Exhibit 99.11
3,000,000
Xxxxxxx Education, Inc.
Common Stock
UNDERWRITING AGREEMENT
----------------------
March 9, 2004
Credit Suisse First Boston LLC
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxx Partners LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Ladies and Gentlemen:
1. Introductory. New Mountain Partners, L.P. ("New Mountain"), New
Mountain Strayer Trust ("Trust") and MidOcean Capital Investors, L.P.
(formerly DB Capital Investors, L.P.) ("MidOcean" and, together with New
Mountain and the Trust, the "Selling Stockholders") propose severally to
sell an aggregate of 3,000,000 shares ("Firm Securities") of common stock,
par value $0.01 per share ("Securities"), of Xxxxxxx Education, Inc., a
Maryland corporation (the "Company"), and the Selling Stockholders, other
than the Trust, together with the individuals listed in Schedule A hereto
(such individuals, the "Individual Selling Stockholders") also propose
severally to sell to the several Underwriters named in Schedule A hereto
("Underwriters"), at the option of the Underwriters, an aggregate of not
more than 450,000 additional shares ("Optional Securities") of the
Company's Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "Offered
Securities." The Selling Stockholders and the Individual Selling
Stockholders hereby agree with the Company and with the Underwriters as
follows:
2. Representations and Warranties of the Company, the Selling
Stockholders and the Individual Selling Stockholders. (a) The Company
represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement (No. 333-112449) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("Commission") and
either (A) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or
(B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A)
an additional registration statement (the "additional registration
statement") relating to the Offered Securities may have been filed
with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under
the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been
duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b)
and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the
Company does not propose to amend the initial registration
statement or if an additional registration statement has been
filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) ("Rule 462(c)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it
does not propose to amend such registration statement, the date
and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by
such amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution
and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective
Time thereof. The initial registration statement, as amended at
its Effective Time, including all material incorporated by
reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to
as the "Initial Registration Statement." The additional
registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "Additional Registration
Statement." The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as
the "Registration Statements" and individually as a "Registration
Statement." The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if
no such filing is required) as included in a Registration
Statement, including all material incorporated by reference in
such prospectus, is hereinafter referred to as the "Prospectus."
No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of
this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior
to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences
do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information
furnished to the Company by (i) any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as
such in Section 7(c) hereof or (ii) any Selling Stockholder or
Individual Selling Stockholder specifically for use therein, it
being understood and agreed that the only such information
furnished by any such Selling Stockholder or Individual Selling
Stockholder consists of the information about such Selling
Stockholder or Individual Selling Stockholder under the caption
"Selling Stockholders" in the Prospectus.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent that
failure to be so qualified would not individually or in the
aggregate reasonably be expected to have a material adverse effect
on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect").
(iv) Each active subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its business
as described in the Prospectus; and each such subsidiary of the
Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification except where the failure to be so qualified would
not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; all of the issued and
outstanding capital stock of each such subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each such subsidiary of
the Company owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued, fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities. The Offered
Securities have been duly authorized and reserved for issuance
and, when issued upon conversion of the Series A Convertible
Preferred Stock of the Company (the "Series A Preferred Stock") in
accordance with the Articles Supplementary relating to the Series
A Preferred Stock (the "Articles Supplementary") or upon exercise
of stock options, as applicable, will be validly issued, fully
paid and non-assessable, and the issuance of such Offered
Securities by the Company to the Selling Stockholders and the
Individual Selling Stockholders, as applicable, will not be
subject to any preemptive rights.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the offering of the
Offered Securities.
(vii) Other than the registration rights agreement, dated May
15, 2001, entered into by and among the Company, New Mountain and
MidOcean, as amended pursuant to the Letter Agreement dated
November 14, 2002 between the Company and New Mountain and
MidOcean, and the Letter Agreement dated February 3, 2004 between
the Company and New Mountain and MidOcean (the "Registration
Rights Agreement"), there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Act.
(viii) The Securities are listed on the Nasdaq Stock Market's
National Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except (i)
such as have been obtained and made under the Act (ii) the filing
of the Prospectus in accordance with Rule 424(b), if necessary,
and (iii) such as may be required under state securities laws.
(x) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties, including, without limitation, the Higher Education
Act of 1965, as amended, and the regulations promulgated
thereunder (the "HEA"), or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
except where such breach, violation or default would not
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. The execution, delivery and performance
of this Agreement, and the consummation of the transactions herein
contemplated will not result in a breach of the charter or by-laws
of the Company or any such subsidiary. The sale of the Offered
Securities by the Selling Stockholders and the Individual Selling
Stockholders will not constitute a change in ownership resulting
in a "change of control" of the Company pursuant to the applicable
regulations promulgated under the HEA or any applicable state
statute or regulation.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
affect the value thereof or interfere with the use made or to be
made thereof by them, except in each case where such failure would
not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and except as disclosed in
the Prospectus, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with
no exceptions that would interfere with the use made or to be made
thereof by them, except in each case where such failure would not
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them, including, without limitation, all
authorizations required for participation in federal financial aid
programs under Title IV ("Title IV Programs") of the HEA, except
where such failure would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and
have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
subsidiaries, would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
threatened that would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names
servicemarks and licenses and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them,
or presently employed by them, except where such failure would not
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect;
and the Company is not aware of any pending investigation which
would reasonably be expected to lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or
would materially and adversely affect the ability of the Company
to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(xviii) The financial statements included in each
Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis and
the schedules included in each Registration Statement present
fairly the information required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except for dividends paid on
the Securities consistent with past practice, payment-in-kind
dividends made by the Company in respect of the Series A Preferred
Stock consistent with the terms of the Articles Supplementary and
as otherwise disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(xx) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 and files reports with the Commission on the Electronic
Data Gathering, Analysis, and Retrieval (XXXXX) system.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(xxii) Except for Xxxxxxx University, Inc., a Maryland
corporation ("Xxxxxxx University"), the Company has no subsidiary
that meets any of the following conditions: (A) the Company's and
its other subsidiaries' investments in and advances to the
subsidiary exceed five percent of the total assets of the Company
and its subsidiaries consolidated as of the end of the most
recently completed fiscal year; (B) the Company's and its other
subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of the subsidiary exceeds five percent
of the total assets of the Company and its subsidiaries
consolidated as of the end of the most recently completed fiscal
year; or (C) the Company's and its subsidiaries' equity in the
income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in
accounting principle of the subsidiary exceeds five percent of
such income of the Company and its subsidiaries consolidated for
the most recently completed fiscal year.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) On such Closing Date and on each Closing Date hereinafter
mentioned, such Selling Stockholder will have valid and
unencumbered title to the shares of the Series A Preferred Stock
that will be converted into the Offered Securities to be delivered
by such Selling Stockholder on such Closing Date and on such
Closing Date, and on each Closing Date hereinafter mentioned, such
Selling Stockholder will have valid and unencumbered title to the
Offered Securities and full right, power and authority to enter
into this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on
such Closing Date hereunder; and upon the delivery of and payment
for the Offered Securities on each Closing Date hereunder,
assuming such Underwriters have no notice of any adverse claim,
the several Underwriters will acquire valid and unencumbered title
to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date. The Selling Stockholders have
delivered to the Company the notice required under the Articles
Supplementary relating to the conversion of shares of Series A
Preferred Stock into the Offered Securities.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the
statement therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior
to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. The two preceding sentences
apply only to the extent that statements in or omissions from a
Registration Statement or the Prospectus are based upon written
information furnished to the Company by such Selling Stockholder
specifically for use therein, it being understood and agreed that
the only such information furnished by any such Selling
Stockholder consists of the information about such Selling
Stockholder under the caption "Selling Stockholders" in the
Prospectus.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter or, to the
knowledge of such Selling Stockholder, the Company for a brokerage
commission, finder's fee or other like payment in connection with
the offering of the Offered Securities.
(c) Each Individual Selling Stockholder severally represents and
warrants to, and agrees with, the several Underwriters that:
(i) On such Closing Date and on each Closing Date hereinafter
mentioned, such Individual Selling Stockholder will have valid and
unencumbered title to the options that will be exercised for the
Offered Securities to be delivered by such Individual Selling
Stockholder on such Closing Date and on such Closing Date, and on
each Closing Date hereinafter mentioned, such Individual Selling
Stockholder will have valid and unencumbered title to the Offered
Securities and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Individual Selling Stockholder
on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder,
assuming such Underwriters have no notice of any adverse claim,
the several Underwriters will acquire valid and unencumbered title
to the Offered Securities to be delivered by such Individual
Selling Stockholder on such Closing Date. The Individual Selling
Stockholders have delivered to the Company the notice required
under the options relating to the exercise of the options for the
Offered Securities.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Individual
Selling Stockholder and any person that would give rise to a valid
claim against such Individual Selling Stockholder or any
Underwriter or, to the knowledge of such Individual Selling
Stockholder, the Company for a brokerage commission, finder's fee
or other like payment in connection with the offering of the
Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, each Selling
Stockholder agrees, severally and not jointly, to sell to the Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from
each Selling Stockholder, at a purchase price of $101.04 per share, the
number of Firm Securities set forth below the name of such Selling
Stockholder and opposite the name of such Underwriter in Schedule A hereto.
The Selling Stockholders will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of
the purchase price in Federal (same day) funds by official bank check or
checks or wire transfer to accounts at a bank acceptable to Credit Suisse
First Boston LLC ("CSFB") drawn to the order of New Mountain, the Trust and
MidOcean, respectively, at the office of Xxxxxxx Xxxx & Xxxxxxxxx LLP, at
8:30 A.M., New York time, on March 15, 2004, or at such other time not
later than seven full business days thereafter as CSFB and the Selling
Stockholders determine, such time being herein referred to as the "First
Closing Date." The certificates for the Firm Securities so to be delivered
will be duly indorsed or accompanied by duly executed blank stock powers so
as to validly transfer title to the Representatives for the account of the
Underwriters. The Company will cause its transfer agent to reissue such
securities in definitive form, in such denominations and registered in such
names as CSFB requests and such reissued securities will be made available
by the Company for checking and packaging at the above office of Xxxxxxx
Xxxx & Xxxxxxxxx LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company,
the Selling Stockholders, other than the Trust, and the Individual Selling
Stockholders from time to time not more than 30 days subsequent to the date
of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for
the Firm Securities. The Selling Stockholders, other than the Trust, and
Individual Selling Stockholders agree, severally and not jointly, to sell
to the Underwriters the respective numbers of Optional Securities set forth
below such Selling Stockholder's and Individual Selling Stockholder's name
in Schedule A hereto, as the case may be. In the event that less than all
of the Optional Securities are to be purchased, the Underwriters shall
purchase the Optional Securities in the following order: first from the
Individual Selling Stockholders pro rata until all of their Optional
Securities have been purchased and second from New Mountain and MidOcean
pro rata up to the total amount of Optional Securities being purchased.
Such Optional Securities shall be purchased from each Selling Stockholder
and Individual Selling Stockholder for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite
such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFB to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made
in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to
time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFB to the Company, the Selling
Stockholders, other than the Trust, and the Individual Selling
Stockholders.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "Optional Closing Date", which
may be the First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a "Closing Date"),
shall be determined by CSFB but shall be not later than five full business
days after written notice of election to purchase Optional Securities is
given. The Selling Stockholders, other than the Trust, will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFB
drawn to the order of the Selling Stockholder, other than the Trust, in
respect of the Optional Securities sold by each of them at the above office
of Xxxxxxx Xxxx & Xxxxxxxxx LLP. The Individual Selling Stockholders will
deliver the Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters,
against payment to the Company, as custodian for each of the Individual
Selling Stockholders, of the purchase price in Federal (same day) funds by
official bank check or checks or wire transfer to accounts at banks
acceptable to CSFB drawn to the order of the Individual Selling Stockholder
or the Company, as applicable, in respect of the Optional Securities being
sold by them at the above office of Xxxxxxx Xxxx & Xxxxxxxxx LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be duly indorsed or accompanied by duly executed blank
stock powers so as to validly transfer title to the Representatives for the
account of the Underwriters. The Company will cause its transfer agent to
reissue such securities in definitive form, in such denominations and
registered in such names as CSFB requests upon reasonable notice prior to
such Optional Closing Date and such reissued securities will be made
available by the Company for checking and packaging at the above office of
Xxxxxxx Xxxx & Xxxxxxxxx LLP at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
as set forth in the Prospectus.
5. Certain Agreements of the Company, the Selling Stockholders and
the Individual Selling Stockholders. (a) The Company agrees with the
several Underwriters, the Selling Stockholders and Individual Selling
Stockholders that:
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement, the Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (1)
(or, if applicable and if consented to by CSFB, subparagraph (4))
of Rule 424(b) not later than the earlier of (A) the second
business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant
to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement
and an additional registration statement is necessary to register
a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented
to by CSFB.
(ii) The Company will advise CSFB promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if
any) or the Prospectus and will not effect such amendment or
supplementation without CSFB's consent; and the Company will also
advise CSFB promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution
and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and
of the institution by the Commission of any stop order proceedings
in respect of a Registration Statement and will use its reasonable
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act, the Company will
promptly notify CSFB of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFB's
consent to, nor the Underwriters' delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make
generally available to its securityholders an earning statement
covering a period of at least 12 months beginning after the
Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration
Statement) that will satisfy the provisions of Section 11(a) of
the Act. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means
the 90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of
each Registration Statement (five of which will be signed and will
include all exhibits), each related preliminary prospectus, and,
so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
CSFB reasonably requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon
as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions
as CSFB designates; provided, however, that the Company is not
required (a) to file a general consent to service of process in
any jurisdiction in which it is not presently subject or (b) to
qualify as a foreign corporation, or make any education regulatory
filing, in any jurisdiction in which it is not so qualified. The
Company will continue such qualifications in effect so long as
required for the distribution.
(vii) For a period of 90 days after the date of the
Prospectus, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of
its Securities, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFB, except for (A) grants of stock options to
the Company's employees and directors pursuant to the terms of a
plan in effect on the date hereof, (B) issuances of Securities
pursuant to the exercise of such options or upon conversion of any
outstanding shares of Series A Preferred Stock and (C) issuances
of Securities pursuant to the Company's existing employee stock
purchase plan or dividend reinvestment plan (the "Lock-Up
Period").
(viii) Except as otherwise agreed to among the Company, the
Selling Stockholders and the Individual Selling Stockholders (but
in no event shall such agreement affect the obligations or
responsibilities of the Underwriters in this Section 5(a)(viii)),
the Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and
other expenses (including fees and disbursements of counsel for
the Underwriters up to a maximum of $2,000) incurred in connection
with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing of
memoranda relating thereto, for the filing fee incident to the
review by the National Association of Securities Dealers, Inc. of
the Offered Securities and for expenses incurred in printing and
distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the
Underwriters and to prospective purchasers of the Offered
Securities. The Underwriters shall pay for any travel expenses of
the Company's officers and employees (including the cost of the
rental of a private airplane used to travel to meetings with
prospective purchasers ("private airplane fees")) and any other
expenses reasonably incurred by the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities, except as otherwise provided in this
Agreement. The Underwriters shall pay their own costs and expenses
in connection with the transactions contemplated hereby,
including, without limitation, the fees and expenses of their
counsel and the expenses relating to any advertisement initiated
by them of the Offered Securities.
(b) Each Selling Stockholder and Individual Selling Stockholder
agrees with the several Underwriters and the Company that:
(i) Such Selling Stockholder or Individual Selling
Stockholder, as the case may be, will pay all expenses incident to
the performance of the obligations of such Selling Stockholder or
Individual Selling Stockholder, as the case may be, under this
Agreement, for all underwriting discounts and commissions, and for
any transfer taxes on the sale by the Selling Stockholder or
Individual Selling Stockholder, as the case may be, of the Offered
Securities to the Underwriters.
(ii) Each Selling Stockholder agrees to deliver to the
Representatives on or prior to the first Closing Date at which
such stockholder is selling Securities a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(iii) Each Selling Stockholder and Individual Selling
Stockholder agrees, for a period of 90 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or request the
Company to file with the Commission a registration statement under
the Act relating to, any additional shares of the Securities of
the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, including shares of
Series A Preferred Stock, enter into a transaction that would have
the same effect, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of
the Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale,
pledge or disposition, or enter into any such transaction, swap,
hedge or other arrangement, without, in each case, the prior
written consent of CSFB, except in the case of the Selling
Stockholders for (A) the transfer of the shares of Series A
Preferred Stock to the Company upon conversion of such shares into
the Offered Securities and (B) dispositions to affiliates of such
Selling Stockholder that agree to be bound by the provisions of
this Section 5(b)(iii) for the remainder of such 90-day period and
in the case of the Individual Selling Stockholders for
dispositions (W) of Securities acquired in connection with any
intra-fund transaction or reallocation pursuant to the terms of
any of the Company's employee benefit plans, (X) of Securities
acquired in connection with the exercise of any outstanding option
to acquire Securities that expires during this 90-day period, (Y)
following the termination of the executive officer's employment
with the Company or (Z) pursuant to the terms of this Agreement.
Notwithstanding the foregoing, in the event the Underwriters
exercise their right to purchase all of the Optional Securities
from the Selling Stockholders within 30 days subsequent to the
date of the Prospectus, then MidOcean's obligations set forth in
this Section 5(b)(iii) shall terminate at the same time as the
closing of the purchase of such Optional Securities and in the
event the Underwriters exercise their right to purchase a part,
but not all, of the Optional Securities from the Selling
Stockholders within 30 days subsequent to the date of the
Prospectus, then MidOcean's obligations set forth in this Section
5(b)(iii) shall terminate at the end of such 30-day period.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of
the representations and warranties on the part of the Company, the Selling
Stockholders and the Individual Selling Stockholders, as applicable,
herein, to the accuracy of the statements of Company officers made pursuant
to the provisions hereof, to the performance by the Company, the Selling
Stockholders and the Individual Selling Stockholders, as applicable, of
their obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of
this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement to be
filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP ("PWC") confirming that they are
independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the financial statements
and schedules examined by them and included or
incorporated by reference in the Registration Statements
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified Public
Accountants for a review of interim financial information
as described in Statement of Auditing Standards No. 100,
Interim Financial Information, on the unaudited financial
statements included or incorporated by reference in the
Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that:
(A) at the date of the latest
available balance sheet read by such
accountants, or at a subsequent specified date
not more than three business days prior to the
date of such letter, there was any change in the
capital stock or any increase in long-term
liabilities of the Company and its consolidated
subsidiaries or, at the date of the latest
available balance sheet read by such
accountants, there was any decrease in total
assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(B) for the period from the closing
date of the latest income statement included in
the Prospectus to the closing date of the latest
available income statement read by such
accountants there were any decreases, as
compared with the corresponding period of the
previous year and with the period of
corresponding length ended the date of the
latest income statement included in the
Prospectus, in income from operations, net
income or net income per share amounts;
except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iv) they have compared dollar amounts (or
percentages derived from such dollar amounts) and other
financial information specified by the Representatives
contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's
accounting system or are derived directly from such
records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures, in each case
specified in such letter and have found such dollar
amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (A) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean
the initial registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly
prior to its Effective Time, (B) if the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution
and delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement
as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its
Effective Time, and (C) "Prospectus" shall mean the prospectus
included in the Registration Statements. All financial statements
and schedules included in material incorporated by reference into
the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by CSFB. If the
Effective Time of the Additional Registration Statement (if any)
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time
the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been
consented to by CSFB. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of
this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no
stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of any
Selling Stockholder, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating, if
any, of any debt securities, if any, of the Company by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities, if any, of the Company
(other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading,
of such rating, if any); (iii) any material suspension or material
limitation of trading in securities generally on the New York
Stock Exchange or on the Nasdaq National Market, or any setting of
minimum prices for trading on such exchange, (iv) any suspension
of trading of any securities of the Company on any exchange or in
the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption
of settlements of securities or clearance services in the United
States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the
Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion,
dated such Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel
for the Company, to the effect that:
(i) The Company is duly qualified to do business
as a foreign corporation in good standing in all
jurisdictions (other than the State of Maryland) in which
its ownership or lease of property or the conduct of its
business requires such qualification, except to the
extent where such failure to be so qualified would not
reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(ii) Xxxxxxx University is duly qualified to do
business as a foreign corporation in good standing in all
jurisdictions in which its ownership or lease of property
or the conduct of its business requires such
qualification, except to the extent where such failure to
be so qualified would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect;
(iii) No consent, approval, authorization or
order of, or filing with, any governmental agency or body
or any court is required to be obtained or made by the
Company for the consummation of the transactions
contemplated by this Agreement in connection with the
sale of the Offered Securities, except (A) such as have
been obtained and made under the Act and (B) such as may
be required under state securities and education laws;
(iv) The execution, delivery and performance of
this Agreement and the consummation of the transactions
herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation
or order of any governmental agency or body or any court
having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any material
agreement or instrument known to such counsel to which
the Company or any such subsidiary is a party or by which
the Company or any such subsidiary of the Company is
bound or to which any of the properties of the Company or
any such subsidiary is subject, except, in each such
case, where such breach, violation or default would not
reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and
(v) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under
the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that
purpose have been instituted or are pending or threatened
under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto
(except for any material incorporated by reference), as
of their respective effective or issue dates, complied as
to form in all material respects with the requirements of
the Act and the Rules and Regulations.
In rendering such opinions, such counsel may state that
(i) its opinion is limited to matters governed by the Federal laws
of the United States of America and the laws of the State of New
York and (ii) it has relied, as to matters of fact and to the
extent it deems proper, on certificates of responsible officers of
the Company or public officials. In addition, such counsel may
state that, notwithstanding the foregoing, it does not express any
opinion with the respect to any federal, state or other applicable
education laws or regulations.
In addition to the matters set forth above, such
counsel shall state that, although it has not undertaken to
investigate or verify independently, and does not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or any
amendment thereto except to the extent stated above, no facts have
come to such counsel's attention that would lead them to believe
that the Registration Statement or any amendment thereto, as of
its effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, or
any amendment or supplement thereto, as of its issue date or as of
such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood
that such counsel need not express any opinion as to (A) the
financial statements or other financially derived statistical
data, or (B) any statements related to education regulatory issues.
(e) The Representatives shall have received
opinions, dated such Closing Date, of Xxxxx & Xxxxxxx L.L.P.,
special Maryland and regulatory counsel for the Company,
substantially in the forms attached hereto as Exhibit A-1 and
Exhibit A-2.
(f) The Representatives shall have received an opinion,
dated such Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for New Mountain and the Trust, substantially in the
form attached hereto as Exhibit B.
(g) The Representatives shall have received an opinion,
dated such Closing Date, of Xxxxxxxx & Xxxxx LLP, counsel for
MidOcean, substantially in the form attached hereto as Exhibit C.
(h) The Representatives shall have received an opinion,
dated such Optional Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx LLP,
counsel for the Individual Selling Stockholders, substantially in
the form attached hereto as Exhibit D.
(i) The Representatives shall have received from Mayer,
Brown, Xxxx & Maw LLP, counsel for the Underwriters, such opinion
or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders, the
Individual Selling Stockholders and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering
such opinion, Mayer, Brown, Xxxx & Maw LLP may rely as to the
incorporation of the Company and all other matters governed by
Maryland law upon the opinion of Xxxxx & Xxxxxxx, L.L.P. referred
to above.
(j) The Representatives shall have received a
certificate, dated such Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop
order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) or Rule 462(b) was filed pursuant to
Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the
time the Prospectus was printed and distributed to any
underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial
or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(k) The Representatives shall have received a letter,
dated such Closing Date, of PWC, which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
The Selling Stockholders, the Individual Selling Stockholders and the
Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives
reasonably requests. CSFB may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter, its partners, members,
directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by (i) any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in subsection (c) below or (ii) any Seller Stockholder or Individual
Selling Stockholder specifically for use therein, it being understood and
agreed that the only such information furnished by any Selling Stockholder
or Individual Selling Stockholder consists of the information about such
Selling Stockholder or Individual Selling Stockholder under the caption
"Selling Stockholders" in the Prospectus; provided, however, that with
respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus the indemnity, hold
harmless and reimbursement agreements contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such Underwriter
under the Act in connection with such purchase and any such loss, claim,
damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy
of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter.
Insofar as the foregoing indemnity agreement, or the
representations and warranties contained in Section 2(a)(ii), may permit
indemnification for liabilities under the Act of any person who is an
Underwriter or a partner or controlling person of an Underwriter within the
meaning of Section 15 of the Act and who, at the date of this Agreement, is
a director, officer or controlling person of the Company, the Company has
been advised that in the opinion of the Commission such provisions may
contravene Federal public policy as expressed in the Act and may therefore
be unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Company
of expenses incurred or paid by a director, officer or controlling person
in the successful defense of any action, suit or proceeding) is asserted by
such a person, the Company will submit to a court of appropriate
jurisdiction (unless in the opinion of counsel for the Company the matter
has already been settled by controlling precedent) the question of whether
or not indemnification by it for such liabilities is against public policy
as expressed in the Act and therefore unenforceable, and the Company will
be governed by the final adjudication of such issue.
(b) Each of the Selling Stockholders and Individual Selling
Stockholders, as stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, members, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
such Selling Stockholder or Individual Selling Stockholder shall only be
subject to indemnification, hold harmless and reimbursement obligations
under this subsection (b) only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission is based upon and
in conformity with written information provided by such Selling Stockholder
or Individual Selling Stockholder relating to such Selling Stockholder or
Individual or Selling Stockholder, as applicable, specifically for use
therein, it being understood and agreed that the only such information
furnished by any such Selling Stockholder or Individual Selling Stockholder
consists of the information about such Selling Stockholder or Individual
Selling Stockholder, as applicable, under the caption "Selling
Stockholders" in the Prospectus; provided, however, that with respect to
any untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus the indemnity, hold harmless and
reimbursement agreements contained in this subsection (b) shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered
Securities was required to be delivered by such Underwriter under the Act
in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the Prospectus if
the Company had previously furnished copies thereof to such Underwriter;
and provided, further, that the liability under this Section 7 of each
Selling Stockholder and Individual Selling Stockholder shall be limited to
an amount equal to the aggregate net proceeds, after deducting underwriting
discounts and commissions, received by such Selling Stockholder or
Individual Selling Stockholder, as applicable, from the sale of the Offered
Securities sold by such Selling Stockholder or Individual Selling
Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and each Selling Stockholder, its partners, directors and officers and each
person, if any, who controls each Selling Stockholder within the meaning of
Section 15 of the Act and each Individual Selling Stockholder against any
losses, claims, damages or liabilities to which the Company, such Selling
Stockholder or Individual Selling Stockholder, as a stockholder, may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company,
each Selling Stockholder and each Individual Selling Stockholder, as a
stockholder, in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance
figures appearing in the fourth paragraph under the caption "Underwriting"
and the information contained in the eleventh paragraph under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may
have under subsection (a), (b) or (c) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection
(a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on
behalf of an indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) above or, where the indemnified party is the Company or its
officers, directors or controlling persons, under subsection (c) above,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to
in subsection (a) or (c) above in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. If the indemnification
provided for in this Section 7 is unavailable to an indemnified party under
subsection (b) above or, where the indemnified party is a Selling
Stockholder or Individual Selling Stockholder, under subsection (c) above,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to
in subsection (b) or (c) above (i) in such proportion as is appropriate to
reflect the relative benefits received by such Selling Stockholder or
Individual Selling Stockholder on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
such Selling Stockholder or Individual Selling Stockholder on the one hand
and the Underwriters on the other in connection with the statements and
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations; provided, however,
that the liability under this Section 7 of each Selling Stockholder and
Individual Selling Stockholder, as a stockholder, shall be limited to an
amount equal to the aggregate net proceeds, after deducting underwriting
discounts and commissions, received by such Selling Stockholder or
Individual Selling Stockholder from the sale of the Offered Securities sold
by such Selling Stockholder or Individual Selling Stockholder, as
applicable. The relative benefits received by the Selling Stockholders and
the Individual Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Selling Stockholders and the Individual Selling Stockholders bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders, the
Individual Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company, the Selling Stockholders and
the Individual Selling Stockholders under this Section 7 shall be in
addition to any liability which the Company, the Selling Stockholders and
the Individual Selling Stockholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on
either the First or any Optional Closing Date and the aggregate number of
shares of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of shares of Offered Securities that the Underwriters are obligated
to purchase on such Closing Date, CSFB may make arrangements satisfactory
to the Selling Stockholders or the Individual Selling Stockholders, as the
case may be, for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by
such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Underwriters agreed
but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFB, the Selling Stockholders and the Individual Selling
Stockholders, as the case may be, for the purchase of such Offered
Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company, the Selling Stockholders or the
Individual Selling Stockholders, except as provided in Section 9, (provided
that if such default occurs with respect to Optional Securities after the
First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination).
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Individual Selling
Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, any Individual Selling Stockholders, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Offered Securities by the Underwriters is
not consummated, the Company, the Selling Stockholders and the Individual
Selling Stockholders shall remain responsible for the expenses to be paid
or reimbursed by them pursuant to Section 5 and the respective obligations
of the Company, the Selling Stockholders, the Individual Selling
Stockholders and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (v), (vi) or
(vii) of Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities. If the purchase of the Offered Securities by the Underwriters
is not consummated because of the termination of this Agreement because of
the occurrence of any event specified in clause (iii), (v), (vi) or (vii)
of Section 6(c), the Company will reimburse the Underwriters for 50% of the
cost of the private airplane fees paid by the Underwriters pursuant to
Section 5(a)(iii).
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives at, c/o Credit Suisse First Boston LLC,
Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions
Advisory Group, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Xxxxxxx Education, Inc., 0000 Xxxxxx
Xxxx., Xxxxx 0000, Xxxxxxxxx, XX 00000, Attention: Xxxxxx X. XxXxxxxx, if
sent to New Mountain or the Trust, will be mailed, delivered or telegraphed
and confirmed to it at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
or, if sent to MidOcean, will be mailed, delivered or telegraphed and
confirmed to it, at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx Xxxxx, or, if sent to the Individual Selling Stockholders,
will be mailed, delivered or telegraphed to him or them c/x Xxxxxxx
Education, Inc. at 0000 Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000,
Attention: Xxxxxx X. XxXxxxxx; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFB will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
The Company and each of the Selling Stockholders and Individual
Selling Stockholders hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one
of the counterparts hereof, whereupon it will become a binding agreement
among the Selling Stockholders, the Individual Selling Stockholders, the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
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
NEW MOUNTAIN STRAYER TRUST
By: Bank of America, N.A., Trustee
By: /s/ XxXx Xxxxxxx
-------------------------
Name: XxXx Xxxxxxx
Title: Vice President
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
XXXXXXX EDUCATION, INC.
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Senior V.P. and General Counsel
XXXXXX X. XXXXXXXXX,
solely as an Individual Selling Stockholder
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxx, Attorney-in-Fact
XXXXX X. XXXXXXX,
solely as an Individual Selling Stockholder
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxx, Attorney-in-Fact
XXXX X. XXXXX,
solely as an Individual Selling Stockholder
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxx, Attorney-in-Fact
XXXXXX X. XXXXXXXX,
solely as an Individual Selling Stockholder
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------
Name: Xxxxxx X. XxXxxxxx
XXXXX X. X'XXXXXX,
solely as an Individual Selling Stockholder
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx, Attorney-in-Fact
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
XXXXXX XXXXXX PARTNERS LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters
BY: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
SCHEDULE A
Number of Firm Securities to be Purchased by
Total Number of
Underwriter Firm Securities
----------- ---------------
Credit Suisse First Boston LLC.............. 1,177,250
Banc of America Securities LLC.............. 554,000
X.X. Xxxxxx Securities Inc.................. 346,250
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........ 277,000
Xxxxxx Brothers Inc......................... 277,000
Xxxxxx Xxxxxx Partners LLC.................. 138,500
Barrington Research Associates, Inc. ....... 10,000
First Analysis Securities Corporation ...... 10,000
Xxxxxxxx & Company, Inc. ................... 70,000
Xxxxx Xxxxxxx & Co. ........................ 70,000
SunTrust Capital Markets, Inc. ............. 70,000
Total............................. 3,000,000
=========
Number of Firm Securities to be Sold by
Number of Firm
Name of Selling Stockholder Securities
--------------------------- ----------
New Mountain Partners, L.P.................. 1,612,018
New Mountain Strayer Trust.................. 387,982
MidOcean Capital Investors, L.P............. 1,000,000
Total........................... 3,000,000
=========
Number of Optional Securities to be Sold by
Number of
Name Optional Securities
---- -------------------
New Mountain Partners, L.P................. 243,121
MidOcean Capital Investors, L.P............ 91,879
Xxxxxx X. Xxxxxxxxx........................ 50,000
Xxxxx X. Xxxxxxx........................... 41,250
Xxxx X. Xxxxx.............................. 10,417
Xxxxxx X. XxXxxxxx......................... 8,333
Xxxxx X. X'Xxxxxx......................... 5,000
Total......................... 450,000
=======
EXHIBIT A-1
[Maryland Opinion of Xxxxx & Xxxxxxx L.L.P.]
EXHIBIT A-2
[Regulatory Opinion of Xxxxx & Xxxxxxx L.L.P.]
EXHIBIT B
[Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP]
EXHIBIT C
[Opinion of Xxxxxxxx & Xxxxx LLP]
EXHIBIT D
[Opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP]
