FIRST AMENDMENT TO THE SEPARATION AGREEMENT
Exhibit 2.01
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 a Separation Agreement (the “Agreement”), dated as of June 19, 2006;
WHEREAS, the Xxxxx Parties and the Xxxxxxx-Xxxxxx Parties desire to amend certain provisions defining terms used in the Agreement; and
WHEREAS, Section 8.07 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. The definition of “Xxxxx Liabilities” in Section 1.01(a) of the Agreement hereby is amended in its entirety to read as follows:
“Xxxxx Liabilities” means (a) all Liabilities of any member of the Xxxxx Group under, or for which any member of the Xxxxx Group is expressly made responsible pursuant to, any Transaction Agreement or the Investment Agreement to which it is or becomes a party, including the breach by any member of the Xxxxx Group of any agreement or covenant contained therein that does not by its express terms expire at or prior to the Distributions Time; (b) all Liabilities of any member of the Xxxxx Group to the extent based upon, arising out of or resulting from the Xxxxx Business; (c) all Liabilities of any member of the Xxxxxxx-Xxxxxx Group to the extent based upon, arising out of or resulting from the Xxxxx Business; and (d) all Liabilities to the extent based upon, arising out of or resulting from the Subsidiary LLC Conversions, in the case of each of clauses (a) through (d), regardless of whether such Liability existed prior to, at or after the Distributions Time.
2. Section 1.01(a) of the Agreement hereby is amended to include the following definition in the appropriate alphabetical order:
“Subsidiary LLC Conversions” has the meaning set forth in the Investment Agreement.
3. Section 2.02 of the Agreement is hereby amended in its entirety to read as follows:
Section 2.02 Capital Structure of New Xxxxxxx-Xxxxxx. After the transactions described in Sections 3.1(a), (b), (c) and (d) of the Investment Agreement and on Schedule 2.01 of this Agreement are effected and prior to the Distributions Time, if necessary, the Xxxxx Parties and the Xxxxxxx-Xxxxxx Parties shall cause (a) the number of authorized shares of New Xxxxxxx-Xxxxxx Common Stock to equal or exceed the number of shares of New Xxxxx Common Stock issued (including treasury shares held by New Xxxxx) as of the New Xxxxx Record Date and (b) the number of shares of New Xxxxxxx-Xxxxxx Common Stock issued and outstanding as of the New Xxxxx Record Date to be increased to equal the number of shares of New Xxxxx Common Stock issued and outstanding as of the New Xxxxx Record Date.
4. Section 2.04(b) of the Agreement is hereby amended in its entirety to read as follows:
Effective immediately prior to the Xxxxxxx-Xxxxxx Contribution, all intercompany receivables, payables and loans (other than any amounts owed under the Investment Agreement, the Trade Payables and the Transaction Payables) between the members of the Xxxxx Group, on the one hand, and the members of the Xxxxxxx-Xxxxxx Group, on the other hand, shall, except as provided in Section 2.04(c), automatically be cancelled. All Trade Payables shall be promptly paid when due. All Transaction Payables shall be paid as provided in this Agreement and the Investment Agreement.
5. Section 3.03 of the Agreement is hereby amended in its entirety to read as follows:
Subject to the terms and conditions of this Agreement, at or prior to the Distributions Time, New Xxxxx shall deliver to the Distributions Agent for the benefit of each record holder of New Xxxxx Common Stock on the New Xxxxx Record Date (or, if applicable, any transferee of such holder that purchased such holder’s shares in the “regular way” market), (a) the Distribution Shares (which shall represent all of the outstanding shares of New Xxxxxxx-Xxxxxx Common Stock) and (b) the Distribution Cash. New Xxxxx shall cause the transfer agent for the shares of New Xxxxxxx-Xxxxxx Common Stock to instruct the Distributions Agent to hold in trust the appropriate number of such shares of New Xxxxxxx-Xxxxxx Common Stock for each holder of record of New Xxxxx Common Stock as of the New Xxxxx Record Date (or, if applicable, any transferee of such holder that purchased such holder’s shares in the “regular way” market), and the Distributions Agent shall hold in trust the Cash Distribution for such stockholders. The Distributions Agent Agreement shall require the Distributions Agent to transfer to New Xxxxx the amount of all interest and other proceeds from the investment of the Distribution Cash promptly after the Distributions are effected pursuant to Section 3.04, and New Xxxxx shall, promptly after receipt thereof, make a cash payment to New Xxxxxxx-Xxxxxx equal to 62% of such interest and other proceeds.
6. 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).
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7. Except as specifically provided in this Amendment, all other provisions of the Agreement shall remain in full force and effect.
8. 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 amendment 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 Separation Agreement]
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