1
EXHIBIT 10.23
FIRST AMENDMENT TO
STOCK OPTION AGREEMENT
This First Amendment to Stock Option Agreement is made and entered
into by and between National Education Corporation, a Delaware Corporation
("Company") and Xxxxx-Xxxxxx Publishing Corporation ("Optionee") as of December
31, 1995.
Recitals
1. Company and Optionee entered into that certain Stock Option
Agreement (the "Stock Option Agreement") dated as of February 28, 1995 pursuant
to which the Company granted Optionee a stock option to purchase from the
Company 290,000 shares of the stock of Optionee owned by the Company.
2. Company and Optionee desire to amend the Stock Option
Agreement to extend certain dates contained therein.
Agreement
Now, Therefore, for $10.00 and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged by the Company and
Optionee hereby agree as follows, to wit:
1. Section 2 of the Stock Option Agreement is hereby amended in
its entirety to hereafter read as follows, to wit:
2. Term of Option
Unless earlier exercised pursuant to Section 3 of this
Agreement, the Option shall terminate on, and shall not be exercisable
after the earlier of (a) March 31, 1997, or (b) the date, if any, the
Option is terminated pursuant to Section 8 below.
2. Subsection 3.1 of the Stock Option Agreement is hereby amended
in its entirety to hereafter read as follows, to wit:
3.1 Exercisability
This Option may only be exercised, in whole or in part, once
at any time after the earlier of (i) May 31, 1996 or (ii) any time one
or more Events of Default (which have not been cured within any
applicable cure
2
period) have occurred under and as defined in that
certain Revolving Line of Credit Note dated February 28, 1995 in the
original principal amount of $10,000,000.00 executed by the Company
and payable to the order of Optionee as renewed, modified and extended
by that certain Renewal and Extension Agreement dated as of December
31, 1995 between the Company and Optionee (said Resolving Line of
Credit Note as so renewed modified and extended by said Renewal and
Extension Agreement being herein referred to as the "Note"), until the
expiration of the term of the Option as provided in Section 2 hereof.
For purposes hereof, a business day shall mean any day which is not a
Saturday, Sunday or federal legal holiday.
3. Section 8 of the Stock Option Agreement is hereby amended in
its entirety to hereafter read as follows, to wit:
8. Redemption
At any time on or after the Credit Line Termination Date
(hereafter defined) and provided that the Option has not theretofore
been exercised, the Company may redeem the Option upon written notice
of such redemption and payment of the Redemption Price (hereafter
defined) by the Company to Optionee. Upon the written notice of such
redemption and payment of the Redemption Price by the Company to
Optionee on or after the Credit Line Termination Date, the Option, to
the extent not theretofore exercised, shall terminate for all purposes
and shall not be of any further force and effect; provided that such
termination shall not impair or affect Optionee's rights with respect
to Shares previously exercised pursuant to the Option or Shares
previously acquired by Optionee pursuant to the Option. The
"Redemption Price" shall mean the greater of (i) the Yield Amount
(hereafter defined) plus the Adjustment Amount (hereafter defined) or
(ii) $750,000 plus, if the Redemption Price is paid by the Company to
Optionee after December 31, 1995, an amount equal to $2,500 per day
for each day after December 31, 1995 until and including the earlier
of (x) March 31, 1996 or (y) the date of payment of the Redemption
Price by the Company to Optionee. The "Yield Amount" shall mean an
amount equal to (i) twenty-five percent (25%) per annum on the
principal balance from time to time outstanding from the Grant Date to
and including the Credit Line Termination Date; less (ii) all interest
which at any time has accrued under the Note from the Grant Date to
and including the Credit Line Termination Date. The "Adjustment
Amount" shall mean an amount equal to twenty-five percent (25%) per
annum on
-2-
3
the Yield Amount from the Credit Line Termination Date to and
including the date of payment of the Redemption Price by the Company
to Optionee. For purposes of this Section 8, the Credit Line
Termination Date means (i) March 31, 1996, if the indebtedness
evidenced by the Note is paid in full on such date and the Company has
not prior to March 31, 1996 agreed by a written notice delivered to
Optionee that the revolving line of credit available under and
evidenced by the Note has been terminated, (ii) the date on which the
indebtedness evidenced by the Note is fully pai, if the indebtedness
evidenced by the Note is not fully paid on March 31, 1996, or (iii)
the date on which both the indebtedness evidenced by the Note has been
fully paid and the Company has agreed by a written notice delivered to
Optionee that the revolving line of credit available under and
evidenced by the Note has been terminated, if the Company has agreed
by a written notice delivered to Optionee that the revolving line of
credit available under and evidenced by the Note is terminated prior
to March 31, 1996. The Redemption Price may be paid by the Company to
Optionee, at the Company's option, in either or a combination of (i)
cash, or (ii) shares of Optionee's common stock owned by the Company
having a fair market value equal to the Redemption Price (or such
balance thereof not otherwise paid in cash) based upon the close price
for shares of Optionee's common stock on the NASDAQ National Market on
the most recent day that Optionee's shares of common stock were traded
on the NASDAQ National Market prior to the date of full payment of the
Redemption Price by the Company to Optionee, provided that such shares
of Optionee's common stock paid in payment of the Redemption Price are
paid and delivered by the Company to Optionee free and clear of all
liens and encumbrances. In the event Optionee's common stock is no
longer traded on the NASDAQ National Market, then the fair market
value of Optionee's common stock for purposes of determining payment
of the Redemption Price shall be determined on such other basis as the
Company and Optionee shall mutually agree. Notwithstanding anything
contained in this Section 8 to the contrary, and unless Optionee
otherwise agrees in writing, the Company shall have no right to redeem
and terminate the Option pursuant to this Section 8 at anytime any one
or more Events of Default (as defined in the Note) exists and is
continuing. Nothing contained in this Agreement (i) shall be
construed to extend or to commit to extend the revolving line of
credit available under the Note or the maturity of the Note past March
31, 1996; or (ii) impair or affect Optionee's rights and remedies with
respect to any collateral securing the indebtedness evidenced by the
Note. The redemption of the Option pursuant to this
-3-
4
Section 8 may be made after notice of exercise of the Option has been
given by the Optionee to the Company provided that written notice of
such redemption and payment of the Redemption Price is made by the
Company to Optionee prior to the Exercise Date specified in Optionee's
notice of exercise of the Option to be given to the Company pursuant
to Section 3.2.
4. THIS FIRST AMENDMENT TO STOCK OPTION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
5. The Company covenants and warrants to Optionee that the
execution and delivery of this First Amendment to Stock Option Agreement by the
Company is not in contravention of and will not cause a default under any
agreement to which the Company is a party.
6. Except as amended hereby, the Stock Option Agreement shall
remain in full force in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have entered into this First Amendment
to Stock Option Agreement as of the date first above written.
"COMPANY" "OPTIONEE"
NATIONAL EDUCATION CORPORATION XXXXX-XXXXXX PUBLISHING
CORPORATION
By: By:
--------------------------- --------------------------
Name: Name:
-------------------- ---------------------
Title: Title:
-------------------- --------------------
-4-
