Exhibit 10.24
EXECUTION COPY
FIRST AMENDMENT
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TO FIRST AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (the "First Amendment"), is entered into this 17th day of June, 2003,
by and among Nobel Learning Communities, Inc., formerly Nobel Education
Dynamics, Inc., a Delaware corporation (the "Company") and the individuals
and/or entities that are parties to the Original Agreement (as defined below).
B A C K G R O U N D
WHEREAS, the Company and certain other individuals and/or entities are
parties to a First Amended and Restated Registration Rights Agreement, dated as
of June 30, 1998 (the "Original Agreement");
WHEREAS, on the date hereof, the Company and certain investors entered into
a Series E Convertible Preferred Stock Purchase Agreement (the "Series E
Purchase Agreement"); and
WHEREAS, in connection with the execution of the Series E Purchase
Agreement, the Company and the parties to the Original Agreement desire to amend
the Original Agreement as set forth herein.
NOW, THEREFORE, in order to implement the foregoing and in consideration of
the mutual agreements contained herein and the Original Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the other parties hereto, intending to be legally
bound hereby, agree as follows:
1. Section 4(c). Section 4(c) of the Original Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) The Company may not include in any registration statement referred to
in this Section 4 any shares of Common Stock to be sold for the account of
any person not entitled as of June 17, 2003 to registration rights with
respect to such shares except for the shares of Common Stock to be issued
to persons purchasing such shares in connection with the Company's private
placement of 1,000,000 shares of Common Stock as described in the Company's
Private Placement Offering memorandum dated February 15, 1996, all of which
persons have brokerage accounts with Gilder, Gagnon, Howe & Co at the
closing of such transaction (collectively, the "Gilder Shares"). The
Company may include in any registration requested pursuant to this Section
4 hereof any shares of Common Stock for sale for its own account or for the
account of any other person entitled to "piggy-back" or "incidental rights"
as of June 17, 2003, provided that such inclusion shall not affect the
number of shares of Restricted Stock that can be sold in the related
offering. In connection with an underwritten offering, if the managing
underwriter advises the Company in writing that in its opinion the number
of shares of Restricted Stock requested by the holders of Restricted Stock
to be registered exceeds the number which can be sold in such offering, the
Company shall include in such registration statement the number of shares
of Restricted Stock that, in the opinion of the managing underwriter, can
be
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sold as follows: (i) first, the Restricted Stock requested to be
registered, pro rata among the holders of Restricted Stock that have
requested their Restricted Stock to be registered, (ii) second, Common
Stock requested to be registered by holders of existing registration rights
as of June 17, 2003 and (iv) third, any other Common Stock requested to be
included in such registration. Except for registration statements on Form
S-4, S-8 or any successor thereto, registration statements registering the
Gilder Shares and/or securities to be issued by the Company to the seller
or sellers in connection with an acquisition by the Company and
registration statements required to be filed for holders of Common Stock
who, as of June 17, 2003, are entitled to "demand" registration rights, the
Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of
other stockholders, from the date of receipt of a notice from requesting
holders pursuant to this Section 4 until the completion of the period of
distribution of the registration contemplated thereby, as described in
Section 7 herein."
2. Section 5. Section 5(a) of the Original Agreement is hereby amended by
inserting the following after the last sentence:
"Notwithstanding the provisions of this Section 5(a), if the registration
was initiated by the Company at the request of a person or persons entitled
to demand rights as of the date hereof exercising such demand rights,
priority in underwriter cutbacks with respect to such registration shall be
governed by the provisions of their particular agreement providing for such
demand rights, provided that the holders of Restricted Stock that have
requested inclusion of their Restricted Stock to be included therein shall
have priority over any other persons holding securities requested to be
included in such registration."
3. Sections 5 and 6. In Sections 5 and 6, all references to "June 30,
1998" are deleted and replaced with "June 17, 2003."
4. Effect of First Amendment. In all other respects, the Original
Agreement, as amended hereby, remains in full force and effect as written.
5. Counterparts. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This document may also be
delivered by facsimile transmission with the same force and effect as if
originally executed copies of this document were delivered to all parties.
6. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to Registration Rights Agreement as of the date first written above.
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ John R. Frock
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Name: John R. Frock
Title: Vice Chairman
ALLIED CAPITAL CORPORATION
By: /s/ Daniel L. Russell
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Name: Daniel L. Russell
Title: Principal