Exhibit 2.2
EXECUTION COPY
JOINDER AGREEMENT
This Joinder Agreement is made and entered into as of this 26th day of
September, 2001 by and among Education Management Corporation ("Buyer"), Xxxxxxx
X. Xxxxxxxxx, an individual residing in the State of Illinois ("Seller") and a
stockholder of Argosy Education Group, Inc., an Illinois corporation ("Argosy"),
the MCM Trust, dated July 20, 1992, a trust governed by the laws of the Xxxx
Islands ("MCM Trust") and the Xxxxxxx X. Xxxxxxxxx Dynastic Trust, dated
December 29, 1998, a trust governed by the laws of the State of Illinois
("Dynastic Trust," and together with the MCM Trust, the "Seller Trusts," and
each a "Seller Trust"). Unless otherwise provided in this Joinder Agreement,
capitalized terms shall have the meanings set forth in the Purchase Agreement
(as defined below).
Buyer and Seller have entered into that certain Stock Purchase Agreement
dated July 9, 2001 (the "Purchase Agreement") pursuant to which Buyer will
purchase 4,900,000 Shares of Class A Common Stock of Argosy (the "Shares")
beneficially owned by Seller for the Purchase Price upon the terms and subject
to the conditions of the Purchase Agreement.
The Seller Trusts are together the registered holders of all of the
Shares and will receive, in the aggregate, the Purchase Price payable under the
Purchase Agreement.
Accordingly, each Seller Trust hereby joins Xxxxxxx X. Xxxxxxxxx in the
Purchase Agreement as a "Seller" thereto and agrees to be bound, jointly and
severally with the Seller, by the terms and subject to the conditions thereof,
in such capacity and to the same extent as if the undersigned were original
parties thereto, including but not limited to those obligations of Seller set
forth in Article VIII thereof. Each Seller Trust further agrees that it shall
deliver any certificates, instruments and documents reasonably requested by
Buyer in order to give effect to the transactions contemplated by the Stock
Purchase Agreement. Seller and the Seller Trusts, hereby represent and warrant
as follows to the Buyer.
1.1 SHARES. The Shares are validly issued, fully paid and
nonassessable. The MCM Trust and the Dynastic Trust are the sole record owners
of 4,213,388 Shares and 686,612 Shares, respectively. The undersigned has full
and sole power to vote and dispose of the Shares owned by such Seller Trust. The
Shares are free and clear of any and all Liens or other encumbrances. Upon
delivery of certificates representing the Shares to be delivered pursuant to the
Purchase Agreement, the Buyer will acquire good and valid legal and exclusive
title to the Shares, free and clear of any Liens or other encumbrances or any
adverse claims of any nature. There are no outstanding subscriptions, options,
warrants, preemptive rights, exercise rights, exchange rights, stock
appreciation, phantom stock or other rights to acquire from a Seller Trust any
of the Shares.
1.2 AUTHORIZATION; ENFORCEABILITY. This Joinder Agreement and the
Escrow Agreement have been duly authorized, executed and delivered by Seller and
each Seller Trust and constitute the legal, valid and binding obligation of each
Seller Trust and are, and the other documents and instruments executed and
delivered by Seller and each Seller Trust in connection with the transactions
contemplated by the Purchase Agreement are or will be, when
executed and delivered by such party, enforceable against him or it in
accordance with their respective terms, except as such enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar Laws generally affecting the rights of creditors (the "Bankruptcy
Exception") and subject to general equity principles and an implied covenant of
good faith and fair dealing. Each Seller Trust has the power to perform its
obligations under this Joinder Agreement, the Purchase Agreement and the Escrow
Agreement and to take all actions necessary to effect the transactions
contemplated hereby and thereby.
1.3 NO VIOLATION OR CONFLICT. The execution, delivery and
performance of this Joinder Agreement and the Escrow Agreement by each Seller
Trust and all documents and instruments required hereby and thereby to be
executed and delivered by each Seller Trust do not, and the consummation by such
Seller Trust of the other transactions contemplated hereby and thereby and each
Seller Trust's compliance with the provisions hereof and thereof will not,
result in any violation of, or default under such Seller Trust's trust
instruments or any agreement, contract or binding commitment to which such
Seller Trust is a party to or by which such Seller Trust is bound, or any
statute, rule or regulation under any applicable laws.
1.4 NO LITIGATION. There are no actions, suits, investigations,
injunctions, orders, decrees, claims or proceedings of any nature or kind
whatsoever, at law or in equity, instituted, or pending against any Seller
Trust, or to the Knowledge of the trustees of the Seller Trusts, threatened by
any Person or any outstanding orders, judgments, injunctions, awards or decrees
which are intended to, or might reasonably be expected to, prohibit any of the
transactions contemplated in the Stock Purchase Agreement or impair any Seller
Trust's ability to fulfill its obligations thereunder.
1.5 NO BROKER OR FINDER. No broker, finder or other party is
entitled to any fee or other compensation in connection with the sale of Shares
contemplated under this Joinder Agreement and the Stock Purchase Agreement,
other than X.X. Xxxxxx (pursuant to the letter dated May 25, 2001, a copy of
which has been provided by Seller to Buyer).
1.6 TAX MATTERS. Each Seller Trust will furnish Buyer and/or Escrow
Agent all taxpayer information reasonably necessary to determine any withholding
obligation that may be imposed with respect to the payment of the consideration
to such Seller Trust for the Purchased Shares under applicable tax law.
1.7. DISCLOSURE. None of the representations or warranties of either
Seller Trust contained herein is false or misleading in any material respect or
omits to state a fact necessary to make the statements herein not misleading in
any material respect.
The representations and warranties of Seller and each Seller Trust shall
survive the Clos-ing for a period of two (2) years from the date of Closing.
Notwithstanding the foregoing, the representations and warranties contained in
Sections 1.1, 1.2 and 1.3 hereof shall survive the Closing without regard to the
time limitation set forth in the preceding sentence.
Seller hereby acknowledges and agrees that he shall be jointly and
severally liable with any Seller Trust for the breach by any Seller Trust of the
preceding representations and warran-ties or for the failure of any Seller Trust
to have performed and complied in all respects with its
obligations, covenants and conditions required by this Joinder Agreement, the
Stock Purchase Agreement and the Escrow Agreement to be performed or complied
with by it.
CONSENT TO JURISDICTION; BINDING EFFECT.
(a). The parties hereby agree that all actions, suits or proceedings
(whether in contract, tort or otherwise) arising out of or relating to this
Joinder Agreement or Stock Purchase Agree-ment shall be heard and determined in
a court of the State of Illinois or in a federal court sitting in the State of
Illinois (an "Illinois Court") and the parties hereto irrevocably submit to the
exclu-sive jurisdiction of such courts with respect to any actions, suits or
proceedings (whether in con-tract, tort or otherwise). The parties consent that
all service of process be sent by nationally rec-ognized overnight courier
service directed to any such party at its address set forth below and service so
made will be conclusively deemed to be accepted and completed for all purposes
(notwithstanding any more restrictive service requirements set forth in the
applicable federal or state rules of civil procedure governing service of
original process) on the business day after de-posit with such courier.
(i) If to the Buyer:
Education Management Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
(ii) If to the Seller or any Seller Trust:
Xxxxxxx X. Xxxxxxxxx
c/o Argosy Education Group, Inc.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(b). The parties agree that any order or judgment rendered by an
Illinois Court shall be given full force and effect in any local, state, federal
or foreign court or tribunal worldwide. The parties agree to cooperate fully to
ensure the enforceability of any such order or judgment any-where in the world.
In addition, each Seller Trust agrees that the foregoing provisions shall be
binding upon any successor trustee or protector, as applicable, to such Trust,
and notice shall be promptly made to Buyer at the address provided herein of any
change in the identity of any trus-tee or protector, or in the event that any
Trust is re-domiciled or reorganized under the laws of any jurisdiction other
than as in effect as of the date hereof.
Each Seller Trust acknowledges that it has been given a copy of the
Purchase Agreement (as executed by Buyer and Seller) and the Escrow Agreement
and afforded ample opportunity to read them, and each of the undersigned is
familiar with the terms and conditions set forth in the Purchase Agreement and
the Escrow Agreement.
This Joinder Agreement may be executed in one or more counterparts
(including by means of telecopied signature pages) all of which taken together
shall constitute one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Joinder
Agreement as of September 26, 2001.
AGREED AND ACCEPTED:
EDUCATION MANAGEMENT
CORPORATION
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
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Its: Chief Executive Officer
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MCM TRUST
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, trustee
XXXXXXX X. XXXXXXXXX
DYNASTIC TRUST
/s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx, trustee
XXXXXXX X. XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
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