<PAGE> 1 of 42
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Nobel Education Dynamics, Inc.
(Name of Issuer)
Common Stock, $0.001 Par Value
(Title of Class of Securities)
65488410
(CUSIP Number)
Terrance P. McGuire, c/o Testa, Hurwitz & Thibeault,
53 State Street, Boston, MA 02109
(617) 248-7000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 24, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box ___.
Check the following box if a fee is being paid with the
statement ___. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership
of five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect
to the subject class of securities, and for any subsequent
amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE> 2 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 2 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edison Venture Fund II, L.P. 22-3069982
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,516,129
EACH ___________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH ___________________________________________________
10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
PN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 3 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 3 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edison Partners II, L.P. 22-3069978
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON ___________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
PN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 4 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 4 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John H. Martinson ###-##-####
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON ___________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
IN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 5 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 5 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard J. Defieux ###-##-####
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON
WITH ___________________________________________________
10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
IN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 6 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 6 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gustav H. Koven, III ###-##-####
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON ___________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
IN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 7 of 42 Pages
SCHEDULE 13D
CUSIP NO. 65488410 Page 7 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Martin G. Chilek ###-##-####
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON ___________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
IN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 8 of 42
SCHEDULE 13D
CUSIP NO. 65488410 Page 8 of 42 Pages
__________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thomas A. Smith ###-##-####
__________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
__________________________________________________________________
3 SEC USE ONLY
__________________________________________________________________
4 SOURCE OF FUNDS*
N/A
__________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS ___
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
__________________________________________________________________
7 SOLE VOTING POWER
0
NUMBER OF ___________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 2,516,129
OWNED BY ___________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON ___________________________________________________
WITH 10 SHARED DISPOSITIVE POWER
2,516,129
__________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,516,129
__________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES ___
CERTAIN SHARES*
__________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.7%
__________________________________________________________________
14 TYPE OF REPORTING PERSON *
IN
__________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
<PAGE> 9 of 42
Item 1. Security and Issuer.
(a) This statement relates to common stock, par value
$.001 per share ("Common Stock"), of Nobel Education
Dynamics, Inc., a Delaware corporation (the "Issuer" or the
"Company").
(b) The principal executive offices of the Issuer are
located at Rosetree Corporate Center II, 1400 Providence
Road, Suite 3055, Media, PA 19063.
Item 2. Identity and Background.
(a) This statement is being filed by: Edison Venture
Fund II, L.P. ("Edison II"); Edison Partners II, L.P.
("Edison Partners II"); John H. Martinson, Richard J.
Defieux, Gustav H. Koven, III, Martin Chilek and Thomas A.
Smith (collectively, the "General Partners"). The General
Partners, Edison II, and Edison Partners II collectively are
referred to as the "Reporting Persons."
(b) The principal business address of the Reporting
Persons is 997 Lenox Drive, #3, Lawrenceville, NJ 08648.
(c) Edison II is a private limited partnership engaged
primarily in making private placement investments in
securities of companies. Edison Partners II is the sole
general partner of Edison II. The General Partners are
general partners of Edison Partners II.
(d) & (e) Each of the Reporting Persons has not been
(i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) during the last five
years, or (ii) a party, during the last five years, to a
civil proceeding of a judicial or administrative body of
competent jurisdiction which resulted in either of them
being subjected to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
(f) Edison II and Edison Partners II are limited
partnerships organized under the laws of the State of
Delaware. Each General Partner is a US citizen.
<PAGE> 10 of 42
Item 3. Source and Amount of Funds or Other Consideration.
On August 19, 1994, Edison II and Edison Venture Fund
II-Pa, L.P. ("Edison II-Pa"), a Pennsylvania limited
partnership of which Edison Partners II is the sole general
partner, acquired directly from the Issuer in a private
placement an aggregate of 2,500,000 shares of the Company's
Series C Convertible Preferred Stock, par value $.001 per share
("Preferred Stock"), a Series 1 Warrant (the "Series 1 Warrant"),
and a Series 2 Warrant to purchase 500,000 shares of Common
Stock for $1.00 per share (the "Series 2 Warrant", and collectively
with the Series 1 Warrant, the "Warrants"), at an aggregate
purchase price of $2,500,000.00 as reported in the Schedule 13D
dated August 26, 1994, filed by the parties hereto and Edison II-Pa.
Edison II acquired 2,096,774 shares of the Preferred Stock and
Warrants to purchase an aggregate of 838,710 shares of Common Stock.
Edison II-Pa acquired 403,226 shares of the Preferred Stock and
Warrants to purchase an aggregate of 161,290 shares of Common Stock.
On November 14, 1994, Edison II-Pa sold 403,226 shres of the
Preferred Stock, a Series 1 Warrant to purchase 80,645 shares of
Common Stock, and a Series 2 Warrant to purchase 80,645 shares of
Common Stock to A. J. Clegg, Chairman of the Issuer, at an
aggregate price of $403,226.00 as reported in Amendment No. 1 to
Schedule 13D dated November 14, 1994, filed by the parties hereto
and Edison II-Pa.
The Preferred Stock is convertible into Common Stock in
accordance with the terms of the Preferred Stock as set forth in the
Issuer's Amended Certificate of Incorporation. The Warrants can not be
exercised until certain conditions are met. The Series 1 Warrant to
purchase 419,355 shares of Common Stock became exercisable on
August 24, 1995.
Item 4. Purpose of Transaction.
Edison II acquired the Preferred Stock and Warrants
for investment purposes in the ordinary course of business
and not with any purpose of changing control of the Issuer.
Edison II currently intends to hold such securities for
investment, but may, at some future time depending on market
conditions and other factors, acquire additional securities
(though one or more market purchases or purchases in private
transactions) or dispose of all or a portion of the
securities which it now owns or hereafter may acquire
(through one or more market or private transactions or
distributions to partners in accordance with their
partnership agreements). Except as set forth above, Edison
II does not have any present plans or proposals which relate
to or would result in any of the actions describe in
paragraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of Issuer.
(a) Edison II owns beneficially and of record
securities currently convertible into or exercisable for
2,516,129 shares of Common Stock. Edison Partners II, the
sole general partner of Edison II, and the General Partners,
the general partners of Edison Partners II, may be deemed to
beneficially own the securities held by Edison II.
<PAGE> 11 of 42
Percent of Class: Edison II owns beneficially 15.7% of
the Common Stock of the Issuer. Edison Partners II and each
of the General Partners may be deemed to beneficially own
15.7% of the Common Stock of the Issuer.
The percentages are based on the 15,645,063 shares of
Common Stock reported to be outstanding on the Issuer's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1995, including as outstanding for the purpose of such
calculation the shares of Common Stock Edison II may have
any right to acquire within 60 days.
None of the General Partners, Edison II or Edison
Partners II beneficially owns any other shares of Common
Stock. Each of the General Partners hereby disclaims any
beneficial ownership in any securities except to the extent
of his pecuniary interest therein.
(b) Number of shares as to which such person has:
(i) sole power to vote or to direct the vote:
Edison II, 0; Edison Partners II, 0;
Martinson, 0; Defieux, 0; Chilek, 0; Smith, 0;
and Koven, 0.
(ii) shared power to vote or to direct the vote:
Edison II, 2,516,129; Edison Partners, II,
2,516,129; Martinson, 2,516,129; Defieux, 2,516,129;
Chilek, 2,516,129; Smith, 2,516,129;
and Koven, 2,516,129.
(iii) sole power to dispose or to direct the
disposition of:
Edison II, 0; Edison Partners II, 0;
Martinson, 0; Defieux, 0; Chilek, 0; Smith, 0;
and Koven, 0.
(iv) shared power to dispose or to direct the
disposition of:
Edison II, 2,516,129; Edison Partners, II, 2,516,129;
Martinson, 2,516,129; Defieux, 2,516,129;
Chilek, 2,516,129; Smith, 2,516,129;
and Koven, 2,516,129.
(c) None of the General Partners, Edison II or Edison
Partners II have effected any transactions in the Common
Stock during the past sixty (60) days except for the
transactions as reported herein.
(d) No other interested persons.
(e) Not applicable.
<PAGE> 12 of 42
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
John Martinson is a member of the Board of Directors of
the Issuer.
(a) Joint Filing Agreement Pursuant to Rule 3d-1(f)(iii).
(b) Registration Rights Agreement dated August 19,
1994, among the Issuer and each of the several Purchasers
named in Schedule I to the Series C Convertible Preferred
Stock Purchase Agreement dated as of August 19, 1994.*
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Joint Filing Agreement Pursuant to Rule 3d-1(f)(iii).
Exhibit 2 - Registration Rights Agreement dated August
19, 1994, among the Issuer and each of the several
Purchasers named in Schedule I to the Series C Convertible
Preferred Stock Purchase Agreement dated as of August 19,
1994.*
Exhibit 3 - Series 1 Common Stock Purchase Warrant
dated August 19, 1994.
Exhibit 4 - Series 2 Common Stock Purchase Warrant
dated August 19, 1994.
* Originally filed as a paper exhibit to the Schedule 13D dated
August 26, 1994, as amended by Amendment No. 1 to Schedule
13D dated November 14, 1994, by the parties hereto and Edison II-Pa,
which, along with the amendment, is incorporated herein by
reference and need not be refiled pursuant to Item 101(a)(2)(ii)
of Regulation S-T.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>13 of 42
SIGNATURE
After reasonable inquiry and as to the best of our
knowledge and belief, we certify that the information set
forth in this statement is true, complete and correct.
Dated: August 29, 1995 EDISON VENTURE FUND II, L.P.
By: Edison Partners II, L.P.,
General Partner
By: /s/ John H. Martinson
General Partner
EDISON PARTNERS II, L.P.
By: /s/ John H. Martinson
General Partner
/s/ John H. Martinson
John H. Martinson
/s/ Richard J. Defieux
Richard J. Defieux
/s/ Gustav H. Koven, III
Gustav H. Koven, III
/s/ Martin G. Chilek
Martin G. Chilek
/s/ Thomas A. Smith
Thomas A. Smith
<PAGE> 14 of 42
EXHIBIT 1
Agreement
Pursuant to Rule 13d-1(f)(1) under the Securities
Exchange Act of 1934, the undersigned hereby agree that only
one statement containing the information required on
Schedule 13D, as amended, need be filed with respect to
ownership by each of the undersigned of capital stock of
Nobel Education Dynamics, Inc.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
Dated: August 29, 1995 EDISON VENTURE FUND II, L.P.
By: Edison Partners II, L.P.,
General Partner
By: /s/ John H. Martinson
General Partner
EDISON PARTNERS II, L.P.
By: /s/ John H. Martinson
General Partner
/s/ John H. Martinson
John H. Martinson
/s/ Richard J. Defieux
Richard J. Defieux
/s/ Gustav H. Koven, III
Gustav H. Koven, III
/s/ Martin G. Chilek
Martin G. Chilek
/s/ Thomas A. Smith
Thomas A. Smith
<PAGE> 15 of 42
EXHIBIT 3
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
IT HAS BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
NOBEL EDUCATION DYNAMICS, INC.
Series 1 Common Stock Purchase Warrant
Warrant No. Wl-1 August 19, 1994
NOBEL EDUCATION DYNAMICS, INC., a Delaware corporation (the
"Company"), hereby certifies that, for value received, Edison
Venture Fund II, L.P. (the "Holder"), or its successors or
registered assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to
time on or after August 19, 1994 and before 5:00 p.m., New York
City time, on the Expiration Date (as hereinafter defined) up to
an aggregate of 419,355 (Four Hundred and Nineteen Thousand Three
Hundred and Fifty-Five) fully paid and nonassessable shares of
the Company's common stock, $.001 par value per share (the
"Common Stock") at a price per share equal to the Exercise Price
(as hereinafter defined) in effect at the time of the exercise of
this Warrant. The number of shares of Common Stock issuable upon
the exercise of this Warrant and the Exercise Price are subject
to adjustment as provided in this Warrant.
This Warrant is one of a series of series 1 warrants
(collectively, the "Warrants"), issued pursuant to a certain
Series C Convertible Preferred Stock And Common Stock Warrant
Purchase Agreement (the "Agreement") dated as of August 19, 1994,
as amended, by and among the Company and the persons named
therein (the "Purchasers"), a copy of which is on file at the
principal office of the Company. The holder of this Warrant
shall be entitled to the benefits of the Agreement, as provided
therein.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
(a) The term "Company" shall include Nobel Education
Dynamics, Inc. and any corporation that shall succeed to or
assume the obligations of Nobel Education Dynamics, Inc.
hereunder.
(b) The term "Exercise Price" shall mean, subject to
adjustment pursuant to Section 5 hereof, $1.00 per share of
Common Stock.
<PAGE> 16 of 42
(c) The term "Expiration Date" refers to 5:00 p.m., New
York City time, on August 19, 2001.
1. Exercise and Conversion of Warrant.
1.1 Exercise. Subject to Section 1.3 hereof, this
Warrant may be exercised in full or in part at any time or from
time to time until the Expiration Date by the holder hereof
either (a) by surrender of this Warrant and the subscription form
annexed hereto (duly executed) by such holder, to the Company at
its principal office, accompanied by payment, in cash, by the
surrender of any promissory note or notes or other instruments
evidencing any indebtedness outstanding from the Company to the
holder hereof or by certified or official bank check payable to
the order of the Company in the amount obtained by multiplying
(x) the number of shares of Common Stock designated by the holder
in the subscription form by (y) the Exercise Price then in
effect, or (b) if in connection with a registered public offering
of the Company's securities, the surrender of this Warrant (with
the subscription form annexed hereto duly executed) at the
principal office of the Company together with notice of
arrangements reasonably satisfactory to the Company for payment
to the Company either by check or from the proceeds of the sale
of shares to be sold by the holder in such public offering of an
amount equal to the then applicable Exercise Price per share
multiplied by the number of shares of Common Stock then being
purchased on any partial exercise the Company at its expense will
forthwith issue and deliver to or upon the order of the holder
hereof a new Warrant or Warrants of like tenor, in the name of
the holder hereof or as such holder (upon payment by such holder
of any applicable transfer taxes) may request, providing in the
aggregate on the face or faces thereof for the number of shares
of Common Stock for which such Warrant or Warrants may still be
exercised.
1.2 Conversion.
(a) The holder of this Warrant shall have the
right to require the Company to convert this Warrant (the
"Conversion Right," in whole or in part, at any time prior to the
Expiration Date, into shares of Common Stock as provided for in
this Section 1.2. Upon exercise of the Conversion Right, the
Company shall deliver to the holder (without payment by the
holder of any Exercise Price) such number of fully paid and
nonassessable shares of Common Stock as is computed using the
following formula:
X = Y (A-B)
A
where X = the number of shares of Common Stock to be issued to
the holder hereof pursuant to this Section 1.2.
Y = the number of shares of Common Stock then issuable
upon the exercise of this Warrant that the holder
hereof is surrendering in connection with the exercise
of the Conversion Right.
<PAGE> 17 of 42
A = the Fair Market Value of one share of Common
Stock, at the time the Conversion Right is exercised
pursuant to this Section 1.2
B = the Exercise Price in effect under this Warrant at
the time the Conversion Right is exercised pursuant to
this Section 1.2.
(b) The Conversion Right may be exercised by the
holder, at any time, or from time to time, prior to the
Expiration Date, on any business day by delivering a written
notice (the "Conversion Notice") to the Company exercising the
Conversion Right and specifying (i) the total number of shares of
Common Stock the holder wishes to acquire pursuant to such
conversion and (ii) a place and a date not less than one nor more
than 20 business days from the date of the Conversion Notice for
the closing of such purchase.
(c) Upon any exercise of the Conversion Right
under Section 1.2(b) hereof, (i) the holder will surrender the
Warrant and (ii) the Company will deliver to the holder a
certificate or certificates for the number of shares of Common
Stock issuable upon such conversion, together with cash, in lieu
of any fraction of a share, as provided in Section 2 below. Upon
any partial exercise of such Conversion Right, the Company at its
expense will forthwith issue and deliver to or upon the order of
the holder hereof a new Warrant or Warrants of like tenor, in the
name of the holder hereof or as such holder (upon payment by such
holder of any applicable transfer taxes) may request, providing
in the aggregate on the face or faces thereof for the number of
shares of Common Stock for which such Warrant or Warrants may
still be exercised or converted after giving effect to the
exercise of the Conversion Right.
(d) Fair Market Value of a share of Common Stock
as of a particular date (the "Determination Date") shall mean:
(i) If the Company's Common Stock is traded
on an exchange or is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation ("NASDAQ")
National Market System, then the last sale price reported
for the last business day immediately preceding the
Determination Date.
(ii) If the Company's Common Stock is not
traded on an exchange or on the NASDAQ National Market
System but is traded in the over-the-counter market, then
the mean of the closing bid and asked prices reported for
the last business day immediately preceding the
Determination Date.
(iii) Except as provided in subsections
1.2(d)(iv) below, if the Company's Common Stock is not
publicly traded, then as determined in good faith by mutual
agreement of the Company's Board of Directors and the
holders of at least 66-2/3% in interest of the then
outstanding Warrants.
(iv) If the Determination Date is the date
of a liquidation, dissolution or winding up of the Company,
or any event deemed to be a liquidation, dissolution or
winding up pursuant to the Company's Certificate of
Incorporation, as
<PAGE> 18 of 42
amended (the "Charter"), then the amount specified in the
Charter upon a liquidation, dissolution or winding up, assuming for
purposes of this subsection 1.2 that all of the shares of
Common Stock issuable upon exercise of all of the Warrants are
outstanding at the Determination Date.
1.3 Limitations on Exercise and Conversion.
Notwithstanding anything contained herein to the contrary, this
Warrant may not be exercised or converted pursuant to subsections
1.1 and 1.2 hereof, in whole, or in part, prior to the
Commencement Date (as defined). The "Commencement Date" shall be
the first date on or after February 19, 1995 on which the average
Fair Market Value per share of Common Stock, determined in
accordance with subsections 1.2(d)(i) or 1.2(d)(ii) above, for
each business day in the 180 day period ending on the day prior
to the Commencement Date, equals or exceeds $1.75 per share (such
per share amount to be appropriately adjusted in the event of any
stock split, stock dividend, or other similar event affecting the
number of outstanding shares of Common Stock). The average Fair
Market Value per share of Common Stock for such business days
shall be determined by adding the Fair Market Value for each such
business day and dividing the sum by the number of business days
in such 180 day period.
1.4 Trustee for Warrant Holders. In the event that a
bank or trust company shall have been appointed as trustee for
the holder of the Warrant pursuant to subsection 4.2 hereof, such
bank or trust company shall have all the powers and duties of a
warrant agent appointed pursuant to Section 15 and shall accept,
in its own name for the account of the Company or such successor
person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise
or conversion of this Warrant pursuant to this Section 1. The
Company shall give the holder of the Warrant notice of the
appointment of any trustee and any change thereof.
2. Delivery of Stock Certificate. As soon as practicable
after the exercise or conversion of this Warrant, and in any
event within 30 days thereafter, the Company at its expense
(including the payment by it of any applicable issue or stamp
taxes) will cause to be issued in the name of and delivered to
the holder hereof, or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable
shares of Common Stock to which such holder shall be entitled on
such exercise or conversion, in such denominations as may be
requested by such holder, plus, in lieu of any fractional share
to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current market value (as
determined in good faith by the Board of Directors) of one full
share, together with any other stock or other securities and
property (including cash, where applicable) to which such holder
is entitled upon such exercise or conversion pursuant to Section
1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property,
etc.; Reclassification, etc. In case at any time or from time to
time, the holders of Common Stock shall have received, or (on or
after the record date fixed for the determination of shareholders
eligible to receive) shall have become entitled to receive,
without payment therefor,
<PAGE> 19 of 42
(a) other or additional stock or other securities or
property (other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely
out of earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or
property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of shares or
similar corporate rearrangement,
other than additional shares of Common stock issued as a stock
dividend or in a stock-split (adjustments in respect of which are
provided for in Section 5), then and in each such case the holder
of this Warrant, on the exercise or conversion hereof as provided
in Section 1, shall be entitled to receive the amount of stock
and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section 3) which
such holder would hold on the date of such exercise or conversion
if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date
hereof to and including the date of such exercise or conversion
retained such shares and all such other or additional stock and
other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section 3)
receivable by him as aforesaid during such period, giving effect
to all adjustments called for during such period by Section 4.
4. Adjustment for Reorganization, Consolidation, Merger,
etc.
4.1 Reorganization Merger; Sale of Assets. In case at
any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other
person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or
arrangement contemplating the dissolution of the Company, then,
in each such case, the holder of this Warrant, on the exercise or
conversion hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or
the effective date of such dissolution, as the case may be, shall
receive, in lieu of the Common Stock issuable on such exercise or
conversion prior to such consummation or such effective date, the
stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such
holder had so exercised or converted this Warrant, immediately
prior thereto, all subject to further adjustment thereafter as
provided in Sections 3 and 5.
4.2 Dissolution. In the event of any dissolution of
the Company following the transfer of all or substantially all of
its properties or assets, the Company, prior to such dissolution,
shall at its expense deliver or cause to be delivered the stock
and other securities and property (including cash, where
applicable) receivable by the holder of this Warrant after the
effective date of such dissolution pursuant to this Section 4 to
the holder or a bank or trust company having its principal office
in New Jersey as trustee for the holder or holders of the
Warrants.
<PAGE> 20 of 42
4.3 Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer followed by dissolution
referred to in this Section 4 (where, in the case of a transfer
followed by a dissolution, the transferee is paying for the
Company's assets all or in part with its equity securities), this
Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise or conversion
of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution
following any such transfer, as the case may be. The Company
shall be obligated, prior to and as a condition of such
transaction, to enter into an agreement for the benefit of the
Warrant holders that is binding upon the issuer of any such stock
or other securities, including, in the case of any such transfer,
the person acquiring all or substantially all of the properties
or assets of the Company, pursuant to which such person shall
expressly assume the terms of this which Warrant as provided in
Section 6.
5. Other Adjustments.
5.1 Adjustment for the Extraordinary Events. In the
event that the Company shall (i) issue additional shares of the
Common Stock as a dividend or other distribution on outstanding
Common Stock, (ii) subdivide or reclassify outstanding shares of
Common Stock, or (iii) combine outstanding shares of Common Stock
into a smaller number of shares of Common Stock, then, in each such
event, the Exercise Price shall, simultaneously with the
happening of such event, be adjusted by multiplying the then
Exercise Price by a fractions the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such event and the denominator of which shall be the number of
shares of Common stock outstanding immediately after such event,
and the product so obtained shall thereafter be the Exercise
Price then in effect. The Exercise Price, as so adjusted, shall
be readjusted in the in effect. The Exercise Price, as so
adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in
this Section 5. The Holder of this Warrant shall thereafter, on
the exercise hereof as provided in Section 1, be entitled to
receive that number of shares of Common Stock determined by
multiplying the number of shares of Common Stock determined by
multiplying the number of shares of Common Stock issuable upon
the exercise of this Warrant immediately prior to such issuance
by a fraction of which (i) the numerator is the Exercise Price in
effect immediately prior to the issuance resulting in an
adjustment to the Exercise Price and (ii) the denominator is the
Exercise Price in effect giving effect to any adjustment
resulting from such issuance.
5.2 Adjustments for Issuances Below Exercise Price.
If the Company shall at any time or from time to time after
August 19, 1994 issue or sell any shares of Common Stock (other
than (i) shares issued in transactions to which Section 5.1 of
this Warrant applies, (ii) up to 792,45 shares of Common Stock
(appropriately adjusted for subdivisions, combinations, stock
dividends and the like) issued as compensation or pursuant to the
exercise of options granted as compensation to employees,
officers, directors or consultants of the Company in connection
with their service to the Company, (iii) shares of Common Stock
issuable upon conversion of the Series A Convertible Preferred
stock or Series C Convertible Preferred Stock, and (iv) shares of
Common Stock issuable pursuant to subscriptions, warrants,
options, convertible securities, or
<PAGE> 21 of 42
other rights outstanding as of August 19, 1994 and not included in
clauses (i), (ii) or (iii) above for a consideration per share less
than the Exercise Price in effect for this Warrant immediately prior
to the time of such issue or sale, then forthwith upon such issue or
sale the Exercise Price shall (until another such issue or sale) be
reduced to a price (calculated to the nearest cent) determined by
dividing (i) an amount equal to the sum of (X) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale, multiplied by the Exercise Price in effect
immediately prior to such event plus (y) the consideration, if
any, received by the Company upon such issue or sale, by (ii) the
total number of shares of Common Stock outstanding immediately
after such issue or sale or dividend or other distribution.
Further, the number of shares purchasable hereunder shall be
increased to a number determined by dividing (i) the number of
shares purchasable hereunder immediately prior to such issue or
sale, multiplied by the Exercise Price hereunder immediately
prior to such event, by (ii) the Exercise Price in effect
immediately after the foregoing adjustment.
For the purpose of this Section 5.2, the following
provisions shall also be applicable:
A. In case the Company shall in any manner offer any
rights to subscribe for or to purchase shares of Common
Stock, or grant any options for the purchase of shares of
Common Stock, at a price less than the Exercise Price in
effect immediately prior to the time of the offering of such
rights or the granting of such options, as the case may be,
all shares of Common Stock which the holders of such rights
or options shall be entitled to subscribe for or purchase
pursuant to such rights or options shall be deemed to be
issued or sold as of the date of the offering of such rights
or the granting of such options, as the case may be, and the
minimum aggregate consideration named in such rights or
options for the Common Stock covered thereby, plus the
consideration received by the Company for such rights or
options, shall be deemed to be the consideration actually
received by the Company (as of the date of the offering of
such rights or the granting of such options, as the case may
be) for the issue or sale of such shares.
B. In case the Company shall in any manner issue or
sell any shares of any class or obligations directly or
indirectly convertible into or exchangeable for shares of
Common Stock and the price per share for which Common Stock
is deliverable upon such conversion or exchange (determined
by dividing (i) the total minimum amount received or
receivable by the company in consideration of the issue or
sale of such convertible or exchangeable shares or
obligations, plus the total minimum amount of premiums, if
any, payable to the Company upon conversion or exchange, by
(ii) the total number of shares of Common Stock necessary to
effect the conversion or exchange of all such convertible or
exchangeable shares or obligations) shall be less than the
Exercise Price in effect immediately prior to the time of
such issue or sale, then such issue or sale shall be deemed
to be an issue or sale (as of the date of issue or sale of
such convertible or exchangeable shares or obligations) of
the total maximum number of shares of Common Stock necessary
to effect the conversion or exchange of all such convertible
or exchangeable shares or obligations, and the total minimum
amount received or receivable by the Company in
consideration of the issue or sale of such convertible or
exchangeable shares or obligations, plus the total minimum
amount of premiums, if any, payable to the Company upon
<PAGE> 22 of 42
exchange or conversion, shall be deemed to be the
consideration actually received (as of the date of the issue
or sale of such convertible or exchangeable shares or
obligations) for the issue or sale of such Common Stock.
C. In determining the amount of consideration
received by the Company for Common Stock, securities
convertible thereinto or exchangeable therefor, or rights or
options for the purchase thereof, no deduction shall be made
for expenses or underwriting discounts or commissions paid
by the Company. The Board shall determine in good faith the
fair value of the amount of consideration other than money
received by the Company upon the issue by it of any of its
securities. The Board shall also determine in good faith
the fair value of any dividend or other distribution made
upon Common Stock payable in property, securities of the
Company other than Common Stock or securities of a
corporation other than the Company. The Board shall, in
case any Common Stock, securities convertible thereinto or
exchangeable therefor, or rights or options for the purchase
thereof are issued with other stock, securities or assets of
the Company, determine in good faith what part of the
consideration received therefor is applicable to the issue
of the Common Stock, securities convertible thereinto or
exchangeable therefor, or rights or options for the purchase
thereof.
D. If there shall be any change in (i) the minimum
aggregate consideration named in the rights or options
referred to in Subsection A above, (ii) the consideration
received by the Company for such rights or options, (iii)
the price per share for which Common Stock is deliverable
upon the conversion or exchange of the convertible or
exchangeable shares or obligations referred to in Subsection
B above, (iv) the number of shares which may be subscribed
for or purchased pursuant to the rights or options referred
to in Subsection A above, or (v) the rate at which the
convertible or exchangeable shares or obligations referred
to in Subsection B above are convertible into or
exchangeable for Common Stock, then the Exercise Price in
effect at the time of such event shall be readjusted to the
Exercise Price which would have been in effect at such time
had such rights, options, or convertible or exchangeable
shares or obligations still outstanding provided for such
changed consideration, price per share, number of shares, or
rate of conversion or exchange, as the case may be, at the
time initially offered, granted, issued or sold, but only if
as a result of such adjustment the Exercise Price then in
effect hereunder is thereby reduced.
6. No Impairment. The Company will not, by amendment of
its charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, or any other similar
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of the
Warrant against impairment due to such event. Without limiting
the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the
exercise or conversion of the Warrant above the amount payable
therefor on such exercise or conversion, (b) will take all action
that may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable shares
of stock, free from all
<PAGE> 23 of 42
taxes, liens and charges with respect to the issue thereof, on the
exercise or conversion of all or any portion of this Warrant from
time to time outstanding, and (c) will not consolidate with or merge
into any other person or permit any such person to consolidate with
or merge into the Company (if the Company is not the surviving person)
or transfer all or substantially all the assets of the Company to another
person, unless such other person shall expressly assume in
writing and will be bound by all the terms of this Warrant,
including the provisions of Section 4.
7. Accountants' Certificate as to Adjustments. In each
case of any adjustment or readjustment in the number or type of
shares or securities issuable on the exercise or conversion of
this Warrant, the Company at its expense will promptly cause
independent certified public accountants of recognized national
standing selected by the Board of the Company to compute such
adjustment or readjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth such adjustment
or readjustment, the Exercise Price resulting therefrom and the
increase or decrease, if any, or the number of shares purchasable
at such price upon exercise or conversion of the Warrant, and
showing in detail the facts and computation upon which such
adjustment or readjustment is based. The Company will forthwith
mail a copy of each such certificate to each registered holder of
this Warrant, and will, on the written request at any time of the
holder of this Warrant, furnish to such holder a like certificate
setting forth the Exercise Price at the time in effect and
showing how such Exercise Price was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the
holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive
any dividend on, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of
the Company or any transfer of all or substantially all the
assets of the Company to or consolidation or merger of the
Company with or into any other person, or
(c) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then and in each such event the Company will mail or cause to be
mailed to the registered holder of this Warrant a notice
specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution
or right, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of
record of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable on
such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or
other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue
or grant and the persons or class of persons to whom
<PAGE> 24 of 42
such proposed issue or grant is to be offered or made. Such notice
shall also state that the action in question or the record date
is subject to the effectiveness of a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), or
a favorable vote of stockholders if either is required. Such
notice shall be mailed at least 20 days prior to the date
specified in such notice on which any such action is to be taken
or the record date, whichever is earlier.
9. Reservation of Stock, etc., Issuable on Exercise of
Warrants. The Company will at all times reserve and keep
available, solely for issuance and delivery on the exercise or
conversion of the Warrant, all shares of Common Stock from time
to time issuable on the exercise or conversion of this Warrant.
10. Registration. If the issuance of any shares of Common
Stock required to be reserved for purposes of exercise or
conversion of this Warrant or for the conversion of such shares
requires registration with, or approval of, any Federal
governmental authority under any Federal or state law (other than
any registration under the Securities Act) or listing on any
national securities exchange, before such shares may be issued
upon exercise or conversion of this Warrant or such conversion,
the Company will, at its expense, use its best efforts to cause
such shares to be duly registered or approved, or listed on the
relevant national securities exchange, as the case may be, at
such time, so that such shares may be issued in accordance with
the terms hereof and so converted.
11. Transfer of Warrant. The transfer of this Warrant and
all rights hereunder, in whole or in part, is registrable at the
office or agency of the Company referred to below by the holder
hereof in person or by his duly authorized attorney, upon
surrender of this Warrant properly endorsed. Each taker and
holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be
deemed negotiable, and that the holder hereof, when this Warrant
shall have been so endorsed, may be treated by the Company and
all other persons dealing with this Warrant as the absolute owner
and holder hereof for any purpose and as the person entitled to
exercise the rights represented by this Warrant, or to the
registration of transfer hereof on the books of the Company; and
until due presentment for registration of transfer on such books
the Company may treat the registered holder hereof as the owner
and holder for all purposes, and the Company shall not be
affected by notice to the contrary.
12. Register of Warrants. The Company shall maintain, at
the principal office of the Company (or such other office as it
may designate by notice to the holder hereof), a register in
which the Company shall record the name and address of the person
in whose name this Warrant has been issued, as well as the name
and address of each transferee and each prior owner of such
Warrant.
13. Exchange of Warrant. This Warrant is exchangeable,
upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 12, for one or more
new Warrants of like tenor representing in the aggregate the
right to subscribe for and purchase the number of shares of
Common Stock which may be subscribed for and purchased
<PAGE> 25 of 42
hereunder, each of such new Warrants to represent the right to
subscribe for and purchase such number of shares as shall be
designated by said holder hereof at the time of such surrender.
14. Replacement of Warrant. On receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any
such loss, theft or destruction of this Warrant, on delivery of
an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver, in lieu thereof,
a new Warrant of like tenor; provided, however, if this Warrant
of which the original holder of this Warrant its nominee, or any
of its officers or directors is the registered holder is lost,
stolen or destroyed, the affidavit of the President, Vice
President, Treasurer, or any General Partner of the registered
holder setting forth the circumstances with respect to such loss,
theft or destruction shall be accepted as satisfactory evidence
thereof, and no indemnity bond or other security shall be
required as a condition to the execution and delivery by the
Company of a new Warrant in replacement of such lost, stolen or
destroyed Warrant other than the registered holder's written
agreement to indemnify the Company.
15. Warrant Agent. The Company may, by written notice to
the registered holder of this Warrant, appoint an agent for the
purpose of issuing Common Stock on the exercise or conversion of
the Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 13, and replacing this Warrant pursuant to
Section 14, or any of the foregoing, and thereafter any such
issuance, exchange or replacement, as the case may be, shall be
made at such office by such agent.
16. Remedies. The Company stipulates that the remedies at
law of the holder of this Warrant in the event of any default or
threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will
not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any
of the terms hereof or otherwise.
17. Closing of Books. The Company will at no time close
its transfer books against the transfer of any Warrant or of any
shares of Common Stock issued or issuable upon the exercise or
conversion of any Warrant in any manner which interferes with the
timely exercise or conversion of this Warrant.
18. No Rights or Liabilities as a Stockholder. This Warrant
shall not entitle the holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the holder
hereof to purchase Common Stock, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise
to any liability of such holder for the Exercise Price or as a
stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
19. Notices, etc. All notices and other communications
from the Company to the registered holder of this Warrant shall
be mailed by first class registered or certified mail, postage
prepaid, at such address as shall have been furnished to the
Company in writing by such holder.
<PAGE> 26 of 42
20. Investment Representations. The holder hereof (and
each subsequent holder) represents to the Company that this
Warrant is being acquired for the holder's own account and for
the purpose of investment and not with a view to, or for sale in
connection with, the distribution thereof, nor with any present
intention of distributing or selling the Warrant or the
Common Stock issuable upon exercise or conversion of the Warrant.
The holder hereof acknowledges and agrees that the Warrant and
the Common Stock issuable upon exercise or conversion of the
Warrant (if any) have not been (and at the time of acquisition by
such holder, will not have been or will not be) registered under
the Securities Act or under the securities laws of any state, in
reliance upon certain exemptive provisions of such statutes. The
holder hereof recognizes and acknowledges that such claims of
exemption are based, in part, upon the representations of the
holder contained herein and in the Agreement. The holder hereof
further recognizes and acknowledges that because the Warrant and
the Common Stock issuable upon exercise or conversion of the
Warrant (if any) are unregistered, they are not presently
eligible for resale, and may only be resold in the future
pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws, or
pursuant to a valid exemption from such registration
requirements. Each subsequent holder hereof shall be required to
make all of the representations which are required by this
Section 20 to be made by the initial holder hereof, including
without limitation the representations which are contained in the
Agreement.
21. Binding Effect on Successors. This Warrant shall be
binding upon any corporation succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the
Company's assets (to the extent provided in Section 4), and all
of the obligations of the Company relating to the Common Stock
issuable upon the exercise or conversion of this Warrant shall
survive the exercise, conversion, and termination of this Warrant
and all of the covenants and agreements of the Company shall
inure to the benefit of the successors and assigns of the holder
hereof. The Company will, at the time of the exercise or
conversion of this Warrant, in whole or in part, upon request of
the holder hereof but at the Company's expense, acknowledge in
writing its continuing obligation to the holder hereof in respect
of any rights (including, without limitation, any right to
registration of the shares of Registrable Securities) to which
the holder hereof shall continue to be entitled after such
exercise or conversion in accordance with this Warrant; provided,
that the failure of the holder hereof to make any such request
shall not affect the continuing obligation of the Company to the
holder hereof in respect of such rights.
22. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought, subject to
the provisions of Section 6.09 of the Agreement. This Warrant
shall be construed and enforced in accordance with and governed
by the internal laws of the State of Delaware. The headings in
this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant
is being executed as an instrument under seal. The invalidity or
unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
<PAGE> 27 of 42
IN WITNESS WHEREOF the Company has executed this Warrant on the
date set forth below.
Dated: August 19, 1994 NOBEL EDUCATION DYNAMICS, INC.
By:
TITLE: Chairman/CEO
[Corporate Seal]
Attest:
_________________________
Asst. Secretary
<PAGE> 28 of 42
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: NOBEL EDUCATION DYNAMICS, INC.
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase
thereunder, _________________ shares of _____________________ of
NOBEL EDUCATION DYNAMICS, INC. and herewith makes payment of
$________________ therefor in cash, and requests that the
certificates for such shares be issued in the name of and
delivered to _____________________, whose address is
____________________________________.
Dated: __________________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
__________________________________
__________________________________
(Address)
____________
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and
transfers unto __________________ the right represented by the
within Warrant to purchase ______________ shares of
__________________ of NOBEL EDUCATION DYNAMICS, INC. to which the
within Warrant relates, and appoints _______________________
Attorney to transfer such right on the books of NOBEL EDUCATION
DYNAMICS, INC. with full power of substitution in the
premises.
Dated: __________________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
__________________________________
__________________________________
Signed in the presence of:
___________________________
<PAGE> 29 of 42
EXHIBIT 4
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
IT HAS BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.
NOBEL EDUCATION DYNAMICS, INC.
Series 2 Common Stock Purchase Warrant
Warrant No. W1-1 August 19, 1994
NOBEL EDUCATION DYNAMICS, INC., a Delaware corporation (the
"Company"), hereby certifies that, for value received, Edison
Venture Fund II, L.P. (the "Holder"), or its successors or
registered assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to
time on or after August 19, 1994 (subject to the provisions of
Section 1.3 below) and before the Expiration Date (as hereinafter
defined) up to an aggregate of 419,355 (Four Hundred and Nineteen
Thousand Three Hundred and Fifty-Five) fully paid and
nonassessable shares of the Company's common stock, $.001 par
value per share (the "Common Stock") at a price per share equal
to the Exercise Price (as hereinafter defined) in effect at the
time of the exercise of this Warrant. The number of shares of
Common Stock issuable upon the exercise of this Warrant and the
Exercise Price are subject to adjustment as provided in this
Warrant.
This Warrant is one of a series of series 2 warrants
(collectively, the "Warrants"), issued pursuant to a certain
Series C Convertible Preferred Stock And Common Stock Warrant
Purchase Agreement (the "Agreement") dated as of August 19, 1994,
as amended, by and among the Company and the persons named
therein (the "Purchasers"), a copy of which is on file at the
principal office of the Company. The holder of this Warrant
shall be entitled to the benefits of the Agreement, as provided
therein.
As used herein the following terms, "unless the context
otherwise requires, have the following respective meanings:
(a) The term "Company" shall include Nobel Education
Dynamics, Inc. and any corporation that shall succeed to or
assume the obligations of Nobel Education Dynamics, Inc.
hereunder.
(b) The term "Exercise Price" shall mean, subject to
adjustment pursuant to Section 5 hereof, $1.00 per share of
Common Stock.
(c) The term "Expiration Date" refers to 5:00 p.m., New
York City time, on August 19, 2001; provided, however, that if
the Fair Market Value per share of Common Stock,
<PAGE> 30 of 42
determined in accordance with subsections 1.2(d)(i) or 1.2(d)(ii)
below, for each business day in any period of 20 consecutive business
days ending on or before December 31, 1996, equals or exceeds $3.00
(such amount to be appropriately adjusted in the event of any
stock split, stock dividend or the like affecting the number of
outstanding shares of Common Stock), then the Expiration Date
shall be 5:00 p.m., New York City time, on such 20th business
day, and this Warrant shall not become exercisable pursuant to
Section 1.3 below.
1. Exercise and Conversion of Warrant.
1.1 Exercise. Subject to Section 1.3 hereof, this
Warrant may be exercised in full or in part at any time or from
time to time until the Expiration Date by the holder hereof
either (a) by surrender of this Warrant and the subscription form
annexed hereto (duly executed) by such holder, to the Company at
its principal office, accompanied by payment, in cash, by the
surrender of any promissory note or notes or other instruments
evidencing any indebtedness outstanding from the Company to the
holder hereof or by certified or official bank check payable to
the order of the Company in the amount obtained by multiplying
(x) the number of shares of Common Stock designated by the holder
in the subscription form by (y) the Exercise Price then in
effect, or (b) if in connection with a registered public offering
of the Company's securities, the surrender of this Warrant (with
the subscription form annexed hereto duly executed) at the
principal office of the Company together with notice of
arrangements reasonably satisfactory to the Company for payment
to the Company either by check or from the proceeds of the sale
of shares to be sold by the holder in such public offering of an
amount equal to the then applicable Exercise Price per share
multiplied by the number of shares of Common Stock then being
purchased. On any partial exercise the Company at its expense
will forthwith issue and deliver to or upon the order of the
holder hereof a new Warrant or Warrants of like tenor, in the
name of the holder hereof or as such holder (upon payment by such
holder of any applicable transfer taxes) may request, providing
in the aggregate on the face or faces thereof for the number of
shares of Common Stock for which such Warrant or Warrants may
still be exercised.
1.2 Conversion.
(a) The holder of this Warrant shall have the right to
require the Company to convert this Warrant (the "Conversion
Right"), in whole or in part, at any time prior to the Expiration
Date, into shares of Common Stock as provided for in this Section
1.2. Upon exercise of the Conversion Right, the Company shall
deliver to the holder (without payment by the holder of any
Exercise Price) such number of fully paid and nonassessable
shares of Common Stock as is computed using the following
formula:
X = Y (A-B)
A
where X = the number of shares of Common Stock to be issued to
the holder hereof pursuant to this Section 1.2.
<PAGE> 31 of 42
Y = the number of shares of Common Stock then issuable
upon the exercise of this Warrant that the holder
hereof is surrendering in connection with the exercise
of the Conversion Right.
A = the Fair Market Value of one share of Common
Stock, at the time the Conversion Right is exercised
pursuant to this Section 1.2.
B = the Exercise Price in effect under this Warrant at
the time the Conversion Right is exercised pursuant to
this Section 1.2.
(b) The Conversion Right may be exercised by the
holder, at any time, or from time to time, prior to the
Expiration Date, on any business day by delivering a written
notice (the "Conversion Notice") to the Company exercising the
Conversion Right and specifying (i) the total number of shares of
Common Stock the holder wishes to acquire pursuant to such
conversion and (ii) a place and a date not less than one nor more
than 20 business days from the date of the Conversion Notice for
the closing of such purchase.
(c) Upon any exercise of the Conversion Right under
Section 1.2(b) hereof, (i) the holder will surrender the Warrant
and (ii) the Company will deliver to the holder a certificate or
certificates for the number of shares of Common Stock issuable
upon such conversion, together with cash, in lieu of any fraction
of a share, as provided in Section 2 below. Upon any partial
exercise of such Conversion Right, the Company at its expense
will forthwith issue and deliver to or upon the order of the
holder hereof a new Warrant or Warrants of like tenor, in the
name of the holder hereof or as such holder (upon payment by such
holder of any applicable transfer taxes) may request, providing
in the aggregate on the face or faces thereof for the number of
shares of Common Stock for which such Warrant or Warrants may
still be exercised or converted after giving effect to the
exercise of the Conversion Right.
(d) Fair Market Value of a share of Common Stock as of
a particular date (the "Determination Date") shall mean:
(i) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") National Market
System, then the last sale price reported for the last business
day immediately preceding the Determination Date.
(ii) If the Company's Common Stock is not traded
on an exchange or on the NASDAQ National Market System but is
traded in the over-the-counter market, then the mean of the
closing bid and asked prices reported for the last business day
immediately preceding the Determination Date.
(iii) Except as provided in subsections
1.2(d)(iv) below, if the Company's Common Stock is not publicly
traded, then as determined in good faith by mutual agreement of
the Company's Board of Directors and the holders of at least 66-
2/3% in interest of the then outstanding Warrants.
<PAGE> 32 of 42
(iv) If the Determination Date is the date of a
liquidation, dissolution or winding up of the Company, or any
event deemed to be a liquidation, dissolution or winding up
pursuant to the Company's Certificate of Incorporation, as
amended (the "Charter"), then
the amount specified in the Charter upon a liquidation,
dissolution or winding up, assuming for purposes of this
subsection 1.2 that all of the shares of Common Stock issuable
upon exercise of all of the Warrants are outstanding at the
Determination Date.
1.3 Limitations on Exercise and Conversion.
Notwithstanding anything contained herein to the contrary, this
Warrant may not be exercised or converted pursuant to subsections
1.1 and 1.2 hereof, in whole, or in part, prior to the
Commencement Date (as defined). The "Commencement Date" shall be
January 1, 1997.
1.4 Trustee for Warrant Holders. In the event that a
bank or trust company shall have been appointed as trustee for
the holder of the Warrant pursuant to subsection 4.2 hereof, such
bank or trust company shall have all the powers and duties of a
warrant agent appointed pursuant to Section 15 and shall accept,
in its own name for the account of the Company or such successor
person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor, as the case may be, on exercise
or conversion of this Warrant pursuant to this Section 1. The
Company shall give the holder of the Warrant notice of the
appointment of any trustee and any change thereof.
2. Delivery of Stock Certificates. As soon as practicable
after the exercise or conversion of this Warrant, and in any
event within 30 days thereafter, the Company at its expense
(including the payment by it of any applicable issue or stamp
taxes) will cause to be issued in the name of and delivered to
the holder hereof, or as such holder (upon payment by such holder
of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable
shares of Common Stock to which such holder shall be entitled on
such exercise or conversion, in such denominations as may be
requested by such holder, plus, in lieu of any fractional share
to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current market value (as
determined in good faith by the Board of Directors) of one full
share, together with any other stock or other securities and
property (including cash, where applicable) to which such holder
is entitled upon such exercise or conversion pursuant to Section
1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property,
etc.; Reclassification, etc. In case at any time or from time to
time, the holders of Common Stock shall have received, or (on or
after the record date fixed for the determination of shareholders
eligible to receive) shall have become entitled to receive,
without payment therefor,
(a) other or additional stock or other securities or
property (other than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely
out of earnings or earned surplus of the Company), or
<PAGE> 33 of 42
(c) other or additional stock or other securities or
property (including cash) by way of spin-off, split-up,
reclassification, recapitalization, combination of
shares or similar corporate rearrangement,
other than additional shares of Common Stock issued as a stock
dividend or in a stock-split (adjustments in respect of which are
provided for in Section 5), then and in each such case the holder
of this Warrant, on the exercise or conversion hereof as provided
in Section 1, shall be entitled to receive the amount of stock
and other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section 3) which
such holder would hold on the date of such exercise or conversion
if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date
hereof to and including the date of such exercise or conversion
retained such shares and all such other or additional stock and
other securities and property (including cash in the cases
referred to in subdivisions (b) and (c) of this Section 3)
receivable by him as aforesaid during such period, giving effect
to all adjustments called for during such period by Section 4.
4. Adjustment for Reorganization, Consolidation, Merger,
etc.
4.1 Reorganization; Merger; Sale of Assets. In case
at any time or from time to time, the Company shall (a) effect a
reorganization, (b) consolidate with or merge into any other
person, or (c) transfer all or substantially all of its
properties or assets to any other person under any plan or
arrangement contemplating the dissolution of the Company, then,
in each such case, the holder of this Warrant, on the exercise or
conversion hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or
the effective date of such dissolution, as the case may be, shall
receive, in lieu of the Common Stock issuable on such exercise or
conversion prior to such consummation or such effective date, the
stock and other securities and property (including cash) to which
such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such
holder had so exercised or converted this Warrant, immediately
prior thereto, all subject to further adjustment thereafter as
provided in Sections 3 and 5.
4.2 Dissolution. In the event of any dissolution of
the Company following the transfer of all or substantially all of
its properties or assets, the Company, prior to such dissolution,
shall at its expense deliver or cause to be delivered the stock
and other securities and property (including cash, where
applicable) receivable by the holder of this Warrant after the
effective date of such dissolution pursuant to this Section 4 to
the holder or a bank or trust company having its principal office
in New Jersey, as trustee for the holder or holders of the
Warrants.
4.3 Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer followed by dissolution
referred to in this Section 4 (where, in the case of a transfer
followed by a dissolution, the transferee is paying for the
Company's assets all or in part with its equity securities), this
Warrant shall continue in full force and effect and the terms
hereof shall be
<PAGE> 34 of 42
applicable to the shares of stock and other securities and property
receivable on the exercise or conversion of this Warrant after the
consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case
may be. The Company shall be obligated, prior to and as a condition
of such transaction, to enter into an agreement for the benefit of the
Warrant holders that is binding upon the issuer of any such stock
or other securities, including, in the case of any such transfer,
the person acquiring all or substantially all of the properties
or assets of the Company, pursuant to which such person shall
expressly assume the terms of this Warrant as provided in Section
6.
5. Other Adjustments.
5.1 Adjustment for Extraordinary Events. In the event
that the Company shall (i) issue additional shares of the Common
Stock as a dividend or other distribution on outstanding Common
Stock, (ii) subdivide or reclassify outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then, in each such
event, the Exercise Price shall, simultaneously with the
happening of such event, be adjusted by multiplying the then
Exercise Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to
such event and the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such event,
and the product so obtained shall thereafter be the Exercise
Price then in effect. The Exercise Price, as so adjusted, shall
be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 5.
The Holder of this Warrant shall thereafter, on the exercise
hereof as provided in Section 1, be entitled to receive that
number of shares of Common Stock determined by multiplying the
number of shares of Common Stock issuable upon the exercise of
this Warrant immediately prior to such issuance by a fraction of
which (i) the numerator is the Exercise Price in effect
immediately prior to the issuance resulting in an adjustment to
the Exercise Price and (ii) the denominator is the Exercise Price
in effect after giving effect to any adjustment resulting from
such issuance.
5.2 Adjustments for Issuances Below Exercise Price.
If the Company shall at any time or from time to time after
August 19, 1994 issue or sell any shares of Common Stock (other
than (i) shares issued in transactions to which Section 5.1 of
this Warrant applies, (ii) up to 792,450 shares of Common Stock
(appropriately adjusted for subdivisions, combinations, stock
dividends and the like) issued as compensation or pursuant to the
exercise of options granted as compensation to employees,
officers, directors or consultants of the Company in connection
with their service to the Company, (iii) shares of Common Stock
issuable upon conversion of the Series A Convertible Preferred
Stock or Series C Convertible Preferred Stock, and (iv) shares of
Common Stock issuable pursuant to subscriptions, warrants,
options, convertible securities, or other rights outstanding as
of August 19, 1994 and not included in clauses (i), (ii) or (iii)
above for a consideration per share less than the Exercise Price
in effect for this Warrant immediately prior to the time of such
issue or sale, then forthwith upon such issue or sale the
Exercise Price shall (until another such issue or sale) be
reduced to a price (calculated to the nearest cent) determined by
dividing (i) an amount equal to the sum of (X) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale, multiplied by the Exercise Price in effect
immediately prior to such event plus (Y) the consideration, if
any, received by the Company
<PAGE> 35 of 42
upon such issue or sale, by (ii) the total number of shares of
Common Stock outstanding immediately after such issue or sale
or dividend or other distribution. Further, the number of shares
purchasable hereunder shall be increased to a number determined
by dividing (i) the number of shares purchasable hereunder immediately
prior to such issue or sale, multiplied by the Exercise Price hereunder
immediately prior to such event, by (ii) the Exercise Price in effect
immediately after the foregoing adjustment.
For the purpose of this Section 5.2, the following
provisions shall also be applicable:
A. In case the Company shall in any manner offer any
rights to subscribe for or to purchase shares of Common
Stock, or grant any options for the purchase of shares of
Common Stock, at a price less than the Exercise Price in
effect immediately prior to the time of the offering of such
rights or the granting of such options, as the case may be,
all shares of Common Stock which the holders of such rights
or options shall be entitled to subscribe for or purchase
pursuant to such rights or options shall be deemed to be
issued or sold as of the date of the offering of such rights
or the granting of such options, as the case may be, and the
minimum aggregate consideration named in such rights or
options for the Common Stock covered thereby, plus the
consideration received by the Company for such rights or
options, shall be deemed to be the consideration actually
received by the Company (as of the date of the offering of
such rights or the granting of such options, as the case may
be) for the issue or sale of such shares.
B. In case the Company shall in any manner issue or sell
any shares of any class or obligations directly or
indirectly convertible into or exchangeable for shares of
Common Stock and the price per share for which Common Stock
is deliverable upon such conversion or exchange (determined
by dividing (i) the total minimum amount received or
receivable by the Company in consideration of the issue or
sale of such convertible or exchangeable shares or
obligations, plus the total minimum amount of premiums, if
any, payable to the Company upon conversion or exchange, by
(ii) the total number of shares of Common Stock necessary to
effect the conversion or exchange of all such convertible or
exchangeable shares or obligations) shall be less than the
Exercise Price in effect immediately prior to the time of
such issue or sale, then such issue or sale shall be deemed
to be an issue or sale (as of the date of issue or sale of
such convertible or exchangeable shares or obligations) of
the total maximum number of shares of Common Stock necessary
to effect the conversion or exchange of all such convertible
or exchangeable shares or obligations, and the total minimum
amount received or receivable by the Company in
consideration of the issue or sale of such convertible or
exchangeable shares or obligations, plus the total minimum
amount of premiums, if any, payable to the Company upon
exchange or conversion, shall be deemed to be the
consideration actually received (as of the date of the issue
or sale of such convertible or exchangeable shares or
obligations) for the issue or sale of such Common Stock.
C. In determining the amount of consideration received by
the Company for Common Stock, securities convertible thereinto or
exchangeable therefor, or rights or options for the
<PAGE> 36 of 42
purchase thereof, no deduction shall be made for expenses or underwriting
discounts or commissions paid by the Company. The Board shall
determine in good faith the fair value of the amount of
consideration other than money received by the Company upon the
issue by it of any of its securities. The Board shall also
determine in good faith the fair value of any dividend or other
distribution made upon Common Stock payable in property,
securities of the Company other than Common Stock or securities
of a corporation other than the Company. The Board shall, in
case any Common Stock, securities convertible thereinto or
exchangeable therefor, or rights or options for the purchase
thereof are issued with other stock, securities or assets of the
Company, determine in good faith what part of the consideration
received therefor is applicable to the issue of the Common Stock,
securities convertible thereinto or exchangeable therefor, or
rights or options for the purchase thereof.
D. If there shall be any change in (i) the minimum
aggregate consideration named in the rights or options referred
to in Subsection A above, (ii) the consideration received by the
Company for such rights or options, (iii) the price per share for
which Common Stock is deliverable upon the conversion or exchange
of the convertible or exchangeable shares or obligations referred
to in Subsection B above, (iv) the number of shares which may be
subscribed for or purchased pursuant to the rights or options
referred to in Subsection A above, or (v) the rate at which the
convertible or exchangeable shares or obligations referred to in
Subsection B above are convertible into or exchangeable for
Common Stock, then the Exercise Price in effect at the time of
such event shall be readjusted to the Exercise Price which would
have been in effect at such time had such rights, options, or
convertible or exchangeable shares or obligations still
outstanding provided for such changed consideration, price per
share, number of shares, or rate of conversion or exchange, as
the case may be, at the time initially offered, granted, issued
or sold, but only if as a result of such adjustment the Exercise
Price then in effect hereunder is thereby reduced.
6. No Impairment. The Company will not, by amendment of
its charter or through any reorganization, transfer of assets,
consolidation, merger, dissolution, or any other similar
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of the
Warrant against impairment due to such event. Without limiting
the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the
exercise or conversion of the Warrant above the amount payable
therefor on such exercise or conversion, (b) will take all action
that may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable shares
of stock, free from all taxes, liens and charges with respect to
the issue thereof, on the exercise or conversion of all or any
portion of this Warrant from time to time outstanding, and (c)
will not consolidate with or merge into any other person or
permit any such person to consolidate with or merge into the
Company (if the Company is not the surviving person) or transfer
all or substantially all the assets of the Company to another
person, unless such other person shall expressly assume in
writing and will be bound by all the terms of this Warrant,
including the provisions of Section 4.
<PAGE> 37 of 42
7. Accountants' Certificate as to Adjustments. In each
case of any adjustment or readjustment in the number or type of
shares or securities issuable on the exercise or conversion of
this Warrant, the Company at its expense will promptly cause
independent certified public accountants of recognized national
standing selected by the Board of the Company to compute such
adjustment or readjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth such adjustment
or readjustment, the Exercise Price resulting therefrom and the
increase or decrease, if any, or the number of shares purchasable
at such price upon exercise or conversion of the Warrant, and
showing in detail the facts and computation upon which such
adjustment or readjustment is based. The Company will forthwith
mail a copy of each such certificate to each registered holder of
this Warrant, and will, on the written request at any time of the
holder of this Warrant, furnish to such holder a like certificate
setting forth the Exercise Price at the time in effect and
showing how such Exercise Price was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the
holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive
any dividend on, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any
other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of
the Company or any transfer of all or substantially all the
assets of the Company to or consolidation or merger of the
Company with or into any other person, or
(c) any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then and in each such event the Company will mail or cause to be
mailed to the registered holder of this Warrant a notice
specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution
or right, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holders of
record of Common Stock shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable on
such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or
winding-up, and (iii) the amount and character of any stock or
other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue
or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made. Such notice
shall also state that the action in question or the record date
is subject to the effectiveness of a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), or
a favorable vote of stockholders if either is required. Such
notice shall be mailed at least, 20 days prior to the date
specified in such notice on which any such action is to be taken
or the record date, whichever is earlier.
<PAGE> 38 of 42
9. Reservation of Stock, etc., Issuable on Exercise of
Warrants. The Company will at all times reserve and keep
available, solely for issuance and delivery on the exercise or
conversion of the Warrant, all shares of Common Stock from time
to time issuable on the exercise or conversion of this Warrant.
10. Registration. If the issuance of any shares of Common
Stock required to be reserved for purposes of exercise or
conversion of this Warrant or for the conversion of such shares
requires registration with, or approval of, any Federal
governmental authority under any Federal or state law (other than
any registration under the Securities Act) or listing on any
national securities exchange, before such shares may be issued
upon exercise or conversion of this Warrant or such conversion,
the Company will, at its expense, use its best efforts to cause
such shares to be duly registered or approved, or listed on the
relevant national securities exchange, as the case may be, at
such time, so that such shares may be issued in accordance with
the terms hereof and so converted.
11. Transfer of Warrant. The transfer of this Warrant and
all rights hereunder, in whole or in part, is registrable at the
office or agency of the Company referred to below by the holder
hereof in person or by his duly authorized attorney, upon
surrender of this Warrant properly endorsed. Each taker and
holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant, when endorsed in blank, shall be
deemed negotiable, and that the holder hereof, when this Warrant
shall have been so endorsed, may be treated by the Company and
all other persons dealing with this Warrant as the absolute owner
and holder hereof for any purpose and as the person entitled to
exercise the rights represented by this Warrant, or to the
registration of transfer hereof on the books of the Company; and
until due presentment for registration of transfer on such books
the Company may treat the registered holder hereof as the owner
and holder for all purposes, and the Company shall not be
affected by notice to the contrary.
12. Register of Warrants. The Company shall maintain, at
the principal office of the Company (or such other office as it
may designate by notice to the holder hereof), a register in
which the Company shall record the name and address of the person
in whose name this Warrant has been issued, as well as the name
and address of each transferee and each prior owner of such
Warrant.
13. Exchange of Warrant. This Warrant is exchangeable,
upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 12, for one or more
new Warrants of like tenor representing in the aggregate the
right to subscribe for and purchase the number of shares of
Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for
and purchase such number of shares as shall be designated by said
holder hereof at the time of such surrender.
14. Replacement of Warrant. On receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of
any such loss, theft or destruction of this Warrant, on delivery
of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such
mutilation,
<PAGE> 39 of 42
on surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver, in lieu thereof,
a new Warrant of like tenor; provided, however, if this Warrant
of which the original holder of this Warrant, its nominee, or any
of its officers or directors is the registered holder is lost,
stolen or destroyed, the affidavit of the President, Vice
President, Treasurer, or any General Partner of the registered
holder setting forth the circumstances with respect to such loss,
theft or destruction shall be accepted as satisfactory evidence
thereof, and no indemnity bond or other security shall be
required as a condition to the execution and delivery by the
Company of a new Warrant in replacement of such lost, stolen or
destroyed Warrant other than the registered holder's written
agreement to indemnify the Company.
15. Warrant Agent. The Company may, by written notice to
the registered holder of this Warrant, appoint an agent for the
purpose of issuing Common Stock on the exercise or conversion of
the Warrant pursuant to Section 1, exchanging this Warrant
pursuant to Section 13, and replacing this Warrant pursuant to
Section 14, or any of the foregoing, and thereafter any such
issuance, exchange or replacement, as the case may be, shall be
made at such office by such agent.
16. Remedies. The Company stipulates that the remedies at
law of the holder of this Warrant in the event of any default or
threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant are not and will
not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any
of the terms hereof or otherwise.
17. Closing of Books. The Company will at no time close
its transfer books against the transfer of any Warrant or of any
shares of Common Stock issued or issuable upon the exercise or
conversion of any Warrant in any manner which interferes with the
timely exercise or conversion of this Warrant.
18. No Rights or Liabilities as a Stockholder. This Warrant
shall not entitle the holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the holder
hereof to purchase Common Stock, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise
to any liability of such holder for the Exercise Price or as a
stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
19. Notices, etc. All notices and other communications
from the Company to the registered holder of this Warrant shall
be mailed by first class registered or certified mail, postage
prepaid, at such address as shall have been furnished to the
Company in writing by such holder.
20. Investment Representations. The holder hereof (and
each subsequent holder) represents to the Company that this
Warrant is being acquired for the holder's own account and for
the purpose of investment and not with a view to, or for sale in
connection with, the distribution thereof, nor with any present
intention of distributing or selling the Warrant or the Common
Stock issuable upon exercise or conversion of the Warrant. The
holder hereof acknowledges and agrees that the Warrant and the
Common Stock issuable upon exercise
<PAGE> 40 of 42
or conversion of the Warrant (if any) have not been (and at the
time of acquisition by such holder, will not have been or will not be)
registered under the Securities Act or under the securities laws of
any state, in reliance upon certain exemptive provisions of such statutes.
The holder hereof recognizes and acknowledges that such claims of
exemption are based, in part, upon the representations of the
holder contained herein and in the Agreement. The holder hereof
further recognizes and acknowledges that because the Warrant and
the Common Stock issuable upon exercise or conversion of the
Warrant (if any) are unregistered, they are not presently
eligible for resale, and may only be resold in the future
pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws, or
pursuant to a valid exemption from such registration
requirements. Each subsequent holder hereof shall be required to
make all of the representations which are required by this
Section 20 to be made by the initial holder hereof, including
without limitation the representations which are contained in the
Agreement.
21. Binding Effect on Successors. This Warrant shall be
binding upon any corporation succeeding the Company by merger,
consolidation or acquisition of all or substantially all of the
Company's assets (to the extent provided in Section 4), and all
of the obligations of the Company relating to the Common Stock
issuable upon the exercise or conversion of this Warrant shall
survive the exercise, conversion, and termination of this Warrant
and all of the covenants and agreements of the Company shall
inure to the benefit of the successors and assigns of the holder
hereof. The Company will, at the time of the exercise or
conversion of this Warrant, in whole or in part, upon request of
the holder hereof but at the Company's expense, acknowledge in
writing its continuing obligation to the holder hereof in respect
of any rights (including, without limitation, any right to
registration of the shares of Registrable Securities) to which
the holder hereof shall continue to be entitled after such
exercise or conversion in accordance with this Warrant; provided,
that the failure of the holder hereof to make any such request
shall not affect the continuing obligation of the Company to the
holder hereof in respect of such rights.
22. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought, subject to
the provisions of Section 6.09 of the Agreement. This Warrant
shall be construed and enforced in accordance with and governed
by the internal laws of the State of Delaware. The headings in
this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant
is being executed as an instrument under seal. The invalidity or
unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 41 of 42
IN WITNESS WHEREOF the Company has executed this Warrant on the
date set forth below.
Dated: August 19, 1995 NOBEL EDUCATION DYNAMICS, INC.
By:
Title:
[Corporate Seal]
Attest:
____________________________
Asst. Secretary
<PAGE> 42 of 42
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: NOBEL EDUCATION DYNAMICS, INC.
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant for, and to purchase
thereunder, ___________ shares of NOBLE EDUCATION DYNAMICS, INC.
and herewith makes payment of $ __________ therefor in cash, and
requests that the certificates for such shares be issued in the
name of, and delivered to____________ ___________ whose address
is _______________ _____________.
Dated:
___________________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
__________________________________
__________________________________
(Address)
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns,
and transfers unto_________________ the right represented by the
within Warrant to purchase ________ shares of_________________
__________________ of NOBEL EDUCATION DYNAMICS, INC. to which the
within Warrant relates, and appoints _____________ Attorney to
transfer such right on the books of NOBEL EDUCATION DYNAMICS,
INC. with full power of substitution in the premises.
Dated: _________________________________
(Signature must conform to name
of holder as specified on the face
of the Warrant)
_________________________________
_________________________________
Signed in the presence of:
____________________________
