AMENDMENT NO. 1 TO THE UNDERWRITING AGREEMENT
EXHIBIT
1.2
AMENDMENT
NO. 1 TO THE UNDERWRITING AGREEMENT
This
Amendment, dated October 26, 2009 (the "Amendment"), to the Underwriting
Agreement, dated as of November 29, 2007 (the "Underwriting Agreement"), by and
between Camden Learning Corporation, a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxx & Co. Inc. Capitalized terms used, but not defined, herein
shall have the meanings given to such terms in the Underwriting
Agreement.
WHEREAS,
the Company consummated its initial public offering in November 2007, pursuant
to which the Company issued, after giving effect to the exercise of a portion of
the overallotment option, 6,626,300 units (each a "Unit") consisting of one
share of common stock, par value $0.0001 per share, of the Company (the "Common
Stock") and one warrant to purchase one share of Common Stock at an exercise
price of $5.50 per share (the "Public Warrants"); and
WHEREAS,
in conjunction with its initial public offering, the Company issued to the
Representative the right, but not the obligation, for a purchase price of
$100.00, to purchase an aggregate of 625,000 units (the "Representative Units")
identical to the Units in all respects except the exercise price of the warrants
underlying the Representative Units was $6.71 per share of Common Stock and that
such Representative Units carried a purchase price of $9.60 and could be
exercised on a cashless basis; and
WHEREAS,
each of the Representative's and the Company's duties and obligations are
governed by the Underwriting Agreement; and
WHEREAS,
the Company has entered into that certain Agreement and Plan of Reorganization
dated August 7, 2009, as amended in its entirety by the Amended and Restated
Agreement and Plan of Reorganization dated August 11, 2009, and as further
modified by Amendment No. 1 thereto dated October 26, 2009 (as amended, the
"Merger Agreement"), by and among the Company, Dlorah Subsidiary, Inc. ("Merger
Sub"), wholly-owned subsidiary of the Company and Dlorah, Inc., a South Dakota
corporation which owns and operates National American University (Dlorah, Inc.,
together with its divisions and subsidiaries, is referred to herein as
"Dlorah"), pursuant to which Merger Sub will merge with and into Dlorah with
Dlorah surviving as a wholly-owned subsidiary of the Company (the "Merger"). As
a result of the Merger, the stockholders of Dlorah will contribute all of the
outstanding capital stock of Dlorah to the Company in exchange for shares of a
newly created class of common stock, common stock purchase warrants and
restricted shares of the Company's currently authorized common stock (the
"Transaction").
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
to amend the Underwriting Agreement as set forth herein:
1.1 Deferred
Compensation. Section 1.1.3 shall be amended and restated in its entirety
as follows:
"On the
Closing Date and, if applicable, on the Option Closing Date (as defined in
Section 1.2.2), Xxxxxx Xxxxxx & Co. agrees to deposit into the Trust Account
a portion of the Underwriters' discount equal to $0.24 per Unit in the Offering
and, if applicable, a portion of the discount equal to $0.24 per Option Unit (as
defined in Section 1.2.1) (the "Deferred Fees"). Upon the consummation of a
Business Combination, Xxxxxx Xxxxxx & Co. shall be entitled to receive a
portion of the Deferred Fees equal to $1,750,000 and shall forfeit any rights or
claims to the balance of the Deferred Fees and interest accrued thereon. In the
event the Company is unable to consummate the Transaction or any other Business
Combination and CST, the trustee of the Trust Account, commences liquidation of
the Trust Account, Xxxxxx Xxxxxx & Co. hereby agrees to the following: (i)
to forfeit any rights or claims to the Deferred Fees and any interest accrued
thereon; and (ii) that the Deferred Fees shall be distributed on a pro-rata
basis among the holders of the shares of Common Stock included in the Units sold
in the Offering along with any interest accrued thereon, net of
taxes.
1.2 References to Certain
Terms. References to the following terms shall be revised as
follows:
All
references to "Securities" shall be amended to solely reference the Public
Securities; and
All
references to both "Representative's Purchase Option" and "Representative's
Warrants" are hereby deleted.
1.3 Securities Escrow
Agreement. Section 2.22.2 is hereby amended and restated in its entirety
as follows:
"The
Company has caused the Existing Stockholders to enter into an escrow agreement
("Securities
Escrow Agreement") with CST ("Escrow
Agent"), substantially in the
form annexed as Exhibit 10.3 to the Registration Statement, whereby (i) the
Common Stock owned by the Existing Stockholders (the "Existing Stockholders
Shares") will be held in escrow by the Escrow Agent, until one year from the
date of consummation of a Business Combination and (ii) the Placement Warrants
will be held in escrow by the Escrow Agent until such time that the Company
consummates a Business Combination; provided, however, (i) that if
the Escrow Agent is notified by the Company that the Company is being liquidated
at any time during the applicable Escrow Period (as that term is defined in the
Securities Escrow Agreement), then immediately prior to the effectiveness of
such liquidation, the Escrow Agent shall promptly destroy the certificates
representing the Existing Stockholders Shares and the Placement Warrants and
(ii) the Existing Stockholders may transfer up to 600,000 of the Existing
Stockholder Shares to certain institutional investors approved by the
Representative (the "Transferred Stock"), and in connection therewith, reduce
or
eliminate
the lock-up period with respect to the Transferred Stock. Subject to the
exception with respect to the Transferred Stock set forth above, during the
escrow period, the Existing Stockholders shall be prohibited from selling or
otherwise transferring such shares (except to spouses and children of Existing
Stockholders and trusts established for their benefit and as otherwise set forth
in the Securities Escrow Agreement) and, to the extent such Existing Stockholder
Securities are not transferred as Transferred Stock, will retain the right to
vote such shares during the Escrow Period. To the Company's knowledge, the
Securities Escrow Agreement is enforceable against each of the Existing
Stockholders and will not, with or without the giving of notice or the lapse of
time or both, result in a breach of, or conflict with any of the terms and
provisions of, or constitute a default under, any agreement or instrument to
which any of the Existing Stockholders is a party. The Securities Escrow
Agreement shall not be amended, modified or otherwise changed without the prior
written consent of the Representative."
2. Miscellaneous.
2.1 Severability. This
Amendment shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Amendment or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as part of this Amendment a provision as similar in
terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
2.2 Continuing Effect.
Except as amended by this Amendment, the Underwriting Agreement remains in full
force and effect.
IN
WITNESS WHEREOF, the undersigned have executed this Amendment to the
Underwriting Agreement as of the date first set forth above.
CAMDEN
LEARNING CORPORATION
By: 
Name:
Xxxxx Xxxxxxx
Title:
President and Chief
Executive Officer
XXXXXX XXXXXX & CO. INC.
By: 
Name: Xxxx Xxxxxx
Title: Managing
Director
