SECURITIES PURCHASE AGREEMENT between Blesbok LLC, Allied Investments, LP, and Allied Capital Corporation Dated as of March 31, 2006
Exhibit 99.1
EXECUTION VERSION
between
Blesbok LLC,
Allied Investments, LP,
and
Allied Capital Corporation
Dated as of March 31, 2006
TABLE OF CONTENTS
| 1. | Sale and Purchase of the Securities | |||
| 1.1 | Sale and Purchase of the Securities | |||
| 1.2 | Closing | |||
| 2. | Representations and Warranties of Sellers | |||
| 2.1 | Authorization, etc. | |||
| 2.2 | Title; Warrant | |||
| 2.3 | No Conflicts, etc. | |||
| 2.4 | Status | |||
| 2.5 | Consents | |||
| 2.6 | Brokers | |||
| 2.7 | Limitation on Representations and Warranties | |||
| 3. | Representations and Warranties of Purchaser | |||
| 3.1 | Authorization, etc. | |||
| 3.2 | No Conflicts, etc. | |||
| 3.3 | Status | |||
| 3.4 | Consents | |||
| 3.5 | Purchase for Investment | |||
| 3.6 | No Brokers | |||
| 3.7 | Limitation on Representations and Warranties | |||
| 4. | Certain Covenants | |||
| 4.1 | Confidentiality | |||
| 4.2 | Publicity | |||
| 4.3 | Further Assurances | |||
| 4.4 | Indemnification | |||
| 4.5 | Assignment and Assumption of the Ancillary Rights | |||
| 5. | [Reserved] | |||
6. |
[Reserved] | |||
7. |
Definitions | |||
| 7.1 | Terms Generally | |||
| 7.2 | Certain Terms | |||
8. |
Miscellaneous | |||
| 8.1 | Expenses | |||
| 8.2 | Notices | |||
| 8.3 | Jurisdiction | |||
| 8.4 | Governing Law | |||
| 8.5 | Binding Effect | |||
| 8.6 | Assignment | |||
| 8.7 | No Third Party Beneficiaries | |||
| 8.8 | Amendment; Waivers, etc. | |||
| 8.9 | Entire Agreement | |||
| 8.10 | Severability | |||
| 8.11 | Headings | |||
| 8.12 | Counterparts | |||
| 8.13 | Survival of Representations and Warranties, etc. | |||
This SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of March 31, 2006, is
entered into between Blesbok LLC, a Delaware limited liability company (the “Purchaser”),
Allied Investments, LP, a Delaware limited partnership and successor-in-interest to Allied
Investment Corporation, a Maryland corporation (“Allied Investments”), and Allied Capital
Corporation, a Maryland corporation and successor-in-interest to Allied Capital Corporation II, a
Maryland corporation (“Allied”, and together with Allied Investments, the “Sellers”
and each a “Seller”).
W I T N E S S E T H
WHEREAS, Sellers wish to sell to Purchaser, and Purchaser wishes to purchase from Sellers the
securities of Nobel Learning Communities, Inc., a Delaware corporation (the “Company”)
listed on Schedule A hereto (collectively, the “Securities”),together with all
rights and benefits associated with the Securities under the agreements listed on Schedule
A hereto (the “Ancillary Rights”), on the terms and conditions and for the
consideration described in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and
warranties made herein and of the mutual benefits to be derived herefrom, the parties hereto agree
as follows:
1. Sale and Purchase of the Securities.
1.1 Sale and Purchase of the Securities. Subject to the terms and conditions hereof,
Sellers hereby sell and assign to Purchaser, and Purchaser hereby purchases and accepts from
Sellers, the Securities and the Ancillary Rights, for an aggregate purchase price of Three Million
Five Hundred Fifty-eight Thousand Three Hundred Eighty-five Dollars ($3,558,385) (the “Purchase
Price”), payable in cash at the Closing in the manner set forth in Section 1.2. The Purchase
Price shall be allocated amongst the Securities as set forth in Schedule A attached hereto.
1.2 Closing. The closing of the sale of the Securities and the Ancillary Rights by
Sellers to Purchaser and the purchase of the Securities and the Ancillary Rights by Purchaser from
Sellers as contemplated by Section 1.1 (the “Closing”) shall take place simultaneously with
the execution and delivery of this Agreement (the “Closing Date”). At the Closing:
(a) Sellers shall deliver or cause to be delivered to Purchaser, free and clear of any
Liens, the certificates representing the Securities duly endorsed or accompanied by stock
powers or other instruments of transfer duly executed for transfer to Purchaser; and
(b) Purchaser shall pay to Sellers the Purchase Price by wire transfer of immediately
available funds to the account(s) of Sellers designated in writing to Purchaser at least
three Business Days prior to the Closing Date.
2. Representations and Warranties of Sellers.
Each Seller represents and warrants to Purchaser as follows:
2.1 Authorization, etc. Such Seller has full corporate or partnership power and
authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the purchase and sale of the Securities and the Ancillary Rights contemplated hereby.
The execution, delivery and performance of this Agreement by such Seller, and the consummation of
the purchase and sale of the Securities and the Ancillary Rights contemplated hereby, have been
duly authorized by all requisite corporate or partnership action of such Seller. Such Seller has
duly executed and delivered this Agreement. This Agreement constitutes the legal, valid and
binding obligation of such Seller enforceable against such Seller in accordance with its terms.
2.2 Title; Warrant. Such Seller owns, legally and beneficially, all of the
Securities set forth opposite its name on Schedule A hereto and the Ancillary Rights. Upon
the delivery of and payment for the Securities and the Ancillary Rights at the Closing as provided
for in this Agreement, Purchaser will acquire good and valid title to all of the Securities and the
Ancillary Rights, free and clear of any Lien. Attached hereto as Exhibit A is an accurate
and complete copy of the Common Stock Purchase Warrant (the “Warrant”) included in the
Securities. The Warrant is currently exercisable for 531,255 shares of the Company’s Common Stock
at $7.00 per share.
2.3 No Conflicts, etc. The execution, delivery and performance of this Agreement by
such Seller, and the consummation of the purchase and sale of the
2
Securities and the Ancillary Rights contemplated hereby, do not and will not conflict with,
contravene, result in a violation or breach of or default under (with or without the giving of
notice or the lapse of time or both), create in any other Person a right or claim of termination or
amendment, or require modification, acceleration or cancellation of, or result in the creation of
any Lien (or any obligation to create any Lien) upon any of the properties or assets of such Seller
under, (a) any Law applicable to such Seller or any of its properties or assets, (b) any provision
of any of the Organizational Documents of such Seller, or (c) any Contract to which such Seller is
a party or by which any of its properties or assets (including the Securities and the Ancillary
Rights) are bound.
2.4 Status. Such Seller is an entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and has full power and authority to,
conduct its business and to own or lease and to operate its properties as and in the places where
such business is conducted and such properties are owned, leased or operated except as would not
reasonably be expected to prevent or materially impair or delay the ability of such Seller to sell
the Securities and the Ancillary Rights and otherwise fulfill its obligations under this Agreement.
2.5 Consents. All Governmental Approvals or other Consents required to be obtained
by such Seller in connection with the execution and delivery of this Agreement and the consummation
of the purchase and sale of the Securities and the Ancillary Rights contemplated hereby have been
obtained.
2.6 Brokers. Such Seller has not taken any action that would give rise to a claim by
any Person for any broker’s or finder’s fee, commission or similar payment in connection with the
transactions contemplated by this Agreement.
2.7 Limitation on Representations and Warranties. Such Seller makes no
representation or warranty concerning the Securities and the Ancillary Rights or the transactions
contemplated by this Agreement except as expressly set forth in this Article 2, and except as set
forth in this Article 2 and Section 4.4, the sale of the Securities and the Ancillary Rights
hereunder is without recourse to or representation or warranty by such Seller.
3. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Sellers as follows:
3
3.1 Authorization, etc. Purchaser has full limited liability company power and
authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the purchase and sale of the Securities and the Ancillary Rights contemplated hereby.
The execution, delivery and performance of this Agreement by Purchaser, and the consummation of the
purchase and sale of the Securities and the Ancillary Rights contemplated hereby, have been duly
authorized by all requisite limited liability company action of Purchaser. Purchaser has duly
executed and delivered this Agreement. This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its terms.
3.2 No Conflicts, etc. The execution, delivery and performance of this Agreement by
Purchaser, and the consummation of the purchase and sale of the Securities and the Ancillary Rights
contemplated hereby, do not and will not conflict with, contravene, result in a violation or breach
of or default under (with or without the giving of notice or the lapse of time, or both), create in
any other Person a right or claim of termination or amendment, or require modification,
acceleration or cancellation of, or result in or require the creation of any Lien (or any
obligation to create any Lien) upon any of the properties or assets of Purchaser under (a) any Law
applicable to Purchaser or any of its properties or assets, (b) any provision of any of the
Organizational Documents of Purchaser, or (c) any Contract to which Purchaser is a party or by
which its properties or assets are bound.
3.3 Status. Purchaser is an entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has full power and authority to
conduct its business and to own or lease and to operate its properties as and in the place where
such business is conducted and such properties are owned, leased or operated except as would not
reasonably be expected to prevent or materially impair or delay the ability of Purchaser to
purchase the Securities and the Ancillary Rights and otherwise fulfill its obligations under this
Agreement.
3.4 Consents. All Governmental Approvals or other Consents required to be obtained
by Purchaser in connection with the execution and delivery of this Agreement and the consummation
of the purchase and sale of the Securities and the Ancillary Rights contemplated hereby have been
obtained.
4
3.5 Purchase for Investment. Purchaser is an “accredited investor” within the
meaning of Rule 501 of Regulation D under the U.S. Securities Act of 1933, as amended, has such
knowledge and experience in financial business matters as to be capable of evaluating the merits
and risks of its purchase of the Securities hereunder, has no need for liquidity in such Securities
and has the ability to bear the economic risks of its purchase of the Securities hereunder.
Purchaser is currently an investor in the Company and is knowledgeable as to the business and
affairs of the Company. Purchaser is purchasing the Securities solely for investment, with no
present intention to resell the Securities in violation of applicable securities laws. Purchaser
hereby acknowledges that the Securities have not been registered pursuant to the U.S. Securities
Act of 1933, as amended, or any state securities laws, and may not be transferred in the absence of
such registration or an exemption therefrom.
3.6. Brokers. Purchaser has not taken any action that would give rise to a claim by
any Person for any broker’s or finder’s fee, commission or similar payment in connection with the
transactions contemplated by this Agreement.
3.7 Limitation on Representations and Warranties. Purchaser makes no representation
or warranty concerning the transactions contemplated by this Agreement except as expressly set
forth in this Article 3, and except as set forth in this Article 3 and Section 4.4, the
transactions contemplated by this Agreement are without recourse to or representation or warranty
by Purchaser.
4. Certain Covenants.
4.1 Confidentiality. Subject to the last sentence of this Section 4.1, each party
shall maintain the confidentiality of and not disclose the Confidential Information,
provided that (i) such party may deliver or disclose Confidential Information to such
party’s representatives, officers, directors, affiliates, members of its investment committees,
advisory committees, and similar bodies, and Persons related thereto, who are informed of the
confidentiality obligations of this Section 4.1; provided, that such party shall be
responsible for any disclosure made by any of the foregoing as if it had been made by such party,
(ii) any Person may deliver or disclose Confidential Information to any Governmental Authority to
the extent required by applicable Law or (iii) any Person may deliver or disclose Confidential
Information to any other Person to which such delivery or disclosure may be necessary (A) to effect
5
compliance with any Law applicable to such Person, or (B) in response to any subpoena or other
legal process. Nothing in this Section 4.1 or in Section 4.2 below shall restrict any Person from
making any filings with the United States Securities and Exchange Commission (and forwarding copies
of such filings to the Company), or require any notice or submission to or consultation with or
approval of any other party prior thereto, including, without limitation, filings that may include
a copy of this Agreement and/or the disclosure of the terms and conditions set forth in this
Agreement.
4.2 Publicity. Except as provided in the last sentence of Section 4.1 above or as
may be required by the rules of any quotation system or exchange on which the Company’s or any
party hereto’s securities are listed or applicable Law, neither party shall issue a publicity
release or announcement concerning this Agreement or the transactions contemplated hereby without
the prior approval of the other parties. Except as provided in the last sentence of Section 4.1
above, if any announcement is required by applicable Law to be made by any party hereto, prior to
making such announcement such party will deliver a draft of such announcement to the other parties
and shall give the other parties an opportunity to comment thereon.
4.3 Further Assurances. Following the Closing Date, each party shall, from time to
time, execute and deliver such additional instruments, documents, conveyances or assurances and
take such other actions as shall be necessary, or otherwise reasonably be requested by any other
party, to confirm and assure the rights and obligations provided for in this Agreement and render
effective the consummation of the purchase and sale of the Securities and the Ancillary Rights
contemplated hereby, or otherwise to carry out the intent and purposes of this Agreement (which
include the transfer by the Sellers to Purchaser of the ownership and intended related benefits of
the Securities and the Ancillary Rights in the manner contemplated by this Agreement).
4.4 Indemnification.
4.4.1 Sellers shall indemnify and hold harmless Purchaser and its Affiliates and their
respective members, directors, officers, employees and agents (collectively with Purchaser and its
Affiliates, the “Purchaser Indemnitees”) from and against any and all claims, demands or
suits by any person, and all losses, liabilities, damages, obligations, payments, costs and
expenses (including reasonable legal fees and expenses and including costs and expenses incurred in
connection with
6
investigations and settlement proceedings) (each, an “Indemnifiable Loss”), as
incurred, asserted against or suffered by any Purchaser Indemnitee relating to, resulting from or
arising out of any breach by Sellers of any representation, warranty, covenant or agreement of
Sellers contained in this Agreement.
4.4.2 Purchaser shall indemnify and hold harmless each Seller and its Affiliates and their
respective directors, officers, trustees, employees and agents (collectively with each Seller and
its Affiliates, the “Seller Indemnitees”) from and against any and all Indemnifiable
Losses, as incurred, asserted against or suffered by any Seller Indemnitee relating to, resulting
from or arising out of any breach by Purchaser of any representation, warranty, covenant or
agreement of Purchaser contained in this Agreement.
4.4.3 To the fullest extent permitted by law, no Purchaser Indemnitee nor any Seller
Indemnitee shall be liable to any Purchaser Indemnitee or Seller Indemnitee for any claims, demands
or suits for consequential, incidental, special, exemplary, punitive, indirect or multiple damages
connected with or resulting from any breach of this Agreement, including any such damages which are
based upon breach of contract, tort (including negligence and misrepresentation), breach of
warranty, strict liability, statute, operation of law or any other theory of recovery.
4.4.4 The rights and remedies of Sellers and Purchaser under this Section 4.4. are, solely as
between Sellers and Purchaser, exclusive and in lieu of any and all other rights and remedies which
Sellers and Purchaser may have under this Agreement for monetary relief with respect to any breach
of, or failure to perform, any covenant or agreement set forth in this Agreement, or any breach of
any representation or warranty by Sellers or Purchaser. Each party agrees that the previous
sentence shall not limit or otherwise affect any non-monetary right or remedy which party may have
under this Agreement or otherwise limit or affect either party’s right to seek equitable relief,
including the remedy of specific performance.
4.5. Assignment and Assumption of the Ancillary Rights. Subject to the terms and
provisions of this Agreement, Sellers hereby sell, transfer, convey and assign to Purchaser the
Ancillary Rights and Purchaser hereby accepts such sale, transfer, conveyance and assignment of the
Ancillary Rights and assumes all duties and obligations of Sellers set forth in the agreements
listed on Schedule A hereto that are
7
associated with the Ancillary Rights to the extent such duties and obligations are required by
Purchaser to exercise its rights, title and interest in and to the Ancillary Rights.
5. [Reserved.]
6. [Reserved.]
7. Definitions.
7.1 Terms Generally. The words “hereby,” “herein,” “hereof,” “hereunder” and words
of similar import refer to this Agreement as a whole (including any Schedules hereto) and not
merely to the specific section, paragraph or clause in which such word appears. All references
herein to Sections and Schedules shall be deemed references to Sections of, and Schedules to, this
Agreement unless the context shall otherwise require. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The definitions
given for terms in this Section 7 and elsewhere in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. Except as otherwise
expressly provided herein, all references to “dollars” or “US$” shall be deemed references to the
lawful money of the United States of America.
7.2 Certain Terms. Whenever used in this Agreement (including in the Schedules), the
following terms shall have the respective meanings given to them below or in the Sections indicated
below:
Affiliate: of a Person means a Person that directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control with, the first
Person. “Control” (including the terms “controlled by” and “under common control with”)
means the possession, directly or indirectly, of the power to direct or cause the direction
of the management policies of a person, whether through the ownership of voting securities,
by contract or credit arrangement, as trustee or executor, or otherwise.
Agreement: as defined in the first paragraph of this Agreement.
8
Ancillary Rights: as defined in the recitals of this Agreement.
Business Day: any day that is not a Saturday, Sunday or other day on which banks
are required or authorized by Law to be closed in Washington, D.C.
Closing: as defined in Section 1.2.
Closing Date: as defined in Section 1.2.
Company: as defined in the recitals of this Agreement.
Confidential Information: information regarding the transactions contemplated by
this Agreement provided that such Confidential Information does not include information that
(a) was publicly known or otherwise known to such receiving party prior to the time of such
disclosure, (b) subsequently becomes publicly known through no breach of this Agreement by
such receiving party or any Person acting on such party’s behalf, or (c) otherwise becomes
known to such receiving party other than through disclosure by the delivering party or any
Person with a duty to keep such information confidential.
Consent: any consent, approval, authorization, waiver, permit, grant, franchise,
concession, agreement, license, certificate, exemption, order, registration, declaration,
filing, report or notice of, with or to any Person.
Contract: all loan agreements, indentures, letters of credit (including related
letter of credit applications and reimbursement obligations), mortgages, security
agreements, pledge agreements, deeds of trust, bonds, notes, guarantees, surety obligations,
warranties, licenses, franchises, permits, powers of attorney, purchase orders, leases, and
other agreements, contracts, instruments, obligations, offers, commitments, arrangements and
understandings, written or oral.
Governmental Approval: any Consent of, with or to any Governmental Authority.
9
Governmental Authority: any nation or government, any state or other political
subdivision thereof; any entity, authority or body exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government, including,
without limitation, any government authority, agency, department, board, commission or
instrumentality of any nation or any political subdivision thereof; any court, tribunal or
arbitrator; and any self-regulatory organization.
Law: all applicable provisions of all (a) constitutions, treaties, statutes, laws,
codes, rules, regulations, ordinances or orders of any Governmental Authority, (b)
Governmental Approvals and (c) orders, decisions, injunctions, judgments, awards and decrees
of or agreements with any Governmental Authority.
Lien: any mortgage, pledge, deed of trust, hypothecation, right of others, claim,
security interest, encumbrance, burden, title defect, title retention agreement, lease,
sublease, license, occupancy agreement, easement, covenant, condition, encroachment, voting
trust agreement, interest, option, right of first offer, negotiation or refusal, proxy,
lien, charge or other restrictions or limitations of any nature whatsoever, including but
not limited to such Liens as may arise under any Contract.
Organizational Documents: as to any Person, its certificate or articles of
incorporation, certificate or articles of limited partnership, by-laws, partnership
agreement, memorandum and articles of association or other organizational and constitutive
documents.
Person: any natural person, firm, partnership, association, corporation, limited
liability company, company, trust, business trust, Governmental Authority or other entity.
Purchase Price: as defined in Section 1.1.
Purchaser: as defined in the first paragraph of this Agreement.
Securities: as defined in the recitals of this Agreement.
10
Warrant: as defined in Section 2.3.
8. Miscellaneous.
8.1 Expenses. Except as set forth below in this Section 8.1 or as otherwise
specifically provided for in this Agreement, each party shall bear its respective expenses, costs
and fees (including attorneys’ fees) in connection with the purchase and sale of the Securities and
the Ancillary Rights contemplated hereby, including the preparation, execution and delivery of this
Agreement and compliance herewith; provided that for the avoidance of doubt, any transfer tax or
similar tax associated with the transfer of the Securities contemplated hereby shall be borne
solely by Purchaser.
8.2 Notices. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered personally, (b) sent by next-day or overnight mail or
delivery or (c) sent by facsimile, as follows:
(i) if to Purchaser,
Blesbok LLC |
||||
0000 Xxxxxx Xxxxxx |
||||
Xxxxx Xxxxxx, XX 00000 |
||||
Attention: Managing Member |
||||
with a copy to: |
||||
Maron & Sandler |
||||
0000 Xxxxxx Xxxxxx |
||||
Xxxxx 000 |
||||
Xxxxx Xxxxxx, XX 00000 |
||||
Fax: 310/000-0000 |
||||
Telephone: 310/000-0000 |
||||
Attention: Xxxxxxx X. Xxxxx, Esq. |
11
(ii) If to Sellers,
Allied Capital Corporation |
0000 Xxxxxxxxxxxx Xxxxxx, X.X. |
Xxxxxxxxxx, X.X. 00000 |
Fax: 202/000-0000 |
Telephone: 202/000-0000 |
Attention: Xxxxxxx Xxxxxx |
with a copy to: |
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP |
0000 X Xxxxxx, X.X. |
Xxxxxxxxxx, X.X. 00000 |
Fax: 202/000-0000 |
Telephone: 202/000-0000 |
Attention: Xxxxxxx Xxxxx, Xx. |
or, in each case, at such other address as may be specified in writing to the other parties hereto
in accordance with this Section 8.2.
All such notices, requests, demands, waivers and other communications shall be deemed to have
been received (i) if by personal delivery on the day after such delivery, (ii) if by next-day or
overnight mail or delivery, on the day delivered or (iii) if by facsimile, on the next day
following the day on which such facsimile was sent, provided that a copy is also sent by another
method described herein.
8.3 Jurisdiction. Each of the parties irrevocably consents to the non-exclusive
jurisdiction of the courts of the State of State of New York and the courts of the United States of
America located in the Borough of Manhattan, City and State of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of the parties irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of State of New York and the courts of the United
States of America
12
located in the Borough of Manhattan, City and State of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an inconvenient
forum.
8.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO
VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK.
8.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors and permitted assigns.
8.6 Assignment. This Agreement shall not be assignable or otherwise transferable by
either party hereto without the prior written consent of the other party hereto, and any purported
assignment or other transfer without such consent shall be void and unenforceable;
provided, however, that Purchaser may assign any or all of its rights and benefits
hereunder to any of its Affiliates without having to obtain any such consent.
8.7 No Third Party Beneficiaries. Except as provided in Section 4.4, nothing in this
Agreement will provide any benefit to any third party, or entitle any third party to any claim,
cause of action, remedy or right of any kind.
8.8 Amendment; Waivers, etc. No amendment, modification or discharge of this
Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly
executed by the party against whom enforcement of the amendment, modification, discharge or waiver
is sought. Any such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party granting such waiver
in any other respect or at any other time. Neither the waiver by any of the parties hereto of a
breach of or a default under any of the provisions of this Agreement, nor the failure by any of the
parties, on one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights or privileges
hereunder. The rights and remedies herein provided are cumulative
13
and none is exclusive of any other, or of any rights or remedies that any party may otherwise
have at law or in equity.
8.9 Entire Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
8.10 Severability. If any provision, including any phrase, sentence, clause, section
or subsection, of this Agreement is invalid, inoperative or unenforceable for any reason, such
circumstances shall not have the effect of rendering such provision in question invalid,
inoperative or unenforceable in any other case or circumstance, or of rendering any other provision
herein contained invalid, inoperative, or unenforceable to any extent whatsoever.
8.11 Headings. The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this Agreement.
8.12 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall together constitute one and the same
instrument.
8.13 Survival of Representations and Warranties, etc. The representations and
warranties contained in this Agreement shall survive indefinitely.
[Signatures on next page]
14
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| SELLERS: ALLIED CAPITAL CORPORATION |
||||
| By | /s/ Xxxxxxx Xxxxxx | |||
| Name: Xxxxxxx Xxxxxx | ||||
| Title: Principal | ||||
| ALLIED INVESTMENTS, LP |
||||
| By | /s/ Xxxxxxx Xxxxxx | |||
| Name: Xxxxxxx Xxxxxx | ||||
| Title: Principal | ||||
[Signature of Purchaser on next page]
| PURCHASER: BLESBOK LLC |
||||
| By | /s/ Xxxxx Xxxxxxxx | |||
| Name: Xxxxx Xxxxxxxx | ||||
| Title: Manager | ||||
SCHEDULE A
| Seller | Security | No. of Shares | Purchase Price | |||
Allied |
Series D Convertible | |||||
| Preferred Stock | ||||||
| (Certificate Nos. D-1 | ||||||
| and D-5 evidencing | ||||||
| 571,808 shares) | 571,808 | $322,500 | ||||
Allied Investments |
Series D Convertible | |||||
| Preferred Stock | ||||||
| (Certificate Nos. D-7 | ||||||
| evidencing 492,022 | ||||||
| shares | 492,022 | $277,500 | ||||
Allied |
Series F Convertible | |||||
| Preferred Stock | ||||||
| (Certificate No. PF-3 | ||||||
| evidencing 150,526 | ||||||
| shares, plus 25,546 | ||||||
| shares representing all | ||||||
| accrued dividends | ||||||
| thereon from | ||||||
| inception) | 176,072 | $1,662,123 | ||||
Allied |
Warrant No. 1 dated | |||||
| June 30, 1998 to | ||||||
| purchase shares of | ||||||
| Common Stock | 531,255 | $1,296,262 | ||||
| Total | $3,558,385 | |||||
ANCILLARY RIGHTS:
Warrant to Purchase Common Stock:
First Amended and Restated Registration Rights Agreement between Nobel Education Dynamics, Inc., a
Delaware corporation, and Allied, dated as of June 30, 1998, as amended on June 17, 2003 and
September 9, 2003.
Series F Convertible Preferred Stock:
Registration Rights Agreement between the Company, Allied, Camden Partners Strategic Fund II-A,
L.P., a Delaware limited partnership, Camden Partners Strategic Fund II-B, L.P., a Delaware limited
partnership, Allied, Mollusk Holdings, L.L.C., a California limited liability company and Blesbok
LLC, a Delaware limited liability company, dated as of September 9, 2003.
EXHIBIT A
Common Stock Purchase Warrant
