Exhibit 99.8
AMENDMENT AND JOINDER
This Amendment and Joinder among New Mountain Partners, L.P. ("New
Mountain"), MidOcean Capital Investors, L.P. (formerly DB Capital Investors,
L.P.) ("MidOcean") and the New Mountain Xxxxxxx Trust (the "Trust") is dated as
of January 14, 2004. The parties hereto wish to (a) amend the Shareholders'
Agreement by and between New Mountain and MidOcean, dated as of March 16, 2001
(the "Shareholders' Agreement"), so as to permit the transfer of 350,000 shares
of Series A Convertible Preferred Stock in Xxxxxxx Education, Inc. to the Trust
and (b) cause the Trust to become bound by the terms of the Shareholders'
Agreement. Capitalized terms used herein without definition have the respective
meanings set forth in the Shareholders' Agreement.
1. Amendment of Shareholders' Agreement.
(a) Section 2.2(b) of the Shareholders' Agreement is hereby amended and
restated in its entirety as follows (for ease of reference only, changed
language is indicated by blacklining below, but such blacklining shall have no
substantive effect in the Shareholders' Agreement):
"(b) a transfer of Subject Securities made in compliance with the
federal and all applicable state securities laws by an Investor to (i) a
controlled Affiliate of the Investor, (ii) any other Affiliate of the
Investor other than a controlled Affiliate with the permission of NMP,
whose permission shall not be unreasonable withheld, or (iii) the New
Mountain Xxxxxxx Trust; and"
(b) The proviso in Section 2.2 of the Shareholders' Agreement is hereby
amended and restated in its entirety as follows (for ease of reference only,
changed language is indicated by blacklining below, but such blacklining shall
have no substantive effect in the Shareholders' Agreement):
"PROVIDED, that no transfers pursuant to Section 2.2(a) and (b)
shall be permitted (and any such transfer shall be void and of no effect)
unless and until the transferee shall agree in writing, in form and
substance reasonably satisfactory to the Investors, to become bound, and
becomes bound, by all the terms of this Agreement. A transferee to whom
the Subject Securities may be transferred or pledged pursuant to Section
2.2(a) or (b) is hereinafter sometimes referred to as a `Permitted
Transferee'."
2. Joinder. The Trust hereby agrees, in accordance with Section 2.2 of the
Shareholders' Agreement, to become bound by the terms and conditions of the
Shareholders' Agreement to the same extent as if it were a party to such
agreement.
3. Effectiveness. This Amendment and Joinder shall become effective as of
the date first above written.
4. Confirmation of Shareholders' Agreement. Except as set forth in
paragraphs 1 and 2 of this Amendment and Joinder and in the Letter Agreement
between
New Mountain, DB Capital Investors, L.P. and Xxxxxxx Education, Inc., dated as
of November 14, 2002, the terms, conditions and agreements set forth in the
Shareholders' Agreement are hereby ratified and confirmed and shall continue in
full force and effect.
5. Counterparts; Governing Law. This Amendment and Joinder may be executed
in any number of counterparts, each of which shall be deemed an original and all
of which taken together shall constitute one and the same instrument. THIS
AMENDMENT AND JOINDER SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES.
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IN WITNESS WHEREOF, the undersigned has caused this Amendment and Joinder
to be executed as of the date first above written.
NEW MOUNTAIN PARTNERS, L.P.
By: NEW MOUNTAIN INVESTMENTS, L.P., its
general partner
By: NEW MOUNTAIN GP, LLC, its
general partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
MIDOCEAN CAPITAL INVESTORS, L.P.
By: MIDOCEAN CAPITAL PARTNERS, L.P., its
general partner
By: EXISTING FUND GP, LTD., its
general partner
By: /s/ Xxxxxx Spring
-------------------------------------
Name: Xxxxxx Spring
Title: Principal
THE NEW MOUNTAIN XXXXXXX TRUST
Bank of America, N.A.,
as Trustee
By: /s/ XxXx Xxxxxxx
-------------------------------------
Name: XxXx Xxxxxxx
Title: Vice President
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