EXHIBIT (e)(10)
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to the Rights Agreement (the "Rights
Agreement") dated as of May 14, 1999 between Quest Education Corporation, a
Delaware corporation (the "Company"), and First Union National Bank, a national
banking association, as rights agent (the "Rights Agent"), is made as of June
26, 2000 between the Company and the Rights Agent.
WHEREAS, the Board of Directors of the Company (the "Board") has authorized
the execution and delivery by the Company of an Agreement and Plan of Merger,
dated as of June 26, 2000, by and among the Company, Xxxxxx, Inc., a Delaware
corporation ("Parent") and Odyssey Acquisition Corp., a Delaware corporation
("Purchaser");
WHEREAS, in connection therewith, the Board has determined in good faith
that certain amendments set forth below to the Rights Agreement are necessary
and desirable and, pursuant to Section 26 of the Rights Agreement, has duly
authorized, by a unanimous vote, such amendments to the Rights Agreement; and
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW THEREFORE, the parties hereby agree as follows:
1. Certain Definitions. For purposes of this Amendment, terms which are
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capitalized but not defined herein and which are defined in the Rights Agreement
shall have the meanings ascribed to them in the Rights Agreement.
2. Amendment to Section 1 of Rights Agreement. Section 1 of the Rights
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Agreement is hereby amended to add the following definitions:
(i) "Merger" shall mean the merger of Purchaser with and into the
Company pursuant to the Merger Agreement.
(ii) "Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of June 26, 2000, by and among Purchaser, Parent and the Company,
as the same may be amended from time to time in accordance with its terms.
(iii) "Purchaser" shall mean Odyssey Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent.
(iv) "Parent" shall mean Xxxxxx, Inc., a Delaware corporation.
3. Addition of Section 36 of the Rights Agreement. The Rights Agreement
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is hereby amended to add thereto Section 36, which provides as follows:
Section 36. The Merger Agreement.
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(a) Notwithstanding anything in this Agreement to the contrary, prior
to a Termination Event, no Distribution Date or Stock Acquisition Date
shall be deemed to have occurred, neither Purchaser, Parent nor any of
their Affiliates or Associates shall be deemed to have become an Acquiring
Person, and no Section 11(a)(ii) Event or Section 13 Event shall have
occurred, in each case by reason of execution or delivery of the Merger
Agreement, the making of the Offer (as defined in the Merger Agreement),
the acceptance for payment of shares of Common Stock (as defined in the
Merger Agreement) by Purchaser pursuant to the Offer, or the consummation
of the Merger. A "Termination Event" shall be deemed to have occurred if
and when the Merger Agreement is terminated in accordance with its terms.
(b) Nothing in this Agreement shall be construed to give any holder
of Rights or any other person any legal or equitable rights, remedies or
claims under this Agreement by virtue of any of the transactions
contemplated by the Merger Agreement.
4. Further Changes. Prior to the Cut-Off Date and after the Effective Time
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(as both terms are defined in the Merger Agreement), this Amendment may only be
amended by a written agreement signed by the parties hereto and approved by a
majority of the Board. Subsequent to the recomposition of the Board on the Cut-
Off Date (as defined in the Merger Agreement), this Amendment may only be
amended by a written agreement signed by the parties hereto and approved by a
majority of the Independent Directors (as defined in the Merger Agreement).
5. Governing Law. This Amendment shall be deemed to be a contract made
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under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and performed entirely within such State.
6. Entire Agreement. This Amendment contains the parties' entire
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understanding and agreement with respect to the subject matter hereof; and any
and all conflicting or inconsistent discussions, agreements, promises,
representations and statements, if any, between the parties or their
representatives that are not incorporated in this Amendment shall be null and
vote and are merged into this Amendment.
7. Counterparts. This Amendment may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
8. Severability. If any term, provision, covenant or restriction of this
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Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal or unenforceable,
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then the remainder of the terms, provisions, covenants or restrictions of this
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
9. Descriptive Headings. Descriptive headings of the several sections of
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this Amendment are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
10. Interpretation. Prior to the Cut-Off Date and after the Effective Time
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(as both terms are defined in the Merger Agreement), any interpretation of the
provisions of this Amendment shall be made by a majority of the Board, whose
interpretation shall be conclusive, final and binding upon the parties hereto
and the Purchaser and Parent. Subsequent to the recomposition of the Board on
the Cut-Off Date (as defined in the Merger Agreement), any interpretation of the
provisions of this Amendment shall be made by a majority of the Independent
Directors (as defined in the Merger Agreement), whose interpretation shall be
conclusive, final and binding upon the parties hereto and the Purchaser and
Parent.
11. Effectiveness. This Amendment shall be deemed effective as of June
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26, 2000 as if executed by both parties on such date. Except as expressly
amended by this Amendment, the Rights Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
QUEST EDUCATION CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
FIRST UNION NATIONAL BANK, as Rights Agent
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Corporate Trust Officer
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