Exhibit 10.1
OPTION EXCHANGE AGREEMENT
This Option Exchange Agreement (the "AGREEMENT"), dated as of March 10,
2003, is entered into by and between Sylvan Learning Systems, Inc., a Maryland
corporation (the "COMPANY") and each of (i) Xxxxxxx X. Xxxxxx, an individual
resident in Maryland, (ii) R. Xxxxxxxxxxx Xxxxx-Xxxxx, an individual resident in
Maryland, (iii) Xxxx Xxxxxxx, an individual with a residence in Maryland, and
(iv) Xxxxxxx X. Xxxxxx, Xx., an individual resident in Florida (Messrs. Xxxxxx,
Xxxxx-Xxxxx, Xxxxxxx and Xxxxxx each individually an "SIU OPTION HOLDER" and
collectively the "SIU OPTION HOLDERS").
Capitalized terms used and not otherwise defined upon first usage herein
are defined in Section 4 hereof.
1. EXCHANGE OF SIU OPTIONS FOR COMPANY OPTIONS.
1.1. AGREEMENT TO EXCHANGE SIU OPTIONS FOR COMPANY OPTIONS. Subject to all of
the terms and conditions hereof and in reliance on the representations and
warranties set forth herein:
a. Each SIU Option Holder hereby agrees to convert all of his SIU Options
into Company Options at the Exchange Ratio. For purposes of this Agreement, the
Exchange Ratio shall be 13,298.562 Company Options for every 1.0 SIU Option. In
calculating the number of Company Options that will result from conversion of
the SIU Options, the Company shall adjust the product of the number of SIU
Options multiplied by the Exchange Ratio down to the nearest whole number so
that no SIU Option Holder receives Company Options to purchase fractional shares
of Company Common Stock.
b. In connection with the foregoing, the Company hereby agrees to issue to
each SIU Option Holder, and such SIU Option Holder hereby agrees to accept
delivery of, the number of Company Options indicated opposite his name on the
XXX Option Holder Schedule attached hereto as Exhibit A, such exhibit made a
part hereof, and subject to the terms and conditions of the Company Stock Option
Plan. In the event that the Market Price of the Company Common Stock at Closing
is greater than $15.48 per share, then the Company shall increase the Strike
Price Per Share for each SIU Option Holder indicated on Exhibit A in such manner
so as to preserve the Intrinsic Value that the SIU Option Holder would receive
at Closing if the Market Price of the Company Common Stock at Closing equaled
$15.48 per share.
1.2. CLOSING. The closing of the exchange transaction contemplated by this
Agreement (the "CLOSING") will take place at the offices of the Company, 0000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or by facsimile exchange of required
documentation, concurrent with and conditional upon the closing of that certain
Asset Purchase Agreement by and among Educate Operating Company, LLC, Apollo
Sylvan, LLC, Apollo Xxxxxx XX, LLC, Educate, Inc., the Company and Sylvan
Ventures, L.L.C. dated as of March 10, 2003, or at such other time, date and
place as the Company may designate (the date on which the Closing actually
occurs, the "CLOSING DATE").
1.3. CLOSING DELIVERIES. The obligations of the SIU Option Holders to
exchange the SIU Options for the Company Options at the Closing and of the
Company to exchange
the Company Options for the SIU Options at the Closing are subject to the
fulfillment, or the waiver by the applicable party, of each of the following
conditions on or before the Closing:
a. the Company will deliver to each SIU Option Holder (i) evidence of the
Company Options received by such holder substantially in the form attached
hereto as EXHIBIT B and (ii) a copy of the Company Stock Option Plan, and the
Company shall record such award in the name of such SIU Option Holder (or if
requested by such SIU Option Holder, their nominee or designee) in the Company's
records; and
b. each SIU Option Holder will deliver to the Company any evidence in his
possession of the SIU Options.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to induce the SIU
Option Holders to enter into this Agreement and to exchange their SIU Options
for the Company Options, the Company hereby represents and warrants to each of
the SIU Option Holders as follows. Except for those representations and
warranties expressly set forth in this Section 2, the Company does not make any
representations or warranties, express or implied, at law or in equity, of any
kind or nature whatsoever concerning its organization or operations, and any
such other representations are hereby expressly disclaimed in full and for all
time.
2.1. ORGANIZATION AND AUTHORITY. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland.
The Company has all requisite corporate power and authority to carry on its
business as now being conducted by it.
2.2. CORPORATE POWER; BINDING EFFECT. The Company has all requisite power and
full legal right to execute and deliver this Agreement and to perform all of its
obligations hereunder. This Agreement and the transactions contemplated hereby
have been duly authorized by all requisite corporate action on the part of the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its respective terms (except to the
extent that enforcement may be affected by laws relating to bankruptcy,
reorganization, insolvency and creditors' rights generally and by the
availability of injunctive relief, specific performance and other equitable
remedies).
2.3. SHARES RESERVED FOR ISSUANCE. The Company has reserved, solely for the
purpose of issuance upon exercise of the Company Options, a number of shares of
Company Common Stock sufficient to cover the exercise of the Company Options.
2.4. VALID ISSUANCE OF COMPANY COMMON STOCK. The Company Common Stock
issuable upon the exercise of the Company Stock Options shall be duly authorized
and validly issued, fully paid and non-assessable, and free and clear of any
security interest, option or other charge or encumbrance.
2.5. VESTING. The Company Options delivered hereunder to Xxxxxxx X. Xxxxxx
and R. Xxxxxxxxxxx Xxxxx-Xxxxx shall be fully vested and exercisable. The
Company Options delivered hereunder to the other SIU Option Holders shall vest
and become exercisable upon the same schedule or schedules as the SIU Options
delivered in exchange therefor.
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3. REPRESENTATIONS AND WARRANTIES OF THE SIU OPTION HOLDERS. In order to induce
the Company to enter into this Agreement and to exchange the Company Options for
the SIU Options, each SIU Option Holder severally represents and warrants, as to
himself only, to the Company as follows.
3.1. TITLE TO SIU OPTIONS; ENCUMBRANCES. Such SIU Option Holder owns the SIU
Options indicated opposite his name on the XXX Option Holder Schedule attached
hereto as Exhibit A and made a part hereof. Such SIU Option Holder has, on the
date hereof, and is conveying to the Company, and the Company is acquiring, good
and marketable title to such SIU Options, free and clear of any and all
encumbrances, liens, charges, security interests, claims or pledges other than
encumbrances that may have been created by the Company or its subsidiaries.
3.2. POWER; BINDING EFFECT. Each SIU Option Holder has all requisite power,
capacity and full legal right to execute and deliver this Agreement and to
perform all of his obligations hereunder. This Agreement has been duly executed
and delivered by such SIU Option Holder and constitutes a legal, valid and
binding obligation of such SIU Option Holder, enforceable against him in
accordance with its respective terms (except to the extent that enforcement may
be affected by laws relating to bankruptcy, reorganization, insolvency and
creditors' rights generally and by the availability of injunctive relief,
specific performance and other equitable remedies).
4. DEFINITIONS. For all purposes of this Agreement, the following terms will
have the meanings set forth or cross-referenced in this Section 4.
"Business Day" means a day other than Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or are required by law to
close.
"BV" means Sylvan International, B.V., a Dutch corporation.
"BV Common Stock" means shares of common stock of BV, par value EUR0.04 per
share.
"Closing" shall have that meaning set forth in Section 1.2 hereof.
"Closing Date" shall have that meaning set forth in Section 1.2 hereof.
"Company" shall have that meaning set forth in the first paragraph of this
Agreement.
"Company Common Stock" means shares of the common stock of the Company, par
value USD0.10 per share.
"Company Options" means the options to purchase Company Common Stock set
forth on Exhibit A.
"Company Stock Option Plan" means either the Company's 1998 Stock Incentive
Plan, as amended, or the Company's 2003 Employee Stock Incentive Plan, as
amended, or both plans in the event that an SIU Option Holder's award includes
options from both the Company's 1998 Stock Incentive Plan and 2003 Employee
Stock Incentive Plan, as applicable.
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"Exchange Ratio" shall have that meaning set forth in Section 1.1(a) hereof.
"Intrinsic Value" means the product of (a) $15.48 minus the Strike Price Per
Share multiplied by (b) the number of Company Options indicated on Exhibit A to
be received by the SIU Option Holder upon consummation of the transactions
contemplated by this Agreement.
"Market Price" means the average of the daily closing prices per share of the
Company Common Stock for the three consecutive Trading Days immediately prior to
such date. The closing price for each day shall be the last quoted price as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System.
"SIU Option Holders" shall have that meaning set forth in the first paragraph
of this Agreement.
"SIU Options" means options to purchase shares of the BV Common Stock as set
forth on Exhibit A.
"Strike Price Per Share" means the stated strike price per share indicated on
Exhibit A for which, upon consummation of the transactions contemplated by this
Agreement, the indicated holder may purchase the underlying Company Common Stock
upon exercise of his or her Company Options.
"Trading Day" means a day on which the National Association of Securities
Dealers, Inc. Automated Quotation System is operating for the transaction of
business.
5. MISCELLANEOUS PROVISIONS.
5.1. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented in any and all respects, but only by a written instrument signed by
all of the parties hereto expressly stating that such instrument is intended to
amend, modify or supplement this Agreement.
5.2. NOTICES. All notices, requests, payments, instructions or other
documents to be given hereunder will be in writing or by written
telecommunication, and will be deemed to have been duly given if (i) delivered
personally (effective upon delivery), (ii) mailed by certified mail, return
receipt requested, postage prepaid (effective three Business Days after
dispatch), (iii) sent by a reputable, established courier service that
guarantees overnight delivery (effective the next Business Day) or (iv)
dispatched by telecopier if the telecopy is received in complete, readable form
(effective upon dispatch), addressed as follows (or to such other address as the
recipient party may have furnished to the sending party for the purpose pursuant
to this Section 5.2):
a. If to the Company:
Sylvan Learning Centers, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
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with copies sent at the same time and by the same means to:
Xxxx Xxxxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
b. If to any SIU Option Holder, the address of such SIU Option Holder set
forth in the Company's records referred to in Section 1.3(a) of this Agreement.
5.3. COUNTERPARTS, EFFECTIVENESS. This Agreement and any amendments which may
be executed by the parties in separate counterparts (including by facsimile),
each of which when so executed and delivered, will be an original, but all of
which together will constitute one and the same instrument. This Agreement and
any amendments which may be executed by the parties in separate counterparts
(including by facsimile), each of which when so executed and delivered, shall be
effective by and between the Company and the executing party regardless of
whether the other parties have executed the Agreement. In pleading or proving
this Agreement, it will not be necessary to produce or account for more than one
such complete counterpart.
5.4. CAPTIONS. The captions or subsections of this Agreement are for
reference only and will not affect the interpretation or construction of this
Agreement.
5.5. BINDING EFFECT AND BENEFITS. This Agreement will bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Except as otherwise provided in this Agreement, the provisions of this
Agreement that are for the benefit of the SIU Option Holders will inure to the
benefit of all transferees of the Company Options, and the applicable provisions
of this Agreement that bind the SIU Option Holders will bind all transferees of
the Company Options. Nothing in this Agreement is intended to or will confer any
rights or remedies on any person other than the parties hereto and their
respective successors and permitted assigns.
5.6. ASSIGNMENT. This Agreement and the rights and obligations hereunder may
not be assigned by any SIU Option Holder without the written consent of the
Company.
5.7. CONSTRUCTION. The language used in this Agreement is the language chosen
by the parties to express their mutual intent, and no rule of strict
construction will be applied against either party.
5.8. FURTHER ASSURANCES. From time to time on and after the Closing Date, the
parties will promptly execute and deliver all such further instruments and
assurances, and will promptly take all such further actions, as any party may
reasonably request in order to more effectively effect or confirm the
transactions contemplated by this Agreement and to carry out the purposes
hereof.
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5.9. SEVERABILITY. No invalidity or unenforceability of any section of this
Agreement or any portion thereof will affect the validity or enforceability of
any other section or the remainder of such section.
5.10. ENTIRE AGREEMENT. This Agreement, together with the exhibits and
schedules hereto, contains the entire understanding and agreement among the
parties, or between or among any of them, and supersedes any prior
understandings or agreements between or among any of them, with respect to the
subject matter hereof.
5.11. GOVERNING LAW. This Agreement will be governed by and interpreted and
construed in accordance with the laws of the State of Maryland.
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IN WITNESS WHEREOF, the Company and each of the SIU Option Holders have
executed this Agreement as of the date first above written.
Company Sylvan Learning Systems, Inc.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President and Chief
Financial Officer
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SIU Option Holders
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ X. Xxxxx-Xxxxx
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R. Xxxxxxxxxxx Xxxxx-Xxxxx
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Xxxx Xxxxxxx
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Xxxxxxx X. Xxxxxx, Xx.
EXHIBIT A
SIU OPTION HOLDERS
OPTIONS ENTITLED TO BE EXCHANGED CONSIDERATION
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NUMBER OF
STRIKE PRICE GRANT EXPIRATION COMPANY STRIKE PRICE GRANT EXPIRATION
EMPLOYEE TITLE # OF SIU OPTIONS PER SHARE DATE DATE* OPTIONS PER SHARE DATE DATE*
Appadoo, Raph CEO & President 37.95455000000000 $34,235 2/1/00 2/1/10 504,740 $2.61 2/1/00 2/1/10
Xxxxxx, Xxxx Chairman/Founder 45.54500000000000 $37,693 12/1/99 Oct-03 605,683 $2.88 12/1/99 12/1/09
Xxxxxx, Xxxx COO & CFO 10.12121000000000 $69,162 10/1/01 10/1/11 134,597 $5.27 10/1/01 10/1/11
Xxxxxx, Xxxx COO & CFO 3.39722854420915 $69,162 1/2/02 1/2/12 45,178 $5.27 1/2/02 1/2/12
Xxxxx-Xxxxx, Xxxxx Board Member/Founder 45.54500000000000 $37,693 12/1/99 Oct-03 605,683 $2.88 12/1/99 12/1/09
EXHIBIT B
EVIDENCE OF OPTION AWARD
[in the form of the Company's standard grant award letter containing the
name of the SIU Option Holder, the number of SIU Options converted, the number
of Company Options received, the strike price per share, the grant
date, the vesting schedule and the expiration date of the award]
