FIRST AMENDMENT TO THE EMPLOYEE MATTERS AGREEMENT
Exhibit 10.02
FIRST AMENDMENT
TO THE
WHEREAS, New Xxxxx Holdings, Inc., a Delaware corporation (“New Xxxxx”), Xxxxx Holdings, Inc., a Delaware corporation (“Sally”) (New Xxxxx and Xxxxx, collectively the “Xxxxx Parties”), Xxxxxxx-Xxxxxx Company, a Delaware corporation (“Xxxxxxx-Xxxxxx”), and New Aristotle Holdings, Inc., a Delaware corporation (“New Xxxxxxx-Xxxxxx”) (Xxxxxxx-Xxxxxx and New Xxxxxxx-Xxxxxx, collectively the “Xxxxxxx-Xxxxxx Parties”), entered into an Employee Matters Agreement (the “Agreement”), dated as of June 19, 2006;
WHEREAS, the Xxxxx Parties and the Xxxxxxx-Xxxxxx Parties desire to amend the stock option adjustment provisions in the Agreement to reflect the manner in which the stock of Xxxxxxx-Xxxxxx, New Xxxxx and New Xxxxxxx-Xxxxxx are expected to trade on the New York Stock Exchange in connection with the transactions described in the Separation Agreement entered into by the Xxxxx Parties and the Xxxxxxx-Xxxxxx Parties, dated as of June 19, 2006; and
WHEREAS, Section 8.06 of the Agreement provides that the Agreement cannot be amended except by a written agreement executed by the Xxxxx Parties and the Xxxxxxx-Xxxxxx Parties; provided, that, unless the Investment Agreement (as such term is defined in the Agreement) shall have been terminated, any such amendment shall be subject to the prior written consent of CDRS Acquisition LLC (“Investor”), which consent shall not be unreasonably withheld, conditioned or delayed;
NOW, THEREFORE, the Agreement is hereby amended in the following respects:
1. Section 1.05 of the Agreement hereby is amended in its entirety to read as follows:
1.05 “Xxxxxxx-Xxxxxx Pre-Distribution Stock Price” means the average of the high and low trading prices per share of Xxxxxxx-Xxxxxx Common Stock on the Distributions Date.
2. Section 1.15 of the Agreement hereby is amended in its entirety to read as follows:
1.15 “New Xxxxxxx-Xxxxxx Post-Distribution Stock Price” means the average of the high and low trading prices per share of New Xxxxxxx-Xxxxxx Common Stock on the first full Business Day after the Distributions Date, or such other per share value as the Board of Directors of Xxxxxxx-Xxxxxx shall determine to be appropriate.
3. Section 1.17 of the Agreement hereby is amended in its entirety to read as follows:
1.17 “New Xxxxx Post-Distribution Stock Price” means the average closing price per share of New Xxxxx Common Stock over the first five full Business Days after the Distributions Date.
4. Section 4.04(a) of the Agreement hereby is amended in its entirety to read as follows:
4.04 Equity Compensation Plans.
(a) Xxxxxxx-Xxxxxx Options. Each Xxxxxxx-Xxxxxx Option held by an Xxxxxxx-Xxxxxx Employee, Former Xxxxxxx-Xxxxxx Employee, member or former member of the Xxxxxxx-Xxxxxx Board of Directors (a “Director”), Xxxxx Employee or Former Xxxxx Employee that is outstanding immediately before the AC Effective Time shall be converted into a New Xxxxx Option. Each New Xxxxx Option shall have the same terms and conditions as the corresponding Xxxxxxx-Xxxxxx Option to which it relates and shall continue to be subject to the same terms and conditions as the applicable Xxxxxxx-Xxxxxx Option Plan; provided, however, that for purposes of the New Xxxxx Options, unless the context otherwise requires, all references to “Xxxxxxx-Xxxxxx” therein shall be deemed to be to “New Xxxxx” and all references to Xxxxxxx-Xxxxxx Common Stock shall be deemed to be to New Xxxxx Common Stock. For the avoidance of doubt, at no time will an Xxxxxxx-Xxxxxx Option be deemed to pertain to “New Xxxxxxx-Xxxxxx LLC” (as defined in the Investment Agreement). Xxxxxxx-Xxxxxx and New Xxxxx shall each take such actions as may be necessary to effectuate the provisions of this Section.
5. This Amendment will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to choice of law principles thereof).
6. Except as specifically provided in this Amendment, all other provisions of the Agreement shall be in full force and effect.
7. This Amendment may be executed in separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this agreement to be executed in their names by a duly authorized officer as of October 3, 2006.
NEW XXXXX HOLDINGS, INC. | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx | ||
Title: President | ||
XXXXX HOLDINGS, INC. | ||
By: | /s/ Xxxx Xxxxxxxxxxxx | |
Name: Xxxx Xxxxxxxxxxxx | ||
Title: President | ||
XXXXXXX-XXXXXX COMPANY | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx | ||
Title: Senior Vice President, General Counsel and Secretary | ||
NEW ARISTOTLE HOLDINGS, INC. | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx | ||
Title: President |
By its signature below, the undersigned hereby consents to this amendment:
CDRS ACQUISITION LLC | ||
By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name: Xxxxxxx X. Xxxxxxx | ||
Title: President |
[Signature Page to First Amendment to the Employee Matters Agreement]
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