EXHIBIT 2.3
CONSENT AND NON-CONTRAVENTION AGREEMENT
This CONSENT AND NON-CONTRAVENTION AGREEMENT, dated as of November 14,
2000 (the "Agreement"), is by and among Xxxxxxxxxxxxxx.xxx, LLC, a California
limited liability company ("Earlychildhood"), the holders of the outstanding
membership interests in Earlychildhood listed on the signature page(s) hereto
(collectively, the "Holders" and, individually, a "Holder") and XxxxxxxXxxx.xxx,
Inc., a Delaware corporation ("SmarterKids") Capitalized terms used in this
Agreement, unless specifically defined herein, shall have the meanings given to
them in the Contribution Agreement and Plan of Reorganization and Merger, dated
as of the date hereof (the "Merger Agreement"), by and among Earlychildhood,
SmarterKids, S-E Educational Holdings Corp., a newly-formed Delaware
corporation, one-half of the issued and outstanding capital stock of which is
owned by each of Earlychildhood and SmarterKids ("Holdings") and S-E Educational
Merger Corp., a newly-formed Delaware corporation and a wholly-owned subsidiary
of Holdings ("Merger Sub").
WHEREAS, as of the date hereof, each of the Holders owns of record and
beneficially membership interests in Earlychildhood (the "LLC Interests") as is
set forth on a percentage interest basis next to the name of such Holder in
Column II on Annex A hereto;
WHEREAS, concurrently with the execution of this Agreement,
Earlychildhood and SmarterKids have entered into the Merger Agreement pursuant
to which, and upon the terms and subject to the conditions set forth therein,
the combination of Earlychildhood and SmarterKids shall be effected through (i)
the contribution to Holdings by the holders of LLC Interests of all of the
right, title and interest in and to their entire ownership interest in
Earlychildhood (the "Contribution") and (ii) the merger of Merger Sub with and
into SmarterKids such that SmarterKids becomes a wholly-owned subsidiary of
Holdings (the "Merger" and, collectively with the Contribution, the
"Transactions");
WHEREAS, at the Effective Time, pursuant to Section 2.1 of the Merger
Agreement, all outstanding LLC Interests shall be exchanged for shares of
Holdings Common Stock and cash in lieu of fractional shares of Holdings Common
Stock to be issued or paid in consideration therefor and pursuant to Section 2.3
of the Merger Agreement, all outstanding options to purchase LLC Interests will
be converted into options to purchase shares of Holdings Common Stock;
WHEREAS, pursuant to this Agreement, each Holder hereby acknowledges
and agrees that such Holder shall, at the Effective Time, receive in exchange
for the LLC Interests contributed by such Holder in the Contribution, such
number of shares of Holdings Common Stock as is set forth next to the name of
such Holder in Column IV of Annex A hereto; and
WHEREAS, as a condition to the willingness of Earlychildhood and
SmarterKids to enter into the Merger Agreement, SmarterKids has required that
the Holders agree, and in order to induce SmarterKids to enter into the Merger
Agreement, the Holders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
ARTICLE I.
SECTION 1.1 REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. As of the
date hereof and as of the date of the Closing under the Merger Agreement, each
Holder on its own behalf hereby represents and warrants with respect to itself
and its ownership of the LLC Interests as follows:
(a) Holder is the sole owner of record and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which meaning will apply for all purposes of this Agreement)
of, and has good title to, the LLC Interests set forth adjacent to such Holder's
name on Annex A, free and clear of any mortgage, pledge, hypothecation, rights
of others, claim, security interest, charge, encumbrance, title defect, title
retention agreement, voting trust agreement, interest, option, lien, charge or
similar restriction (including any restriction on the right to vote, sell or
otherwise dispose of the LLC Interests) or limitation (each, a "Lien") except
for immaterial Liens which shall not materially affect such Holder's ability to
perform its obligations under this Agreement.
(b) Except as set forth on Annex A, and except for the LLC Interests,
Holder does not, directly or indirectly, beneficially own or have any option,
warrant or other right to acquire any securities of Earlychildhood or any
securities that are convertible or exchangeable into or exercisable for any
securities of Earlychildhood, nor is Holder subject to any contract, commitment,
arrangement, understanding or relationship (whether or not legally enforceable),
other than this Agreement and the Operating Agreement, that allows or obligates
it to vote or acquire any securities of Earlychildhood. Holder has the
exclusive power to vote and dispose of the LLC Interests set forth adjacent to
such Holder's name on Annex A and has not granted a proxy to any other
individual, corporation, partnership (general or limited), limited liability
company, joint venture, association, trust, unincorporated organization or other
entity (collectively, a "Person") to vote or dispose of such LLC Interests,
subject to the limitations set forth in this Agreement.
(c) Each Holder that is a corporation or partnership, as the case may
be, is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization and has the power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(d) This Agreement and each Transaction Document to which Holder is a
party has been duly executed and delivered by Holder and, assuming due
authorization, execution and delivery of this Agreement by Earlychildhood and
SmarterKids, constitutes a valid and binding obligation of Holder enforceable
against Holder in accordance with their terms, except that (i) the
enforceability hereof or thereof may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereinafter in effect, affecting
creditors' rights generally and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
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(e) Neither the execution and delivery of this Agreement and each
Transaction Document to which Holder is a party, nor the performance by Holder
of its obligations hereunder or thereunder will, nor will the consummation of
the transactions contemplated by this Agreement and the Merger Agreement,
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration of any obligation or loss of any material benefit, or result in the
creation of any Lien on the LLC Interests under, or require a consent or waiver
under (collectively, a "Conflict"), (i) its organizational documents, (ii) any
note, bond, mortgage, indenture, lease, contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Holder is a party
or by which Holder is bound, to the extent such Conflict would materially affect
Holder's ability to consummate the transactions contemplated hereby or (iii) any
permit, franchise, license, statute, injunction, judgment, writ, decree, order,
ruling, rule or regulation applicable to Holder, to the extent such Conflict
would materially affect Holder's ability to consummate the transactions
contemplated hereby.
(f) Neither the execution and delivery of this Agreement nor the
performance by Holder of its obligations hereunder will violate any law, decree,
statute, rule or regulation applicable to Holder or require any order, consent,
authorization or approval of, filing or registration with, or declaration or
notice to, any corporation, Person, firm, Governmental Entity or public or
judicial authority, other than any required notices or filings pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder or the federal securities laws. There is
no beneficiary or holder of a voting trust certificate or other interest of any
trust of which any of the Holders is a trustee whose consent is required for the
execution and delivery of this Agreement or the compliance by the Holders with
the terms hereof.
ARTICLE II.
SECTION 2.1. TRANSFER OF THE SHARES; NON-INTERFERENCE.
(a) During the term of this Agreement, no Holder shall (i) tender
into any tender or exchange offer or otherwise sell, offer to sell, transfer,
pledge, assign, hypothecate or otherwise dispose of, or encumber with any Lien,
any of the LLC Interests; provided, that any Holder may distribute LLC Interests
on a pro rata basis to its members or partners to the extent it is obligated to
do so under the terms of its organizational documents, so long as, in either
case, such member or partner, as the case may be, executes, concurrently with
such transfer, a counterpart signature page hereto and agrees to be bound
hereby, (ii) other than in connection with this Agreement, deposit the LLC
Interests into a voting trust, enter into any voting agreement or similar
arrangement with respect to the LLC Interests or grant any proxy or power of
attorney with respect to the LLC Interests, or take any action inconsistent with
this Agreement
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or the Merger Agreement without having obtained the prior written consent of
SmarterKids, (iii) other than this Agreement, enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect sale,
transfer, pledge, assignment, hypothecation or other disposition of the LLC
Interests, (iv) take any action that would make any representation of such
Holder contained herein untrue or incorrect or would result in a breach by such
Holder of its obligations under this Agreement or a breach by Earlychildhood of
its obligations under the Merger Agreement or (v) take any action that would
have the effect of preventing or disabling such Holder from performing its
obligations under this Agreement or Earlychildhood from performing its
obligations under the Merger Agreement.
(b) Nothing herein shall prevent a Holder from transferring LLC
Interests by gift, transfer to a trust or distribution, provided that (i) any
such gift, transfer or distribution is permissible under Lock-Up Agreement
attached as Exhibit C to the Merger Agreement and (ii) each donee transferee or
distributee, as applicable, executes, concurrently with such gifts, transfer or
distribution, a counterpart signature page hereto and agrees to be bound hereby.
SECTION 2.2. ADJUSTMENTS.
(a) In the event (i) of any equity dividend, equity split,
recapitalization, reclassification, combination or exchange of equity interests
in Earlychildhood on, of or affecting the LLC Interests or the like or any other
action that would have the effect of changing any of the Holders' ownership of
membership interests in Earlychildhood or (ii) any of the Holders becomes the
beneficial owner of any additional membership interests in Earlychildhood, then
the terms of this Agreement will apply to the membership interests in
Earlychildhood held by any such Holder immediately following the effectiveness
of the events described in clause (i) or any such Holder becoming the beneficial
owner thereof, as described in clause (ii), as though they were LLC Interests
hereunder and the term LLC Interests shall be deemed to refer to and include
such membership interests in Earlychildhood.
(b) Each Holder hereby agrees, while this Agreement is in effect,
that Annex A hereof shall be updated from time to time, as applicable, to
increase the LLC Interests set forth therein to reflect any changes resulting
from the events described in Section 2.2(a) above. To the extent required under
the Merger Agreement, each of the events described in Section 2.2(a) above shall
require the prior written consent of SmarterKids.
SECTION 2.3. STOP TRANSFER. Each Holder hereby agrees with, and covenants
to, each other party hereto, that such Holder shall not request that
Earlychildhood register or permit the transfer of any of the LLC Interests,
unless such transfer is made in compliance with this Agreement (including the
provisions of Section 2.1 hereof). Earlychildhood agrees with, and covenants
to, each other party hereto that Earlychildhood shall not register or permit the
transfer of any of the LLC Interests, unless such transfer is made in compliance
with this Agreement (including the provisions of Section 2.1 hereof).
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ARTICLE III
SECTION 3.1. CONTRIBUTION OF LLC INTERESTS; NO INCONSISTENT AGREEMENT.
(a) Each Holder hereby agrees and commits that at the Closing,
following the satisfaction or, if applicable, waiver, of the conditions set
forth in the Merger Agreement, such Holder will contribute to Holdings, all of
the right, title and interest in and to such Holder's entire ownership interest
in Earlychildhood (as set forth in Annex A) and will accept in consideration
therefor, (i) that number of shares of Holdings Common Stock as is set forth
next to such Holder's name in Column IV of Annex A hereof, as such number of
shares of Holdings Common Stock may adjusted from time to time in accordance
with the terms of the Merger Agreement or any amendment thereto and (ii) an
amount of cash in lieu of fractional shares as calculated pursuant to the Merger
Agreement; provided, however, that the obligations of such Holder in this
Section 3.1(a) shall not survive the termination of this Agreement in accordance
with the terms hereof. Each of the Holders agrees that it will vote (or cause
to be voted) its LLC Interests against any Earlychildhood Acquisition Proposal
and against any action or agreement that would result in a breach in any respect
of any covenant, representation or warranty or any other obligation or agreement
under this Agreement or the Merger Agreement or which is intended to, or could
reasonably be expected to, impede, interfere with, delay, postpone or materially
adversely effect this Agreement, the Merger Agreement, the Contribution, the
other transactions contemplated by this Agreement and the Merger Agreement or
the benefits to SmarterKids resulting herefrom or therefrom. In addition, no
Holder will take any action, directly or indirectly, until the termination of
this Agreement to contravene, withdraw, modify or supersede its consent to the
Merger Agreement and the Contribution or to cause Earlychildhood to take any
action in contravention of the Merger Agreement or the transactions contemplated
thereby. Each Holder acknowledges receipt and review of a copy of the Merger
Agreement and the opportunity to consult its own legal counsel in regard to the
Merger Agreement and this Agreement.
(b) Each Holder agrees that it shall not enter into any agreement or
understanding with any Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained herein, including in this
Section 3.1.
SECTION 3.2. NO SOLICITATION. Prior to the termination of this Agreement in
accordance with its terms, each Holder agrees (a) that it will not, nor will it
authorize or permit any of its employees, financial advisors, attorneys,
accountants or other representatives or agents to, directly or indirectly
through another Person, (i) solicit, initiate or encourage any inquiries, offers
or proposals by or from any Other Party that constitute, or could reasonably be
expected to lead to, any Earlychildhood Acquisition Proposal, (ii) enter into or
execute any agreement with respect to an Earlychildhood Acquisition Proposal,
(iii) engage in or continue negotiations or discussions with any Other Party
concerning, or, except pursuant to a governmental request for information,
otherwise communicate or explore or provide any non-public information to any
Other Party relating to, any Earlychildhood Acquisition Proposal, (iv) make or
authorize any public statement, recommendation or solicitation in support of any
Earlychildhood Acquisition Proposal, or (v) take, or consent to take, any other
action inconsistent with its obligations under
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this Section 3.2 or Earlychildhood's obligation under Section 5.4 of the Merger
Agreement, and (b) that it will notify SmarterKids in writing as promptly as
practicable (and in any event within 24 hours) if any Earlychildhood Acquisition
Proposal is received or any inquiries, proposals or offers with respect to an
Earlychildhood Acquisition Proposal are received by, any information or
documents are requested from, or any negotiations or discussions are sought to
be initiated or continued with, it or any of its Affiliates, such written notice
to contain the identity of the other party (including the name of such other
party and a copy of any offer or proposal and any supporting documentation), and
the terms and conditions of such proposal or offer.
ARTICLE IV.
SECTION 4.1. TERMINATION. This Agreement shall become effective on the
date hereof and shall continue in effect until the earlier of (i) the
termination of the Merger Agreement in accordance with its terms and (ii) the
consummation of the Transactions.
SECTION 4.2. EXPENSES. All costs and expenses incurred by any of the
parties hereto will be borne by Earlychildhood.
SECTION 4.3. RELIANCE. Holder agrees and acknowledges that SmarterKids is
entering into the Merger Agreement in reliance upon each Holder's execution and
delivery of this Agreement.
SECTION 4.4. FURTHER ASSURANCES. Each party hereto will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
SECTION 4.5. ENFORCEMENT OF THE AGREEMENT. The Holders acknowledge that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that parties hereto will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
SECTION 4.6. MISCELLANEOUS.
(a) All representations, warranties, covenants and agreements
contained herein will terminate upon the termination of this Agreement.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
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(c) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements among such parties with respect to such matters. This Agreement may
not be amended, changed, supplemented, waived or otherwise modified, except upon
the delivery of a written agreement executed by the parties hereto.
(d) This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of laws
principles thereof.
(e) With respect to any suit, action or proceeding initiated by a
party to this Agreement arising out of, under or in connection with this
Agreement, each Holder, Earlychildhood and SmarterKids submits to the exclusive
jurisdiction of any state or federal court sitting in the State of Delaware and
irrevocably waive, to the fullest extent permitted by law, any objection that
they may now have or hereafter obtain to the laying of venue in any such court
in any such suit, action or proceeding.
(f) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
(g) All notices and other communications hereunder will be in writing
and will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by facsimile, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to Earlychildhood:
Xxxxxxxxxxxxxx.xxx, LLC
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
If to a Stockholder:
At the address(es) beneath such Stockholder's name on Annex A to
this Agreement.
In each case, with copies to:
(i) Xxxxxx & Xxxxxxx
000 X. Xxxxx Xx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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(ii) XxxxxxxXxxx.xxx, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
(iii) Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(h) This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one agreement.
(i) This Agreement shall be executed at the same time as the Merger
Agreement and at such time shall be valid and binding obligations of each of the
parties and signatories thereto.
(j) Neither this Agreement nor any of the rights or obligations of
any party hereto may be assigned without the prior written consent of the other
parties hereto. Any such assignment shall not, however, act as a release of the
assigning Person. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, and no other Person shall have any right, benefit or obligation
hereunder.
(k) If any term or provision of this Agreement is determined to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
(l) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
XXXXXXXXXXXXXX.XXX, LLC
By:
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Name:
Title:
XXXXXXXXXXX.XXX, INC.
By:
----------------------------------
Name:
Title:
HOLDERS:
EDUCATIONAL SIMON, L.L.C.,
a Delaware limited liability company
By:
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Name:
Title:
QTL CORPORATION, a California corporation
By:
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Title:
XXXXXXX X. XXXXXX, an Individual
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Xxxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, an Individual
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Xxxxxx X. Xxxxxx
ACACIA CAPITAL PARTNERS, LLC,
a California limited liability company
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Name: Xxxxxx Xxxxxx
Title:
XXXXX XXXX, an Individual
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Xxxxx Xxxx
XX. XXXXXX XXXX, an Individual
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Xx. Xxxxxx Xxxx
XXXXXXX XXXXXX, an Individual
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Xxxxxxx Xxxxxx
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ANNEX A
Column I Column II Column III Column IV
----------------------------- ------------------ ------------------------ -----------------------
Number of shares of
Holdings Common Stock
Current LLC Interest as to be Received at the
Name of Holder Class of Interest of the date hereof Effective Time
----------------------------- ------------------ ----------------------- -----------------------
Educational Simon, L.L.C. Class A 47.12111% 23,537,465
QTL Corporation Class B 41.05427% 19,205,598
Xxxxxx Xxxxxx Class B 1.26662% 592,537
Xxxxxxx Xxxxxx Class B 2.50307% 1,170,961
Acacia Capital Partners, LLC Class C .43493% 101,621
Xxxxx Xxxx Class C .33333% 77,882
Xx. Xxxxxx Xxxx Class C .33333% 77,882
Xxxxxxx Xxxxxx Class C .33333% 77,882
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