Exhibit 2.1
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT, dated as of October 2, 2002 (the "Amendment"),
is by and between Socrates Acquisition Corporation, a Delaware corporation (the
"Buyer") and Nobel Learning Communities, Inc., a Delaware corporation (the
"Company") and amends the Agreement and Plan of Merger, dated as of August 5,
2002, by and between the Buyer and the Company (the "Merger Agreement").
Capitalized terms used but not otherwise defined herein have the meaning
assigned to those terms in the Merger Agreement.
WHEREAS, pursuant to Section 9.04 of the Merger Agreement, on
September 30, 2002, the Special Committee of the Board of Directors of the
Company and the Board of Directors of the Company approved an amendment of
certain provisions of the Merger Agreement as set forth below; and
WHEREAS, pursuant to Section 9.04 of the Merger Agreement, on
September 30, 2002, the Board of Directors of the Buyer approved an amendment of
certain provisions of the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto hereby agree as follows:
1. Amendments to Merger Agreement
1.1. Amendment to Section 3.03(a)(v). Section 3.03(a)(v) of the Merger
Agreement is hereby amended by deleting the number "230,510" and
replacing it with the number "230,501".
1.2. Amendment to to Section 8.01(b). Section 8.01(b) of the Merger
Agreement is hereby amended by deleting the date "December 5, 2002"
and replacing it with the date "January 31, 2003".
1.3. Amendment to Section 4.06. Section 4.06 of the Merger Agreement is
hereby amended by deleting the first sentence thereof and replacing it
with the following sentence: "Buyer has provided the Company with a
commitment letter from (i) BNP Paribas, dated as of August 5, 2002 and
amended as of October 2, 2002, (ii) Gryphon Partners II, L.P., dated
as of August 5, 2002 and amended as of October 2, 2002, and (iii)
Xxxxxxx Investment Partners, Inc., dated as of August 5, 2002, (the
"Commitment Letters" and the financing to be provided thereunder, the
"Financing")."
1.4. Schedule I to the Merger Agreement shall be superseded and replaced in
its entirety by Schedule I attached hereto as Exhibit 1.4.
1.5. The list of "Outstanding Options and Warrants" contained in Section
3.03(d) of the Company Disclosure Schedule to the Merger Agreement
shall be superseded and replaced in its entirety by the list of
"Outstanding Options and Warrants" attached hereto as Exhibit 1.5.
2. Miscellaneous.
2.1. Counterparts. This Amendment may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
2.2. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that state and without
regard to any applicable conflicts of law principles.
2.3. Headings. The descriptive headings contained in this Amendment are
included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Amendment.
2.4. Effectiveness of Merger Agreement. Except as expressly set forth
herein, the Merger Agreement is not modified, amended, released or
otherwise affected by this Amendment. The parties hereby agree that
all references to the Merger Agreement contained in any documents
delivered in connection with or at the closing under the Merger
Agreement be deemed to refer to the Merger Agreement as amended
hereby.
2.5. Entire Agreement. This Amendment constitutes the entire agreement
among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties
with respect to the subject matter contained herein.
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IN WITNESS WHEREOF, Buyer and the Company have caused this Amendment to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
SOCRATES ACQUISITION CORPORATION
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Co-President
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Co-President
NOBEL LEARNING COMMUNITIES, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Director
Exhibit 1.4
Schedule I
Rollover Shares/Options
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Individual Rollover Shares Surviving Surviving Rollover Surviving Surviving
Corporation Corporation Options Corporation Class Corporation Class
Class C Common Class P Common C Options P Options
Stock Stock
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Common Preferred
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Xxxx Xxxxx 108,991 880,726/1/ 0
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Xxxx Xxxxx 17,500 50,000 0
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Xxxxx Xxxxx 0 0 0
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Xxxxxx Xxxxx 0 0 0
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/1/ Consists of 477,500 shares of Series A Preferred Stock and 403,226 shares of
Series C Preferred Stock
