurisdiction in which the Company has employed or currently
employs any Person.
SECTION 3.21. KEY EMPLOYEES. Section 3.21 of the Disclosure Schedule
lists the name, place of employment, the current annual salary rates, bonuses,
deferred or contingent compensation and other like benefits paid or payable (in
cash or otherwise) in 2005, the date of employment and a description of the
position and job function of each current salaried employee, officer, director,
consultant or agent of the Company or any Subsidiary whose annual compensation
exceeded (or, in 2006, is expected to exceed) $75,000.
SECTION 3.22. STUDENT LISTS. The Sellers have delivered to the Purchaser
a list that is accurate and complete in all material respects identifying (a)
the number of students, and the names and educational programs of all students,
enrolled at the Institution as of the date hereof for the then current academic
period, and (b) the number of students, and the names and intended educational
programs of all students, enrolled at the Institution as of the date hereof for
future academic periods; provided, however, that such list shall include
personally identifiable information regarding any student only to the extent
permitted by the Family Educational Rights Privacy Act (20 U.S.C. 1232g) and the
implementing regulations at 34 C.F.R. ss. 99.2.
SECTION 3.23. CERTAIN INTERESTS. (A) No Seller or officer or director of
the Company and no relative or spouse (or relative of such spouse) who resides
with, or is a dependent of, any such Seller officer or director:
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(i) has any direct or indirect financial interest in any
competitor or supplier of the Company or the Business; PROVIDED,
HOWEVER, that the ownership of securities representing no more than one
percent of the outstanding voting power of any competitor or supplier
and that are also listed on any national securities exchange, shall not
be deemed to be a "financial interest" so long as the Person owning such
securities has no other connection or relationship with such competitor
or supplier;
(ii) owns, directly or indirectly, in whole or in part, or has
any other interest in, any tangible or intangible property that the
Company uses or has used in the conduct of the Business or otherwise; or
(iii) has outstanding any Indebtedness to the Company.
(b) None of the Sellers or the Company has any Liability of any nature
whatsoever to any officer, director or stockholder of the Company or to any
relative or spouse (or relative of such spouse) who resides with, or is a
dependent of, any such officer, director or stockholder.
SECTION 3.24. TAXES. (A) (i) All Tax Returns required to be filed by or
with respect to the Company have been timely filed; (ii) all Taxes required to
be shown on such Tax Returns or otherwise due in respect of the Company have
been timely paid; (iii) all such Tax Returns are true, correct and complete in
all material respects; (iv) no adjustment relating to such Tax Returns has been
proposed formally or informally by any Governmental Authority (insofar as either
relates to the activities or income of the Company or could result in liability
of the Company on the basis of joint and/or several liability) and, to the
Knowledge of the Sellers, no basis exists for any such adjustment; (v) there are
no pending or, to the Knowledge of the Sellers, threatened Actions for the
assessment or collection of Taxes against the Company; (vi) all sales and
license transactions between any Seller and the Company have been conducted on
an arm's-length basis; (vii) there are no Tax liens on any assets of the
Company; (viii) no Seller nor any Affiliate is a party to any agreement or
arrangement that would result, separately or in the aggregate, in the actual or
deemed payment by the Company of any "excess parachute payments" within the
meaning of Section 280G of the Code (without regard to Section 280G(b)(4) of the
Code); (ix) no acceleration of the vesting schedule for any property that is
substantially unvested within the meaning of the regulations under Section 83
will occur in connection with the transactions contemplated by this Agreement;
(x) the Company has not ever been a member of a consolidated, combined or
unitary group; (xi) the Company has not been a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code during
the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; (xii)
the Company has properly and timely withheld, collected and deposited all Taxes
that are required to be withheld, collected and deposited under applicable Law;
(xiii) the Company is not doing business in or engaged in a trade or business in
any jurisdiction in which it has not filed all required Tax Returns, and no
notice or inquiry has been received from any jurisdiction in which Tax Returns
have not been filed by the Company to the effect that the filing of Tax Returns
may be required; (xiv) the Company has not been at any time a member of any
partnership or joint venture or the holder of a beneficial interest in any trust
for any period for which the statute of limitations for any Tax has not expired;
and (xv) the Company is not subject to any accumulated earnings tax, personal
holding company Tax or similar Tax.
(b) (i) there are no outstanding waivers or agreements extending the
statute of limitations for any period with respect to any Tax to which the
Company may be subject; (ii) there are no requests for information currently
outstanding that could affect the Taxes of the Company; (iii) there are no
proposed reassessments of any property owned by the Company or other proposals
that could increase the amount of any Tax to which the Company would be subject;
(iv) no power of attorney that is currently in force has been granted with
respect to any matter relating to Taxes that could affect the Company; (v) the
Company (A) does not have an unrecaptured overall foreign loss within the
meaning of Section 904(f) of the Code, and (B) has not participated in or
cooperated with an international boycott within the meaning of section 999 of
the Code; and (vi) the Company does not have any (A) income reportable for a
period ending after the Closing but attributable to a transaction (E.G., an
installment sale) occurring in, or a change in accounting method made for, a
period ending on or prior to the Closing that resulted in a deferred reporting
of income from such transaction or from such change in accounting method (other
than a deferred intercompany transaction) or (B) deferred gain or loss arising
out of any deferred intercompany transaction.
(c) (i) Section 3.24 of the Disclosure Schedule lists all income,
information, franchise and similar Tax Returns (federal, state, local and
foreign) filed with respect to the Company for taxable periods ended on or after
January 1, 2001, indicates the most recent income, information, franchise or
similar Tax Return for each
24
relevant jurisdiction for which an audit has been completed or the statute of
limitations has lapsed, and indicates all Tax Returns that currently are the
subject of audit; (ii) the Sellers have delivered to the Purchaser correct and
complete copies of all federal, state and foreign income, information, franchise
and similar Tax Returns, examination reports, and statements of deficiencies
assessed against or agreed to by the Company since January 1, 2003; and (iii)
the Sellers have delivered to the Purchaser a true and complete copy of any
tax-sharing or allocation agreement or arrangement involving the Company and a
true and complete description of any such unwritten or informal agreement or
arrangement.
(d) The Company (i) has been an S corporation within the meaning of
Section 1361 of the Code (an "S-CORPORATION") at all times since December 31,
1986 and will continue to be an S-Corporation up to and until the Closing; (ii)
has paid all built-in gain taxes within the meaning of Section 1374 of the Code
that were required to be paid; and (iii) is not required to pay any taxes or
penalties that would have not been incurred had the Company been an
S-Corporation since its inception.
(e) On the Reference Statement of Net Current Assets, reserves and
allowances have been provided, and on the Closing Statement of Net Current
Assets, reserves and allowances will be provided, in each case adequate to
satisfy all Liabilities for Taxes relating to the Company for all taxable
periods through the Closing (without regard to the materiality thereof).
SECTION 3.25. INSURANCE. All material assets, properties and risks of
the Company are, and for the past five years have been, covered by valid and,
except for insurance policies that have expired under their terms in the
ordinary course, currently effective insurance policies or binders of insurance
(including general liability insurance, property insurance and workers'
compensation insurance) issued in favor of the Company, in each case with
responsible insurance companies, in such types and amounts and covering such
risks as are consistent with customary practices and standards of companies
engaged in businesses and operations similar to those of the Company.
SECTION 3.26. COMPLIANCE WITH TITLE IV PROGRAMS. (A) The Company and the
Institution are and, since January 1, 2003 (the "Compliance Date"), have been in
compliance in all material respects with any and all applicable Educational
Laws, including all Laws relating to Financial Assistance.
(b) Since the Compliance Date, each educational program offered by the
Institution for which the Institution provided or provides Financial Assistance
funding, including programs involving externships, internships or consortium
agreements, was and is an eligible program and in material compliance with all
Educational Laws, including the requirements of 34 C.F.R. ss. 668.8, and the
Institution has been in material compliance with the requirement to properly
measure the length of such educational program for purposes of disbursing the
Title IV Program funding to students enrolled in each such program.
(c) The facilities listed on Section 3.26(c) of the Disclosure Schedule
are and, since the Compliance Date, have been the only addresses at which all or
any portion of any of the Company's or the Institution's educational programs
have been offered, including any facilities at which more than 25% of any
educational program (as measured in credit hours) are or have been provided via
externships or internships. Except for any changes in address or changes in
location that do not result in the cessation of any educational instruction by
the Company or the Institution, neither the Company nor the Institution has
ceased instruction at or closed any facility, location or campus. The Company
and the Institution have complied with all Educational Laws related to any
termination of educational programs or any change of the location or campus
where educational programs are offered.
(d) To the Knowledge of the Sellers, there exists no fact or set of
facts with respect to the operation of the Institution prior to the Closing Date
that would reasonably be likely to have a negative effect on the ability of the
Institution to obtain (i) the U.S. DOE Pre-Closing Notice, or (ii) any approval
listed in Section 3.06 or Section 4.03 of the Disclosure Schedule.
(e) The Sellers have delivered to the Purchaser true and complete copies
of all material correspondence (excluding general correspondence routinely sent
to, or received from, any Educational
25
Agency or Governmental Authority) received from or sent by or on behalf of the
Company or the Institution to any Educational Agency or any Governmental
Authority to the extent such correspondence (i) was sent or received since the
Compliance Date or relates to any issue that remains pending, and (ii) relates
to (A) any notice that any Educational Approval is not in full force and effect
or that an event has occurred which constitutes or, with the giving of notice or
the passage of time or both, would constitute a material breach or violation
thereunder; (B) any notice that the Company, the Institution or any Affiliate,
employee, or agent of the Company or the Institution has violated or is
violating any Educational Law in any material respect, including any Law related
to the Title IV Programs, or any criterion, rule, standard, or other written
guidance of any applicable Accrediting Body, or any law, regulation, or
requirement related to maintaining and retaining in full force and effect any
and all Educational Approvals necessary for the existing operations of, and
receipt of Financial Assistance by, the Company or the Institution; (C) any
audits, program reviews, inquiries, investigations, or site visits conducted by
any Educational Agency, any guaranty agency, or any independent auditor
reviewing compliance by the Company or the Institution with any Educational Law
or Educational Approval; (D) the qualification of the Company, the Institution
or any Affiliate thereof for the receipt of Financial Assistance; (E) any
written notice of an intent to limit, suspend, terminate, revoke, cancel, not
renew, or condition the Educational Approvals of, or the provision of Financial
Assistance to, the Company, the Institution or to any of the Institution's
students; (F) any written notice of an intent or threatened intent to condition
the provision of Financial Assistance to the Company or the Institution on the
posting of a Letter of Credit or other surety in favor of U.S. DOE; (G) written
notice of an intent to provisionally certify the eligibility of the Company or
the Institution to participate in the Title IV Programs; or (H) the placement or
removal of the Company or the Institution on or from the reimbursement method of
payment or any method of payment other than the advance payment method under the
Title IV Programs.
(f) No principal, affiliate (as those terms are defined in 34 C.F.R.
Part 85), owner, stockholder or trustee of, or any other individual or entity
holding an ownership interest in the Company or the Institution, whether legal
or equitable, is or has been a principal, affiliate, owner, stockholder or
trustee or held an ownership interest, whether legal or equitable, in any other
institution (whether or not participating in the Title IV Programs) or any
third-party servicer (as that term is defined at 34 C.F.R. ss. 668.2). No Person
who exercises substantial control over the Company, the Institution or any
Affiliate of the Company (as the term "substantial control" is described under
34 C.F.R. ss. 668.174(c)(3)) or any member or members of such Person's family,
alone or together, exercises or exercised substantial control over another
institution or a third-party servicer that owes a liability for a violation of a
requirement of the Title IV Programs. No principal, affiliate, owner,
stockholder, trustee, or any other individual or entity holding an ownership
interest in the Company or the Institution has pled guilty to, has pled nolo
contendere to, or has been found guilty of, a crime involving the acquisition,
use, or expenditure of federal, state or local government funds or has been
judicially determined to have committed fraud or any other material violation of
law involving federal, state or local government funds. None of the Company, the
Institution or any Affiliate thereof that has the power, by contract or
ownership interest, to direct or cause the direction of the management of
policies of the Company or the Institution, has filed for relief in bankruptcy
or has entered against it an order for relief in bankruptcy. Neither the Company
nor the Institution knowingly employs, nor has either one of them knowingly
employed, any individual or entity in a capacity that involves the
administration or receipt of funds under the Title IV Programs, or contracted
with any institution or third-party servicer, which has been terminated under
Section 487 of the HEA for a reason involving the acquisition, use or
expenditure of federal, state or local government funds, or has been convicted
of, or has pled nolo contendere or guilty to, a crime involving the acquisition,
use or expenditure of federal, state or local government funds, or has been
administratively or judicially determined to have committed fraud or any other
material violation of law involving federal, state or local government funds.
(g) The Institution has complied with U.S. DOE requirements, as set
forth at 34 C.F.R. Section 668.14(b)(22), concerning the payments of
commissions, bonuses or other incentive payments to admission representatives,
agents and other Persons engaged in any student recruiting or admission
activities or in making decisions regarding the awarding of Title IV Program
funds for or on behalf of the Institution.
(h) The Institution has not derived more than 90% of its revenues (for
the fiscal years ending December 31, 2001; December 31, 2002 or December 31,
2003) from Title IV Program funds as determined in accordance with 34 C.F.R. ss.
600.5(d). Section 3.26(h) of the Disclosure Schedule contains a correct
statement of the percentage of revenue from such federal funding sources for
each of such fiscal years. Except as permitted by 34 C.F.R. ss. 600.5(d), as
such regulation has been interpreted and applied by the U.S. DOE prior to
Closing, the
26
Institution has not included revenue generated from institutional loans or
scholarships in any of the computations referenced in this subsection.
(i) Section 3.26(i) of the Disclosure Schedule sets forth: (a) the
Institution's final, official cohort default rates calculated by the U.S. DOE
under 34 C.F.R. Part 668 Subpart M for each of the 2002, 2003 and 2004 federal
fiscal years and (b) the Institution's Perkins Loan cohort default rates for the
most recent three fiscal years.
(j) Since the Compliance Date, the Institution has complied with all
applicable financial responsibility requirements, including the standards of
financial responsibility in 34 C.F.R. ss. 668.15 and 34 C.F.R. Part 668 Subpart
L, as applicable. Since the Compliance Date, the Institution has not been
required to, post a Letter of Credit or other form of surety for any reason,
including any requirement to post a Letter of Credit based on late refunds
pursuant to 34 C.F.R. ss. 668.173.
(k) Since the Compliance Date, the Institution has complied with the
limitations in 34 C.F.R. ss. 600.7 on the number of courses that an institution
may offer by correspondence or telecommunications, the number of students who
may enroll in such courses, the number of students who were incarcerated, and
the number of students who had neither a high school diploma nor the recognized
equivalent of a high school diploma.
(l) Since the Compliance Date, the Institution has not offered or
provided any educational programs that consist solely of instruction in English
as a second language.
(m) There are no surety bonds or other forms of security that the
Company or the Institution has been required to file since the Compliance Date
with any Educational Agency with respect to its state authorization, federal
eligibility, recruiter permits or other matters.
(n) Since the Compliance Date, the Institution has not been placed on
the reimbursement or cash monitoring payment methods of Title IV Program
funding.
(o) Since the Compliance Date, the Company and the Institution have not
received any written or oral notice of, and there is not any currently
unresolved investigation, review, audit, compliance review or site visit
relating to the Institution's participation in and administration of the Title
IV Programs or other Financial Assistance Programs or its compliance with the
requirements of the DOE or any other Educational Agency. The Sellers have
delivered to the Purchaser correct and complete copies of all annual federal
financial aid compliance audits and audited financial statements filed with the
DOE pursuant to 34 C.F.R. ss. 668.23 for all fiscal years ending after the
Compliance Date and has provided copies of all material correspondence related
to any draft or final investigative reports, program reviews, audits or
compliance reviews received from the DOE or any other Educational Agency since
the Compliance Date.
(p) Since the Compliance Date, the Institution has not been on
probation, warning or reporting status with any Educational Agency nor has it
been subject to or received notice of any proceeding by any Educational Agency
(i) to revoke, withdraw, deny, suspend, condition, refuse to renew or limit any
Educational Approval; (ii) alleging any material violation by the Company or the
Institution of any Educational Law or term or condition of any Educational
Approval or the failure to hold any required Educational Approval; or (iii)
refusing to approve any application submitted to an Educational Agency.
(q) Since the Compliance Date, except as disclosed in prior audits or
compliance reviews, each of which is disclosed on Section 3.26(q) of the
Disclosure Schedule, the Institution has complied in all material respects with
U.S. DOE requirements that no student receive Title IV Program funds prior to
the date for which such student was eligible for funds, or in any amount other
than the amount such student was eligible to receive.
(r) Since the Compliance Date, the Institution has complied in all
material respects with all Educational Agency and DOE requirements and
regulations including but not limited to requirements set forth at 34 C.F.R. ss.
668.22, relating to (i) fair and equitable refunds policy and (ii) the
calculation and timely repayment of federal and nonfederal funds.
27
(s) Since the Compliance Date, the Institution has complied in all
material respects with 34 C.F.R. ss. 668.164 and 34 C.F.R. ss. 668.165 relating
to the retention and timely return of student credit balances, and any and all
student credit balances required to be paid thereunder.
(t) Since the Compliance Date, all required reports have been prepared
and timely filed in material compliance with the applicable Educational
Agencies.
(u) Since the Compliance Date, the Institution's agents or employees
have possessed all permits and licenses required or otherwise necessary to
recruit students for admission to the Institution.
(v) Since the Compliance Date, the Institution has complied in all
material respects with 34 C.F.R. Part 62 Subpart F regarding its enrollment in,
and timely submission of foreign student information to, the Student and
Exchange Visitor Information System.
(w) The Sellers have delivered to the Purchaser correct and complete
copies of all written student complaints, including related correspondence, that
it has received from any current or former student, or received from any
Educational Agency in relation to any material student complaint, or sent by or
on behalf of the Company or the Institution in regard to any material student
complaint, since the Compliance Date. There are no unresolved student complaints
received by the Company or the Institution from any current or former student,
or from any Educational Agency, against the Company or the Institution.
SECTION 3.27. EDUCATIONAL APPROVALS. (A) Section 3.27(a) of the
Disclosure Schedule lists, with respect to the Company and the Institution, each
Educational Approval issued since the Compliance Date by an Educational Agency
to the Company or the Institution or with respect to any educational program(s)
offered by the Company or the Institution. Since the Compliance Date, the
Company, the Institution and each location thereof, and each program offered in
whole or in part by the Institution have maintained all Educational Approvals
necessary for the operation of, and receipt of Financial Assistance by, the
Company and the Institution. The Educational Approvals as listed on Section
3.27(a) of the Disclosure Schedule constitute all of the material Educational
Approvals necessary for the Company and the Institution to operate the Business,
including approvals necessary to offer each educational program and operate each
campus. Neither the Company nor the Institution has received written notice that
any material Educational Approval will not be renewed, and, to the Knowledge of
the Sellers, there is no basis for any such non-renewal. The Sellers have made
available to the Purchaser correct and complete copies of all material
Educational Approvals that have been issued to the Company and the Institution.
The Educational Approvals set forth on Section 3.27(a) of the Disclosure
Schedule are in full force and effect and since the Compliance Date, there has
been no proceeding for the suspension, limitation, revocation, termination or
cancellation of any Educational Approval listed on Section 3.27(a) of the
Disclosure Schedule, nor is any such proceeding pending or, to the Knowledge of
the Sellers, threatened.
SECTION 3.28. CERTAIN BUSINESS PRACTICES. None of the Sellers, the
Company or the Institution or any of their respective directors, officers,
agents, representatives or employees (in their capacity as directors, officers,
agents, representatives or employees) has: (a) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity in respect of the Business; (b) directly or indirectly, paid
or delivered any fee, commission or other sum of money or item of property,
however characterized, to any finder, agent, or other party acting on behalf of
or under the auspices of a governmental official or Governmental Authority, in
the United States or any other country, which is in any manner illegal under any
Law of the United States or any other country having jurisdiction; or (c) made
any other unlawful payment or given any other unlawful consideration in respect
of the Business.
SECTION 3.29. BROKERS. Except for Stifel, Nicolaus & Company,
Incorporated, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Ancillary Agreements based
upon arrangements made by or on behalf of the Sellers. The Sellers are solely
responsible for the fees and expenses of Stifel, Nicolaus & Company,
Incorporated.
SECTION 3.30. NO OTHER REPRESENTATIONS. None of the Sellers or their
respective representatives have made, or shall be deemed to have made, and none
of the Sellers is liable for or bound in any manner by, any
28
express or implied representations, warranties, guaranties, promises or
statements pertaining to the Business or any of the Assets or the transactions
contemplated hereby except as specifically set forth in this Agreement or the
Ancillary Agreements.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
As an inducement to the Sellers to enter into this Agreement, the
Purchaser hereby represents and warrants to the Sellers as follows:
SECTION 4.01. ORGANIZATION, AUTHORIZATION AND QUALIFICATION. (A) The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of New Jersey and has all necessary power and
authority to enter into this Agreement and the Ancillary Agreements to which the
Purchaser is a party, to carry out its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby. The Purchaser is
duly licensed or qualified to do business and is in good standing in each
jurisdiction which the properties owned or leased by it or the operation of its
business makes such licensing or qualification necessary, except to the extent
that the failure to be so licensed or qualified and in good standing would not
materially and adversely affect the ability of the Purchaser to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement and the Ancillary Agreements to which the Purchase is a party. The
execution and delivery by the Purchaser of this Agreement and the Ancillary
Agreements to which it is a party, the performance by the Purchaser of its
obligations hereunder and thereunder and the consummation by the Purchaser of
the transactions contemplated hereby and thereby have been duly authorized by
all requisite action on the part of the Purchaser. This Agreement has been, and
upon their execution the Ancillary Agreements to which the Purchaser is a party
shall have been, duly executed and delivered by the Purchaser, and (assuming due
authorization, execution and delivery by the other parties hereto and thereto)
this Agreement constitutes, and upon their execution such Ancillary Agreements
shall constitute, legal, valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their respective terms.
(b) To the knowledge of the Purchaser, there exists no fact or set of
facts with respect to the Purchaser that would reasonably be likely to have a
negative effect on the ability of the Institution to obtain (i) the U.S. DOE
Pre-Closing Notice or (ii) approval of the change in ownership by any
Educational Agency listed in Section 4.03 of the Disclosure Schedule.
SECTION 4.02. NO CONFLICT. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in Section 4.03, except as may result from any facts or
circumstances relating solely to the Sellers, the execution, delivery and
performance by the Purchaser of this Agreement and the Ancillary Agreements to
which the Purchaser is a party, as the case may be, do not and will not (a)
violate, conflict with or result in the breach of any provision of the
certificate of incorporation or by-laws of the Purchaser, (b) conflict with or
violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a default (or event that
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, any note,
bond, mortgage or indenture, contract, agreement, lease, license, permit,
franchise or other instrument or arrangement to which the Purchaser is a party,
which would materially and adversely affect the ability of the Purchaser to
carry out its obligations under, and to consummate the transactions contemplated
by, this Agreement or the Ancillary Agreements to which the Purchaser is a
party, as the case may be.
SECTION 4.03. REQUIRED CONSENTS. Except for the Required Consents or as
otherwise set forth on Section 4.03 of the Disclosure Schedule, the execution,
delivery and performance by the Purchaser of this Agreement and each Ancillary
Agreement to which the Purchaser is a party, as the case may be, is a party do
not and will not require any consent, approval, authorization or other order of,
action by, filing with, or notification to any Governmental Authority or
Educational Agency.
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SECTION 4.04. LITIGATION. No Action by or against the Purchaser is
pending or, to the knowledge of the Purchaser, threatened, that could affect the
legality, validity or enforceability of this Agreement, any Ancillary Agreement
or the consummation of the transactions contemplated hereby or thereby.
SECTION 4.05. FINANCING. The Purchaser has or will have available, prior
to the Closing, sufficient funds necessary to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements.
SECTION 4.06. BROKERS. Other than with respect to arrangements made by
or on behalf of the Purchaser for which the Purchaser shall be solely
responsible, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Ancillary Agreements.
SECTION 4.07. NO OTHER REPRESENTATIONS. None of the Purchaser or any of
its directors, officers, employees, agents or representatives has made, or shall
be deemed to have made, and the Purchaser is not liable for or bound in any
manner by, any express or implied representations, warranties, guaranties,
promises or statements pertaining to its business or any of its assets except as
specifically set forth in this Agreement or the Ancillary Agreements.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. CONDUCT OF BUSINESS PRIOR TO THE CLOSING. (A) Each of the
Sellers covenants and agrees that, except as described in Section 5.01(a) of the
Disclosure Schedule, between the date hereof and the time of the Closing, the
Company shall not conduct its business other than in the ordinary course and
consistent with the Company's prior practice. Without limiting the generality of
the foregoing, except as described in Section 5.01(a) of the Disclosure
Schedule, the Sellers shall cause the Company to (i) continue its advertising
and promotional activities, and pricing and purchasing policies, in accordance
with past practice; (ii) not shorten or lengthen the customary payment cycles
for any of its payables or receivables; (iii) use its reasonable best efforts to
(A) preserve intact its business organization and the business organization of
the Business, (B) keep available to the Purchaser the services of the employees
of the Company, (C) continue in full force and effect without material
modification all existing policies or binders of insurance currently maintained
in respect of the Company and the Business, and (D) preserve its current
relationships with Persons with which it has had significant business
relationships; (iv) exercise, but only after notice to the Purchaser and receipt
of the Purchaser's prior written approval, any rights of renewal pursuant to the
terms of any of the leases or subleases set forth in Section 3.16(b) of the
Disclosure Schedule which by their terms would otherwise expire; and (v) not
engage in any practice, take any action, fail to take any action or enter into
any transaction which could cause any representation or warranty of the Sellers
to be untrue or result in a breach of any covenant made by the Sellers in this
Agreement.
(b) Except as described in Section 5.01(b) of the Disclosure Schedule,
the Sellers covenant and agree that, between the date hereof and the Closing
Date, without the prior written consent of the Purchaser, none of the Sellers,
the Company or the Institution will not do any of the things specified in the
second sentence of Section 3.10 (including clauses (a) through (bb) thereof),
subject to the exceptions set forth therein.
SECTION 5.02. ACCESS TO INFORMATION. (A) From the date hereof until the
Closing, upon reasonable notice, the Sellers shall cause its officers,
directors, employees, agents, representatives, accountants and counsel, and
shall cause the Company and each of the Company's officers, directors,
employees, agents, representatives, accountants and counsel to: (i) afford the
officers, employees, agents, accountants, counsel, financing sources and
representatives of the Purchaser reasonable access, during normal business
hours, to the offices, properties, plants, other facilities, books and records
of the Company, including access to enter upon such properties, plants and
facilities to investigate and collect air, surface water, groundwater and soil
samples or to conduct any other type of environmental assessment, and to those
officers, directors, employees, agents, accountants and counsel of the Sellers
and the Company who have any knowledge relating to the Company or the Business
and (ii) furnish to the officers, employees, agents, accountants, counsel,
financing sources and representatives of the Purchaser such additional financial
and operating data and other information regarding the assets, properties,
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liabilities and goodwill of the Company and the Business (or legible copies
thereof) as the Purchaser may from time to time reasonably request.
(b) In order to facilitate the resolution of any claims made against or
incurred by the Sellers prior to the Closing, for a period of seven years after
the Closing, the Purchaser shall (i) retain the books and records relating to
the Business and the Company relating to periods prior to the Closing in a
manner reasonably consistent with the prior practice of the Company and (ii)
upon reasonable notice, afford the agents and representatives of the Sellers
reasonable access (including the right to make, at the Sellers' expense,
photocopies), during normal business hours, to such books and records.
(c) In order to facilitate the resolution of any claims made by or
against or incurred by the Purchaser, the Company or the Institution after the
Closing or for any other reasonable purpose, for a period of seven years
following the Closing, the Sellers shall (i) retain the books and records of the
Sellers which relate to the Business, the Company and the Institution and their
operations for periods prior to the Closing and which shall not otherwise have
been delivered to the Purchaser or the Company and (ii) upon reasonable notice,
afford the officers, employees, agents and representatives of the Purchaser or
the Company reasonable access (including the right to make photocopies, at the
expense of the Purchaser or the Company), during normal business hours, to such
books and records.
SECTION 5.03. CONFIDENTIALITY. (A) The terms of the Confidentiality
Agreement are incorporated herein by reference and shall continue in full force
and effect until the Closing, at which time such Confidentiality Agreement and
the obligations of the Purchaser under this Section 5.03 shall terminate. If
this Agreement is, for any reason, terminated prior to the Closing, the
Confidentiality Agreement shall continue in full force and effect in accordance
with its terms.
(b) Each of the Sellers agrees to, and shall cause his or her agents and
representatives to, keep confidential all nonpublic information in his or her
possession regarding the Company, the Institution and the Business (including
any information made available to such Seller pursuant to Section 5.02(b));
PROVIDED, HOWEVER, that none of the Sellers will be required to maintain as
confidential any information that (i) becomes generally available to the public
other than as a result of disclosure by any Seller or any of its agents or
representatives in breach of this Agreement; or (ii) is required to be disclosed
pursuant to the terms of a valid subpoena or order by any Governmental Authority
or Educational Agency or under any Law or other legal requirement; provided
FURTHER that, in the event that such Seller or any such agent or representative
becomes legally compelled to disclose any such information, (x) such Seller
shall provide the Purchaser with prompt written notice of such requirement so
that the Purchaser may seek a protective order or other remedy or waive
compliance with this Section 5.03 and (y) in the event that such protective
order or other remedy is not obtained or the Purchaser waives compliance with
this Section 5.03, furnish only that portion of such confidential information
which is legally required to be provided and exercise its best efforts to obtain
assurances that confidential treatment will be accorded such information.
SECTION 5.04. REGULATORY AND OTHER AUTHORIZATIONS; NOTICES AND CONSENTS.
(A) The Sellers shall cooperate fully with the Purchaser and use all
commercially reasonable efforts in good faith to obtain all Required Consents,
the U.S. DOE Pre-Closing Notice, and any other authorizations, consents, orders
and approvals (including any authorizations, consents, orders and approvals
listed in Section 4.03 of the Disclosure Schedule) that may be or become
necessary for its execution and delivery of, and the performance of its
obligations pursuant to, this Agreement and the Ancillary Agreements. Each party
hereto agrees to provide such information to Educational Agencies or the other
parties as such may require, in connection with their review of any related
application. The Sellers agree to cooperate with and to assist the Purchaser
prior to the Closing, and to provide any assistance reasonably requested by the
Purchaser after the Closing, to obtain or renew any Educational Approvals or any
other necessary authorizations and approvals from Governmental Authorities or
Educational Agencies with respect to the Business, including obtaining a U.S.
DOE Pre-Closing Notice; provided, however, that (i) the Principal Seller, on
behalf of himself and the other Sellers, shall have the right to review and
comment in advance regarding any pre-closing submissions to or filings with, and
to participate in any meetings with, any Educational Agency, and (ii) no such
submissions to, or filings or meetings with, any Educational Agency shall occur
unless the Principal Seller and the Purchaser have consulted with each other
regarding the subject matter of such submissions, filings or meetings.
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(b) The Sellers shall give promptly such notices to third parties and
use all commercially reasonable efforts, in good faith, to obtain such third
party consents and estoppel certificates as the Purchaser may reasonably deem
necessary in connection with the transactions contemplated by this Agreement and
the Ancillary Agreements; PROVIDED, HOWEVER, that none of the Sellers shall have
any obligation to give any guaranty or other consideration of any nature in
connection with any such consent or estoppel certificates.
(c) The Purchaser shall cooperate and use all commercially reasonable
efforts, in good faith, to assist the Sellers in giving such notices to third
parties and obtaining such third-party consents and estoppel certificates;
PROVIDED, HOWEVER, that the Purchaser shall have no obligation to give any
guarantee or other consideration of any nature in connection with any such
notice, consent or estoppel certificate or to consent to any change in the terms
of any agreement or arrangement that the Purchaser in its reasonable discretion
may deem adverse to the interests of the Purchaser or the Business.
(d) The Sellers and the Purchaser agree that, in the event that any
Required Consent or other authorization, consent, order or approval necessary or
desirable to preserve for the Business any right or benefit under any lease,
license, contract, commitment or other agreement or arrangement to which the
Company or the Institution is a party is not obtained prior to the Closing, the
Sellers will, subsequent to the Closing, cooperate with the Purchaser and use
all commercially reasonable efforts, in good faith, in attempting to obtain such
Required Consent or other authorization, consent, order or approval as promptly
thereafter as practicable. If such Required Consent or other authorization,
consent, order or approval cannot be obtained, each of the Sellers shall use his
or her reasonable best efforts to provide the Purchaser or the Company with the
rights and benefits of the affected lease, license, contract, commitment or
other agreement or arrangement for the term of such lease, license, contract or
other agreement or arrangement, and, if the Sellers provide such rights and
benefits, the Purchaser shall assume the obligations and burdens thereunder.
SECTION 5.05. NOTICE OF DEVELOPMENTS. Prior to the Closing, (a) the
Sellers shall promptly notify the Purchaser in writing of (i) all events,
circumstances, facts and occurrences arising subsequent to the date of this
Agreement that could reasonably be expected to result in any breach of a
representation, warranty or covenant of the Sellers in this Agreement or that
could have the effect of making any representation or warranty of the Sellers in
this Agreement untrue or incorrect in any respect and (ii) all other material
developments affecting the assets, Liabilities, business, financial condition,
operations, results of operations, customer or supplier relations, employee
relations, regulation, accreditation, projections or prospects of the Business
and (b) the Purchaser shall promptly notify the Sellers in writing of all
events, circumstances, facts and occurrences arising subsequent to the date of
this Agreement that could result in any breach of a representation, warranty or
covenant of the Purchaser in this Agreement or that could have the effect of
making any representation or warranty of the Purchaser in this Agreement untrue
or incorrect in any respect.
SECTION 5.06. NO SOLICITATION OR NEGOTIATION. The Sellers agree that
between the date of this Agreement and the earlier of (a) the Closing and (b)
the termination of this Agreement, none of the Sellers, the Company, any of its
Affiliates, officers or directors or any of their respective representatives or
agents will (i) solicit, initiate, consider, encourage or accept any other
proposals or offers from any Person (A) relating to any acquisition or purchase
of all or any portion of the capital stock of the Company or the Assets (other
than Inventory to be sold in the ordinary course of business consistent with
past practice) or (B) to enter into any merger, consolidation, business
combination, recapitalization, reorganization or other extraordinary business
transaction involving or otherwise relating to the Company or (ii) participate
in any discussions, conversations, negotiations and other communications
regarding, or furnish to any other Person any information with respect to, or
otherwise cooperate in any way with, assist or participate in, or facilitate or
encourage any effort or attempt by any other Person to seek to do any of the
foregoing. The Sellers immediately shall cease and cause to be terminated all
existing discussions, conversations, negotiations and other communications with
any Persons conducted heretofore with respect to any of the foregoing. The
Sellers shall notify the Purchaser promptly if any such proposal or offer, or
any inquiry or other contact with any Person with respect thereto, is made and
shall, in any such notice to the Purchaser, indicate in reasonable detail the
identity of the Person making such proposal, offer, inquiry or contact and the
terms and conditions of such proposal, offer, inquiry or other contact. The
Sellers agree not to, and to cause the Company not to, without the prior written
consent of the Purchaser, release any Person from, or waive any provision of,
any confidentiality or standstill agreement to which any Seller or the Company
is a party.
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SECTION 5.07. USE OF INTELLECTUAL PROPERTY. (A) The Sellers acknowledges
that, from and after the Closing, the Company Intellectual Property shall be
owned by the Company, that none of the Sellers shall have any rights in the
Company Intellectual Property and that none of the Sellers will contest the
ownership or validity of any rights of the Purchaser or the Company in or to the
Company Intellectual Property.
(b) From and after the Closing, none the Sellers shall use any of the
Company Intellectual Property or any of the Licensed Intellectual Property.
SECTION 5.08. RELEASE OF INDEMNITY OBLIGATIONS. The Sellers covenant and
agree, on or prior to the Closing, to execute and deliver to the Company, for
the benefit of the Company, a general release and discharge, in form and
substance satisfactory to the Purchaser, releasing and discharging the Company
from any and all obligations to indemnify any Seller or otherwise hold it
harmless pursuant to any agreement or other arrangement entered into prior to
the Closing.
SECTION 5.09. INTERCOMPANY ARRANGEMENTS. Prior to the Closing, the
Sellers shall cause any contract or arrangement that is disclosed (or should
have been disclosed) in Section 3.14(a)(v) of the Disclosure Schedule, other
than those contracts or arrangements set forth in Section 5.09 of the Disclosure
Schedule, to be terminated or otherwise amended to exclude the Company as a
party thereto.
SECTION 5.10. PAYMENTS ON BEHALF OF AFFILIATES. Payments made or
received by the Purchaser pursuant to Article II, Article VI or Article VIII
hereof shall, in appropriate circumstances, be made on behalf of, or received in
trust for the benefit of, the relevant Affiliate of the Purchaser. The Purchaser
may direct in writing any such payment to be made by or to the appropriate
Affiliate, and the Sellers shall comply with any such direction received at
least two Business Days prior to the date such payment is due.
SECTION 5.11. EMPLOYEE MATTERS. As of the date of the Closing, each
then-current employee of the Company (a "Transferred Employee") shall cease to
be covered by the Plans and shall be covered by the employee benefit plans of
Purchaser or its Affiliate. The medical, dental and health plans of the
Purchaser or its Affiliate applicable to each Transferred Employee (i) shall not
contain any exclusions for pre-existing conditions, (ii) shall cover as of the
date of the Closing each Transferred Employee who was covered by a comparable
Plan immediately prior to the date of the Closing and (iii) shall credit each
Transferred Employee for the plan year of the Company in which the date of the
Closing occurs with all deductibles and co-payments applicable to the portion of
such plan year occurring prior to the date of the Closing. In addition,
Purchaser or its Affiliate shall grant each Transferred Employee full credit for
all periods of employment with the Company for eligibility, vesting and accrual
purposes under the employee benefit plans of Purchaser or its Affiliate
applicable to such Transferred Employee (except that this sentence shall not
obligate Purchaser or any of its Affiliates to grant benefit accrual service
under any defined benefit pension plan for any period of employment occurring
prior to the date of the Closing); provided, however, that such crediting of
service shall not operate to duplicate any benefit to any such employee or the
funding for any such benefit.
SECTION 5.12. NON-COMPETITION. (A) Each of the Sellers agrees that, for
a period of five years after the Closing Date (the "Restricted Period"), without
the prior written consent of the Purchaser, such Seller shall not, directly or
indirectly, (i) engage in any activity anywhere in the Restricted Territory
involving the provision of post-secondary education services of the kind
provided by the Company, the Institution or the Business (a "Restricted
Business"), or (ii) own an interest in, manage, operate, join, control, lend
money or render financial or other assistance to, or participate in or be
connected with, as an officer, employee, partner, stockholder, agent or
consultant, any Restricted Business. For purposes of this Section 5.12(a), the
"Restricted Territory" means the State of Florida.
(b) As a separate and independent covenant, each of the Sellers agrees
with the Purchaser that, for a period of five years following the Closing, such
Seller will not in any way, directly or indirectly, interfere with or attempt to
interfere with any officers, employees, representatives or agents of the Company
or the Business, or induce or attempt to induce any of them to leave the employ
of the Purchaser, the Company or the Business or violate the terms of their
contracts, or any employment arrangements, with the Purchaser; PROVIDED,
HOWEVER, that the foregoing will not prohibit a general solicitation to the
public of general advertising.
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(c) The Restricted Period shall be extended by the length of any period
during which any Seller is in breach of the terms of this Section 5.12.
(d) Each of the Sellers acknowledges that the covenants set forth in
this Section 5.12 are an essential element of this Agreement and that, but for
their agreement to comply with these covenants, the Purchaser would not have
entered into this Agreement. Each of the Sellers acknowledges that (i) this
Section 5.12 constitutes an independent covenant that shall not be affected by
performance or nonperformance of any other provision of this Agreement by the
Purchaser, and (ii) $200,000 of the Purchase Price shall be consideration
allocable to such independent covenant. Each of the Sellers has independently
consulted with its counsel and after such consultation agrees that the covenants
set forth in this Section 5.12 are reasonable and proper.
SECTION 5.13. PAYMENT OBLIGATIONS. Immediately following the Closing,
the Sellers shall pay all outstanding amounts with respect to and satisfy in
full, and shall deliver to the Purchaser "payoff" letters or similar releases or
confirmations from third parties in forms reasonably satisfactory to the
Purchaser with respect to, the obligations set forth in Section 5.13(a) of the
Disclosure Schedule. The Sellers shall be responsible for all costs and expenses
related to the capital projects described in Section 5.13(b) of the Disclosure
Schedule.
SECTION 5.14. INVESTMENTS. The Sellers shall take all actions necessary
to distribute, prior to the Closing, to the Sellers all the right, title,
interest and obligation related to each investment listed in Section 5.14 of the
Disclosure Schedule.
SECTION 5.15. FURTHER ACTION. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable Law,
and to execute and deliver such documents and other papers, as may be required
to carry out the provisions of this Agreement and consummate and make effective
the transactions contemplated by this Agreement.
ARTICLE VI
TAX MATTERS
SECTION 6.01. INDEMNITY. (A) The Sellers agree to indemnify and hold
harmless, on a joint and several basis, the Purchaser and the Company against
Excluded Taxes and, except as otherwise provided in Section 6.04, against any
loss, damage, liability or expense, including reasonable fees for attorneys and
other outside consultants incurred in contesting or otherwise in connection with
any such Taxes.
(b) In the case of Taxes that are payable with respect to a Straddle
Period, the portion of any such Tax that is allocable to the portion of the
Straddle Period ending on the date of the Closing shall be:
(i) in the case of Taxes that are either (x) based upon or
related to income or receipts, or (y) imposed in connection with any
sale or other transfer or assignment of property (real or personal,
tangible or intangible) (other than conveyances pursuant to this
Agreement, as provided under Section 6.07), deemed equal to the amount
which would be payable if the taxable year ended on the date of the
Closing; and
(ii) in the case of Taxes imposed on a periodic basis with
respect to the assets of the Company or otherwise measured by the level
of any item, deemed to be the amount of such Taxes for the entire period
(or, in the case of such Taxes determined on an arrears basis, the
amount of such Taxes for the immediately preceding period), multiplied
by a fraction, the numerator of which is the number of calendar days in
the period ending on the date of the Closing and the denominator of
which is the number of calendar days in the entire Straddle Period. Any
credit or refund resulting from an overpayment of Taxes for a Straddle
Period shall be prorated based upon the method employed in this Section
6.01(b) taking into account the type of the Tax to which the refund
relates. In the case of any Tax based upon or measured by capital
(including net worth or long-term debt) or intangibles, any amount
thereof required to be allocated under this Section 6.01(b) shall be
computed by reference to the level of such items on the date of the
34
Closing. All determinations necessary to effect the foregoing
allocations shall be made in a manner consistent with prior practice of
the Company.
SECTION 6.02. RETURNS AND PAYMENTS. (A) From the date of this Agreement
through and after the Closing, the Sellers shall prepare and file or otherwise
furnish in proper form to the appropriate Governmental Authority (or cause to be
prepared and filed or so furnished) in a timely manner all Tax Returns relating
to the Company that are due on or before or relate to any taxable period ending
on or before the date of the Closing (and the Purchaser shall do the same with
respect to any taxable period ending after the Closing). Tax Returns of the
Company not yet filed for any taxable period that begins before the date of the
Closing shall be prepared in a manner consistent with past practices employed
with respect to the Company (except to the extent that counsel for the Sellers
or the Company renders a legal opinion that there is no reasonable basis in law
therefor or determines that a Tax Return cannot be so prepared and filed without
being subject to penalties). With respect to any such Tax Return required to be
filed by the Purchaser or the Sellers, the filing party shall provide the other
party and its authorized representatives with a copy of such completed Tax
Return and, if applicable, a statement certifying the amount of Tax shown on
such Tax Return that is allocable to such other party pursuant to Section
6.01(b), together with appropriate supporting information and schedules at least
20 Business Days prior to the due date (including any extension hereof) for the
filing of such Tax Return, and such other party and its authorized
representatives shall have the right to review and comment on such Tax Return
and statement prior to the filing of such Tax Return.
(b) The Sellers shall pay, or cause to be paid, when due and payable all
Taxes with respect to the Company for any Pre-Closing Period, and the Purchaser
shall so pay or cause to be paid Taxes for any Post-Closing Period (subject to
its right of indemnification from the Sellers by the date set forth in Section
6.05 for Taxes attributable to the portion of any Straddle Period pursuant to
Sections 6.01(a) and 6.01(b)).
SECTION 6.03. REFUNDS. Any Tax refund (including any interest with
respect thereto) relating to the Company for any Pre-Closing Period, other than
Tax refunds to the extent of the amount included in Working Capital, shall be
the property of the Sellers, and if received by the Purchaser or the Company
shall be paid over promptly to the Principal Seller for distribution to the
Sellers. Notwithstanding the foregoing, (a) any Tax refund (or equivalent
benefit to the Sellers through a reduction in Tax liability) for any Pre-Closing
Period arising out of the carryback of a loss of credit incurred by the Company
in any Post-Closing Period shall be the property of the Purchaser and, if
received by the Sellers, shall be paid over promptly to the Purchaser; and (b)
if a taxing authority subsequently disallows any refund with respect to which
the Sellers have received a payment pursuant to this Section 6.03, the Sellers
shall promptly pay (or cause to be paid) to the Purchaser the full amount of
such refund (including any interest with respect thereto).
SECTION 6.04. CONTESTS. (A) After the Closing, the Purchaser shall
promptly notify the Principal Seller in writing of any written notice of a
proposed assessment or claim in an audit or administrative or judicial
proceeding of the Purchaser or the Company which, if determined adversely to the
taxpayer, would be grounds for indemnification under this Article VI; provided,
however, that the failure to give such notice will not affect the Purchaser's
right to indemnification under this Article VI except to the extent, if any,
that, but for such failure, the Sellers could have avoided all or a portion of
the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding
that relates to Pre-Closing Periods, provided that, and only to the extent that,
the Sellers acknowledge in writing their liability under this Agreement to hold
the Purchaser and the Company harmless against the full amount of any adjustment
which may be made as a result of such audit or proceeding that relates to
Pre-Closing Periods, the Principal Seller shall have the right at his expense to
participate in and control the conduct of such audit or proceeding; the
Purchaser also may participate in any such audit or proceeding and, if the
Principal Seller does not assume the defense of any such audit or proceeding,
the Purchaser may defend the same in such manner as it may deem appropriate,
including settling such audit or proceeding after five days prior written notice
to the Principal Seller setting forth the terms and conditions of settlement.
Notwithstanding anything to the contrary contained in Section 8.05, in the event
that issues relating to a potential adjustment for which the Sellers have
acknowledged liability are required to be contested in the same audit or
proceeding as separate issues relating to a potential adjustment for which the
Purchaser would be liable, the Purchaser shall have the right, at its expense,
to control the audit or proceeding with respect to the latter issues.
35
(c) Notwithstanding anything to the contrary contained in Section 8.05,
with respect to issues relating to a potential adjustment for which both the
Sellers (as evidenced by its written acknowledgement under this Section 6.04)
and the Purchaser or the Company could be liable, (i) both the Principal Seller
and the Purchaser may participate in the audit or proceeding and (ii) the audit
or proceeding shall be controlled by that party which would bear the burden of
the greater portion of the sum of the adjustment and any corresponding
adjustments that may reasonably be anticipated for future taxable periods. The
principle set forth in this Section 6.04(c) also shall govern for purposes of
deciding any issue that must be decided jointly (including choice of judicial
forum) in situations in which separate issues are otherwise controlled under
this Article VI by the Purchaser and the Principal Seller.
(d) With respect to any Tax audit or proceeding for a taxable period
that begins before the date of the Closing, neither the Purchaser nor the
Principal Seller shall enter into any compromise or agree to settle any claim
pursuant to such audit or proceeding which would adversely affect the other
party for such taxable period or a subsequent taxable period without the written
consent of the other party, which consent may not be unreasonably withheld. The
Purchaser and the Principal Seller agree to cooperate, and the Purchaser agrees
to cause the Company to cooperate, in the defense against or compromise of any
claim in any such audit or proceeding.
SECTION 6.05. TIME OF PAYMENT. Payment by the Sellers of any amounts due
under this Article VI in respect of Taxes shall be made (a) at least three
Business Days before the due date of the applicable estimated or final Tax
Return required to be filed by the Purchaser on which is required to be reported
income for a taxable period ending after the date of the Closing for which the
Sellers are responsible under Sections 6.01(a) and 6.01(b) without regard to
whether the Tax Return shows overall net income or loss for such period or (b)
within three Business Days following an agreement between the Principal Seller
and the Purchaser that an indemnity amount is payable, an assessment of a Tax by
a taxing authority, or a "determination" as defined in Section 1313(a) of the
Code. If liability under this Article VI is in respect of costs or expenses
other than Taxes, payment by the Sellers of any amounts due under this Article
VI shall be made within five Business Days after the date when the Principal
Seller has been notified by the Purchaser that the Sellers have a liability for
a determinable amount under this Article VI and is provided with calculations or
other materials supporting such liability.
SECTION 6.06. TAX COOPERATION AND EXCHANGE OF INFORMATION. The Sellers
and the Purchaser shall provide each other with such cooperation and information
as either of them reasonably may request of the other (and the Purchaser shall
cause the Company to provide such cooperation and information) in (a) filing any
Tax Return, amended Tax Return or claim for refund, (b) determining a liability
for Taxes or a right to a refund of Taxes, (c) participating in or conducting
any audit or other proceeding in respect of Taxes, or (d) making representations
to or furnishing information to parties subsequently desiring to purchase any
part of the Assets, the Business or the Company from the Purchaser. Such
cooperation and information shall include providing copies of relevant Tax
Returns or portions thereof, together with related work papers and documents
relating to rulings or other determinations by taxing authorities. The Sellers
and the Purchaser shall make themselves (and their respective employees)
reasonably available on a mutually convenient basis to provide explanations of
any documents or information provided under this Section 6.06. Notwithstanding
anything to the contrary in Section 5.02, each Seller and the Purchaser shall
retain all Tax Returns, work papers and all material records or other documents
in its possession (or in the possession of its Affiliates) relating to Tax
matters of the Company for any taxable period that includes the date of the
Closing and for all prior taxable periods until the later of (i) the expiration
of the statute of limitations of the taxable periods to which such Tax Returns
and other documents relate, without regard to extensions, and (ii) six years
following the due date (without extension) for such Tax Returns. After such
time, before any Seller or the Purchaser shall dispose of any such documents in
his, her or its possession (or in the possession of Affiliates), the other
parties shall be given an opportunity, after 90 days prior written notice, to
remove and retain all or any part of such documents as such other party may
select (at such other party's expense). Any information obtained under this
Section 6.06 shall be kept confidential, except as may be otherwise necessary in
connection with the filing of Tax Returns or claims for refund or in conducting
an audit or other proceeding.
SECTION 6.07. CONVEYANCE TAXES. The Sellers shall be liable for and
shall hold the Purchaser harmless against, on a joint and several basis, any
Conveyance Taxes which become payable in connection with the transactions
contemplated by this Agreement. The Sellers, after the review and consent by the
Purchaser, shall file such applications and documents as shall permit any such
Conveyance Taxes to be assessed and paid on or prior to the Closing in
accordance with any available pre-sale filing procedure. The Purchaser shall
execute and deliver all instruments and certificates necessary to enable the
Sellers to comply with the foregoing. The Purchaser shall
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complete and execute a resale or other exemption certificate with respect to the
inventory items sold hereunder, and shall provide the Sellers with an executed
copy thereof.
SECTION 6.08. MISCELLANEOUS. (A) The Sellers and the Purchaser agree to
treat all payments made by either of them to or for the benefit of the other
(including any payments to the Company) under this Article VI, under other
indemnity provisions of this Agreement and for any misrepresentations or
breaches of warranties or covenants as adjustments to the Purchase Price or as
capital contributions for Tax purposes and that such treatment shall govern for
purposes hereof except to the extent that the Laws of a particular jurisdiction
provide otherwise, in which case such payments shall be made in an amount
sufficient to indemnify the relevant party on an after-Tax basis.
(b) All payments payable under any tax sharing agreement or arrangement
between any Seller and the Company for any taxable period ending on or prior to
the date of the Closing shall be calculated on a basis consistent with past
practice and shall be payable in full prior to the Closing. Any such tax sharing
agreement or arrangement between any Seller and the Company shall be terminated
prior to the Closing.
(c) Notwithstanding any provisions in this Agreement to the contrary,
the obligations of the Sellers to indemnify and hold harmless the Purchaser and
the Company pursuant to this Article VI, and the representations and warranties
contained in Section 3.24, shall terminate at the close of business on the 120th
day following the expiration of the applicable statute of limitations with
respect to the Tax liabilities in question (giving effect to any waiver,
mitigation or extension thereof).
(d) From and after the date of this Agreement, no Seller shall, without
the prior written consent of the Purchaser (which may, in its sole and absolute
discretion, withhold such consent), make, or cause or permit to be made, any Tax
election that would affect the Company.
(e) For purposes of this Article VI, "the Purchaser" and "a Seller,"
respectively, shall include each member of the affiliated group of corporations
of which it is or becomes a member (other than the Company, except to the extent
expressly referenced).
(f) The Purchaser shall be entitled to recover professional fees and
related costs that it may reasonably incur to enforce the provisions of this
Article VI.
(g) Notwithstanding anything to the contrary in this Agreement, the
rights and obligations of the parties with respect to indemnification for any
and all Tax matters shall be governed solely by this Article VI.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations
of the Sellers to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment or waiver, at or prior to the Closing, of
each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the Purchaser contained in this
Agreement shall have been true and correct when made and shall be true
and correct in all material respects as of the Closing, in each case
with the same force and effect as if made as of the Closing Date, other
than such representations and warranties as are made as of another date
which shall be true and correct in all material respects as of such
date; the covenants and agreements contained in this Agreement to be
complied with by the Purchaser on or before the Closing Date shall have
been complied with in all material respects, and the Sellers shall have
received a certificate from the Purchaser to such effect signed,
respectively, by a duly authorized officer thereof; and
(b) NO ORDER. No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law or Governmental Order
which is in effect and has the effect of making the
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transactions contemplated by this Agreement illegal or otherwise
restraining or prohibiting consummation of such transactions.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or waiver, at or prior to the
Closing, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the Sellers and contained in this
Agreement (i) that are not qualified by "materiality" or "Material
Adverse Effect" shall have been true and correct when made and shall be
true and correct in all material respects as of the Closing Date, with
the same force and effect as if made as of the Closing Date and (ii)
that are qualified by "materiality" or "Material Adverse Effect" shall
have been true and correct when made and shall be true and correct as of
the Closing Date with the same force and effect as if made as of the
Closing Date, other than, in each case, such representations and
warranties as are made as of another date, which shall be true and
correct as set forth in clause (i) or (ii), as applicable, as of such
date; the covenants and agreements contained in this Agreement to be
complied with by the Sellers on or before the Closing Date shall have
been complied with in all material respects, and the Purchaser shall
have received a certificate of the Sellers to such effect signed by a
duly authorized officer thereof;
(b) NO ORDER. No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law or Governmental Order
which is in effect and has the effect of making the transactions
contemplated by this Agreement illegal or otherwise restraining or
prohibiting consummation of such transactions;
(c) CONSENTS AND APPROVALS. The Sellers shall have delivered to
the Purchaser the Required Consents and the consent referenced in
Section 3.05 of the Disclosure Schedule, and the Purchaser shall have
received the U.S. DOE Pre-Closing Notice and any other pre-Closing
authorizations, consents, orders and approvals listed in Sections 3.06
and 4.03 of the Disclosure Schedule;
(d) TITLE INSURANCE FOR OWNED REAL PROPERTY. The Purchaser shall
receive, at the Purchaser's expense, from Attorney's Title Insurance
Fund, Inc. or any other company approved by the Purchaser (the "TITLE
COMPANY"), an owner's policy of title insurance, or irrevocable and
unconditional binder to issue the same, dated, or updated to, the date
of the Closing, insuring, or committing to insure, at its ordinary
premium rates, the Purchaser's good and marketable title in fee simple
to the Owned Real Property, subject only to the Permitted Encumbrances
and the items set forth in Schedule B to the lender's policy of title
insurance already in place with respect to the Owned Real Property, with
all standard printed exceptions waived, and containing such affirmative
endorsements as desired by the Purchaser, acting reasonably;
(e) SURVEY. The Purchaser shall have received, at the
Purchaser's expense, a currently dated as-built ALTA survey of the Owned
Real Property, prepared and certified to the Purchaser and the Title
Company by a certified or registered surveyor approved by the Purchaser.
Such survey shall (i) be in form and substance satisfactory to the
Purchaser and the Title Company; (ii) show any improvements, the
location of all easements, rights of way, sewer and water lines,
building lines and encroachments, the location of all required building
set-back lines and other dimensional regulations and any wetlands; and
(iii) show the location of all abutting or adjoining streets, alleys,
curb cuts and the like. In addition, the Purchaser shall have received a
Surveyor's Certificate executed by such surveyor, in form and substance
reasonably satisfactory to Purchaser;
(f) NO MATERIAL ADVERSE EFFECT. No event or events shall have
occurred, which, individually or in the aggregate, have, or would
reasonably be expected to have, a Material Adverse Effect; and
(g) OPINION. The Purchaser shall have received a regulatory
opinion from Drinker Biddle & Reath LLP, dated as of the Closing Date,
substantially in the form and to the effect of Exhibit 7.02(g) hereto.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. (A) The
representations and warranties of the Sellers contained in this Agreement and
the Ancillary Agreements to which any Seller is a party shall survive the
Closing for eighteen months from the Closing Date; provided, however, that (i)
the representations and warranties made pursuant to Sections 3.01
(Organization), 3.03 (Capitalization), 3.18 (Assets) and 3.29 (Brokers) shall
survive indefinitely, and (ii) the representations and warranties dealing with
Tax matters shall survive the Closing until 120 calendar days following the
expiration of the applicable statute of limitations governing such claims
(giving effect to any waiver or extension thereof). Neither the period of
survival nor the liability of the Sellers with respect to the Sellers'
representations and warranties shall be reduced by any investigation made at any
time by or on behalf of the Purchaser. If written notice of a claim has been
given prior to the expiration of the applicable representations and warranties
by the Purchaser to the Principal Seller, then the relevant representations and
warranties shall survive as to such claim until such claim has been finally
resolved.
(b) The representations and warranties of the Purchaser contained in
this Agreement and the Ancillary Agreements to which the Purchaser is a party
shall survive the Closing for eighteen months from the Closing Date. Neither the
period of survival nor the liability of the Purchaser with respect to such
party's representations and warranties shall be reduced by any investigation
made at any time by or on behalf of the Sellers. If written notice of a claim
has been given prior to the expiration of the applicable representations and
warranties by the Sellers to the Purchaser, then the relevant representations
and warranties shall survive as to such claim until such claim has been finally
resolved.
SECTION 8.02. INDEMNIFICATION BY THE SELLERS. (A) The Purchaser and its
Affiliates and the officers, directors, employees and agents of the foregoing
(each a "Purchaser Indemnified Party") shall be indemnified and held harmless,
on a joint and several basis, by the Sellers for and against any and all
Liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including reasonable attorneys' fees and expenses)
actually suffered or incurred by them (including any Action brought or otherwise
initiated by any of them) (hereinafter a "Loss") arising out of or resulting
from:
(i) the breach of any representation or warranty made by the
Sellers contained in any Acquisition Document, in each case without
giving effect to any materiality or "Material Adverse Effect" qualifiers
set forth therein;
(ii) the breach of any covenant or agreement by the Sellers
contained in any Acquisition Document;
(iii) Liabilities of the Company to the extent not reflected on
the Closing Statement of Net Current Assets, whether arising before or
after the Closing, arising from or relating to the ownership or actions
or inactions of the Company or the conduct of the Business prior to the
Closing; or
(iv) any and all Losses suffered or incurred by the Purchaser or
the Company by reason of or in connection with any claim or cause of
action of any third party to the extent arising out of any action,
inaction, event, condition, liability or obligation of any Seller or the
Company occurring or existing prior to the Closing.
(b) To the extent that the undertakings of the Sellers set forth in this
Section 8.02 may be unenforceable, the Sellers shall contribute the maximum
amount that it is permitted to contribute under applicable Law to the payment
and satisfaction of all Losses incurred by the Purchaser Indemnified Parties.
SECTION 8.03. INDEMNIFICATION BY THE PURCHASER. (A) Each of the Sellers
(each a "Seller Indemnified Party") shall be indemnified and held harmless by
the Purchaser for and against any and all Losses arising out of or resulting
from:
39
(i) the breach of any representation or warranty made by the
Purchaser contained in this Agreement or any of the Ancillary Agreements
to which the Purchaser is a party; or
(i) the breach of any covenant or agreement by the Purchaser
contained in this Agreement or any of the Ancillary Agreements to which
the Purchaser is a party.
(b) To the extent that the undertakings of the Purchaser set forth in
this Section 8.03 may be unenforceable, the Purchaser shall contribute the
maximum amount that it is permitted to contribute under applicable Law to the
payment and satisfaction of all Losses incurred by the Seller Indemnified
Parties.
SECTION 8.04. LIMITS ON INDEMNIFICATION. Notwithstanding anything to the
contrary contained in this Agreement, (a) an Indemnifying Party shall not be
liable for any claim for indemnification pursuant to Section 8.02(a)(i) or
8.03(a)(i), as applicable, unless and until the aggregate amount of
indemnifiable Losses which may be recovered from the Indemnifying Party equals
or exceeds $250,000, after which the Indemnifying Party shall be liable only for
those Losses in excess of $250,000, and (b) the maximum amount of indemnifiable
Losses which may be recovered from an Indemnified Party pursuant to Section
8.02(a)(i) or 8.03(a)(i), as applicable, shall be an amount equal to $7,500,000.
The provisions of this Section 8.04 shall not apply with respect to
indemnification for Taxes.
SECTION 8.05. INDEMNIFICATION PROCEDURES. An Indemnified Party shall
give the Indemnifying Party notice of any matter that an Indemnified Party has
determined has given or could give rise to a right of indemnification under this
Agreement, within 30 days of such determination, stating the amount of the Loss,
if known, and method of computation thereof, and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed or arises, provided, however, that the failure to provide such notice
to the Indemnifying Party shall not release or relieve the Indemnifying Party
from any of its obligations under this Article VIII except to the extent that
the Indemnifying Party is materially prejudiced by such failure and shall not
relieve the Indemnifying Party from any other obligation or Liability that it
may have to any Indemnified Party otherwise than under this Article VIII. The
obligations and Liabilities of the Indemnifying Party under this Article VIII
with respect to Losses arising from claims of any third party that are subject
to the indemnification provided for in this Article VIII ("Third Party Claims")
shall be governed by and be contingent upon the following additional terms and
conditions: if the Indemnifying Party acknowledges in writing its obligation to
indemnify the Indemnified Party hereunder against any Losses that may result
from such Third Party Claim, the Indemnifying Party shall be entitled to assume
and control the defense of such Third Party Claim at its expense and through
counsel of its choice if it gives written notice of its intention to do so to
the Indemnified Party within 10 days of the receipt of such notice from the
Indemnified Party; provided, however, that, if there exists or is reasonably
likely to exist a conflict of interest that would make it inappropriate, in the
judgment of the Indemnified Party, in its reasonable discretion, for the same
counsel to represent both the Indemnified Party and the Indemnifying Party, then
the Indemnified Party shall be entitled to retain its own counsel in each
jurisdiction for which the Indemnified Party determines counsel is required at
the expense of the Indemnifying Party, and provided, further, that in the event
of a Third-Party Claim relating to Taxes, the Indemnified Party shall be
entitled to retain control to the extent that the Third Party Claim involves
matters that are not indemnified hereunder or otherwise could increase the tax
liability for a period after the Closing Date. In the event that the
Indemnifying Party exercises the right to undertake any such defense against any
such Third Party Claim as provided above, the Indemnified Party shall cooperate
with the Indemnifying Party in such defense and make available to the
Indemnifying Party, at the Indemnifying Party's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the defense against any
such Third Party Claim, the Indemnifying Party shall cooperate with the
Indemnified Party in such defense and make available to the Indemnified Party,
at the Indemnifying Party's expense, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under the Indemnifying
Party's control relating thereto as is reasonably required by the Indemnified
Party. No such Third Party Claim may be settled by the Indemnifying Party
without the prior written consent of the Indemnified Party, which consent shall
not be unreasonably withheld. The Indemnifying Party will make promptly any
payment required to be made by it to the Indemnified Party under this Article
VIII. Notwithstanding the foregoing, if an Indemnified Party reasonably believes
an adverse determination with respect to the action, lawsuit, investigation,
proceeding or other claim giving rise to such claim for indemnification could
materially adversely affect any Educational Approval of the Institution or the
Institution's ability to participate fully
40
in the Title IV Programs, the Indemnified Party may, by notice to the
Indemnifying Party, assume the exclusive right to defend, compromise, or settle
such matter, provided that the Indemnifying Party shall not be bound by a
settlement effected without its consent (which may not be unreasonably
withheld).
SECTION 8.06. DISTRIBUTIONS FROM ESCROW ACCOUNT. In the event that (a)
the Principal Seller shall not have objected to the amount claimed by the
Purchaser for indemnification with respect to any Loss in accordance with the
procedures set forth in the Escrow Agreement or (b) the Principal Seller shall
have delivered notice of its disagreement as to the amount of any
indemnification requested by the Purchaser and either (i) the Principal Seller
and the Purchaser shall have, subsequent to the giving of such notice, mutually
agreed that the Sellers are obligated to indemnify the Purchaser for a specified
amount and shall have so jointly notified the Escrow Agent or (ii) a final
nonappealable judgment shall have been rendered by the court having jurisdiction
over the matters relating to such claim by the Purchaser for indemnification
from the Sellers and the Escrow Agent shall have received, in the case of clause
(i) above, written instructions from the Principal Seller and the Purchaser or,
in the case of clause (ii) above, a copy of the final nonappealable judgment of
the court, the Escrow Agent shall deliver to the Purchaser from the Escrow
Account any amount determined to be owed to the Purchaser under this Article
VIII in accordance with the Escrow Agreement. If and to the extent the Escrow
Amount is insufficient to cover any amount determined to be owed to the
Purchaser under this Article VIII, then the Sellers shall pay the amount of such
deficiency to the Purchaser by wire transfer in immediately available funds to a
bank account designated by the Purchaser.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.01. TERMINATION. This Agreement may be terminated at any time
prior to the Closing:
(a) by either the Sellers or the Purchaser if the Closing shall
not have occurred on or before August 1, 2006; PROVIDED, HOWEVER, that
the right to terminate this Agreement under this Section 9.01(a) shall
not be available to a party whose failure to fulfill any obligation
under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur on or prior to such
date;
(b) by the Purchaser, upon a material breach of any
representation, warranty, covenant or agreement of the Sellers set forth
in this Agreement, or if any representation or warranty of the Sellers
shall have become untrue, in either case such that the conditions set
forth in Section 7.02 would not be satisfied; PROVIDED, HOWEVER, that if
such breach is curable by the Sellers through the exercise of its
reasonable best efforts within 30 days of its receipt of the Purchaser's
written notice of such breach, then the Purchaser may not terminate this
Agreement pursuant to this Section 9.01(b) prior to the expiration of
such 30-day period;
(c) by the Sellers, upon a material breach of any
representation, warranty, covenant or agreement of the Purchaser set
forth in this Agreement, or if any representation or warranty of the
Purchaser shall have become untrue, in either case such that the
conditions set forth in Section 7.01 would not be satisfied; PROVIDED,
HOWEVER, that if such breach is curable by the Purchaser through the
exercise of its reasonable best efforts within 30 days of its receipt of
the Principal Seller's written notice of such breach, then the Sellers
may not terminate this Agreement pursuant to this Section 9.01(c) prior
to the expiration of such 30-day period;
(d) by either the Purchaser or the Sellers in the event that any
Governmental Authority shall have issued a Governmental Order or taken
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such Governmental Order
or other action shall have become final and nonappealable; or
(b) by the mutual written consent of the Sellers and the
Purchaser.
41
SECTION 9.02. EFFECT OF TERMINATION. (A) In the event of termination of
this Agreement as provided in Section 9.01, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto
relating to or arising out of this Agreement except (i) as set forth in Section
5.03 and Article X and (ii) that nothing herein shall relieve any party from
liability for any breach of this Agreement.
SECTION 9.03. AMENDMENT. This Agreement may not be amended or modified
except (a) by an instrument in writing signed by or on behalf of the parties
hereto or (b) by a waiver in accordance with Section 9.04.
SECTION 9.04. WAIVER. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of another party, (b) waive
any inaccuracies in the representations and warranties of another party
contained herein or in any document delivered by another party pursuant hereto
or (c) waive compliance with any of the agreements of another party or
conditions to such party's obligations contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by
the party or parties to be bound thereby. Any waiver of any term or condition
shall not be construed as a waiver of any subsequent breach or a subsequent
waiver of the same term or condition, or a waiver of any other term or condition
of this Agreement. The failure of any party to assert any of its rights
hereunder shall not constitute a waiver of any of such rights. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement
and the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
SECTION 10.02. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by nationally recognized overnight courier service, by telecopy, by
facsimile, by email or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 10.02):
(a) if to any Seller:
Richard I. Gouse
New England Institute of Technology, Inc.
2500 Post Road
Warwick, RI 02886-2266
Telephone: (401) 739-5000
Facsimile: (401) 738-8990
Email: rgouse@neit.edu
with a copy to:
Cameron & Mittleman LLP
56 Exchange Terrace
Providence, RI 02903
Telephone: (401) 331-5700
Facsimile: (401) 331-5787
Email: CCAMERON@CM-LAW.COM
-------------------
Attention: E. Colby Cameron, Esq.
42
(b) if to the Purchaser:
Lincoln Technical Institute
200 Executive Drive
West Orange, NJ 07052
Telephone: (973) 736-9340
Facsimile: (973) 243-0841
Email: DCarney@lincolntech.com
Attention: David F. Carney, Chairman and Chief
Executive Officer
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022-6069
Telephone: (212) 848-4000
Facsimile: (646) 848-8966
Email: cobrien@shearman.com
Attention: Clare O'Brien, Esq.
SECTION 10.03. PUBLIC ANNOUNCEMENTS. None of the Sellers shall make, or
cause to be made, any press release or public announcement in respect of this
Agreement or the transactions contemplated by this Agreement or otherwise
communicate with any news media without the prior written consent of the
Purchaser.
SECTION 10.04. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party. In addition, if any one
or more of the provisions contained in this Agreement is for any reason held to
be excessively broad as to duration, geographical scope, activity or subject, it
is to be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable Law as it then appears. 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 in an acceptable manner in order that the transactions contemplated by
this Agreement are consummated as originally contemplated to the greatest extent
possible.
SECTION 10.05. ENTIRE AGREEMENT. This Agreement, the Ancillary
Agreements and the Confidentiality Agreement constitute the entire agreement of
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and undertakings, both written and oral, between
the Sellers on the one hand, and the Purchaser, on the other hand, with respect
to the subject matter hereof and thereof.
SECTION 10.06. ASSIGNMENT. This Agreement may not be assigned by any
party hereto by operation of law or otherwise without the express written
consent of the other parties hereto (which consent may be granted or withheld in
the sole discretion of such parties); provided, that the Purchaser may assign
this Agreement or any of its rights and obligations hereunder to one or more
Affiliates of the Purchaser without the consent of the Principal Seller.
SECTION 10.07. NO THIRD PARTY BENEFICIARIES. Except for the provisions
of Article VIII relating to indemnified parties, this Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other Person, including any spouses or dependents of the Sellers or of
such Persons, any legal or equitable right, benefit or remedy of any nature
whatsoever, including any rights of employment for any specified period, under
or by reason of this Agreement.
SECTION 10.08. SPECIFIC PERFORMANCE. Each of the Sellers acknowledges
and agrees that the Purchaser would be irreparably damaged if any of the
provisions of this Agreement are not performed in accordance
43
with their specific terms and that any breach of this Agreement by the Sellers
could not be adequately compensated in all cases by monetary damages alone.
Accordingly, in addition to any other right or remedy to which the Purchaser may
be entitled, at law or in equity, it shall be entitled to enforce any provision
of this Agreement by a decree of specific performance and to temporary,
preliminary and permanent injunctive relief to prevent breaches or threatened
breaches of any of the provisions of this Agreement, without posting any bond or
other undertaking.
SECTION 10.09. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed entirely within that State. All
Actions arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state or federal court. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any state or federal
court sitting in the State of New York for the purpose of any Action arising out
of or relating to this Agreement brought by any party hereto, and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the transactions contemplated by this Agreement may not be enforced
in or by any of the above-named courts.
SECTION 10.10. WAIVER OF JURY TRIAL. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement or the transactions
contemplated by this Agreement. Each of the parties hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce that foregoing waiver and (b) acknowledges that neither it nor the
other parties hereto has been induced to enter into this Agreement and the
transactions contemplated by this Agreement, as applicable, by, among other
things, the mutual waivers and certifications in this Section 9.09.
SECTION 10.11. HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 10.12. COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
44
IN WITNESS WHEREOF, each Seller has executed this Agreement, and the
Purchaser has caused this Agreement to be executed by its officers thereunto
duly authorized, as of the date first written above.
LINCOLN TECHNICAL INSTITUTE, INC.
By: /s/ DAVID F. CARNEY
-------------------------------------
Name: David F. Carney
Title: Chairman and Chief
Executive Officer
/s/ RICHARD I. GOUSE
-------------------------------------
Richard I. Gouse
THE CAROLYN BETH GOUSE IRREVOCABLE TRUST
By: /s/ ANDREW T. GOUSE
-------------------------------------
Name: Andrew T. Gouse
Title: Trustee
/s/ ANDREW T. GOUSE
-------------------------------------
Andrew T. Gouse
/s/ SETH KURN
-------------------------------------
Seth Kurn
/s/ STEVEN L. MELTZER
-------------------------------------
Steven L. Meltzer