EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT is dated as of September 29, 2000, among
Caliber Learning Network, Inc., a Maryland corporation (the "COMPANY"), Fleming
US Discovery Fund III, L.P., Fleming US Discovery Offshore Fund III, L.P. and
Robert Fleming Nominees Limited (collectively, the "FLEMING FUNDS"). Capitalized
terms used and not otherwise defined herein have the respective meanings
ascribed to them in the Stock Purchase Agreements.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the terms of the Stock Purchase Agreements,
dated as of October 26, 1999, between the Company and each of the Fleming Funds
(the "STOCK PURCHASE AGREEMENTS"), the Fleming Funds purchased an aggregate of
150,000 shares and have received 10,852.6 shares in the form of dividends
thereon (the "SHARES") of the Company's Series A Convertible Preferred Stock,
par value $.01 per share (the "SERIES A PREFERRED");
WHEREAS, the Company and the Fleming Funds have agreed to the
exchange of the Shares of Series A Preferred for an equal number of shares of
the Company's Series A-1 Convertible Preferred Stock, par value $.01 per share
(the "SERIES A-1 PREFERRED") (the "Exchange") upon the terms set forth herein,
in order to allow the Series A-1 Preferred to be classified as Stockholders'
Equity under generally accepted accounting principles;
WHEREAS, on September 29, 2000, the Company filed Articles
Supplementary with the Maryland State Department of Assessments and Taxation to
classify the Series A-1 Preferred in the form attached as EXHIBIT A hereto (the
"ARTICLES SUPPLEMENTARY").
NOW, THEREFORE, in consideration of the agreements and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. PRIOR AGREEMENTS.
(a) From and after the date hereof, all references to the Series A
Preferred in the following documents, to the extent applicable, shall be deemed
to refer to the Series A-1 Preferred:
(i) Stock Purchase Agreements;
(ii) Stockholders' Agreement among the Company, the Fleming Funds
and Chris L. Nguyen (the "STOCKHOLDERS' AGREEMENT");
(iii) Registration Rights Agreement among the Company and the
Fleming Funds (the "REGISTRATION RIGHTS AGREEMENT"); and
(iv) Side Letter regarding Registration Rights among the Company,
MCI Telecommunications Corporation, Sylvan Learning Systems, Inc., Douglas L.
Becker and R. Christopher Hoehn-Saric (the "SIDE LETTER").
<PAGE>
(b) Except as expressly provided in the foregoing Section 1(a), all
terms and provisions of the Stock Purchase Agreements, the Stockholders'
Agreement, the Registration Rights Agreement and the Side Letter shall continue
in full force and effect in accordance with the provisions thereof.
2. EXCHANGE OF SHARES. The Exchange shall be effective on the date
hereof (the "EFFECTIVE DATE"). From and after the Effective Date, the
certificates representing the Shares shall be deemed to represent an equivalent
number of shares of Series A-1 Preferred ("SERIES A-1 SHARES"). SCHEDULE 1 to
this Exchange Agreement lists, as to each of the Fleming Funds, the number of
shares of Series A Preferred held, the accrued dividends thereon and the number
of shares of Series A-1 Preferred to be received in the Exchange. The Fleming
Funds agree to surrender their respective certificates representing the Shares
as soon as practicable after the Effective Date in exchange for the certificates
representing the Series A-1 Shares.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company hereby represents and warrants to each of the Fleming Funds as follows
(which representations, warranties and agreements shall survive the Effective
Date):
(A) ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
(B) POWER; AUTHORITY. The Company has all requisite power, authority
(corporate and other) and legal right to execute, deliver, enter into and
consummate the transactions contemplated by and perform its obligations under
this Exchange Agreement. The execution, delivery and performance of this
Exchange Agreement by the Company (including, without limitation, the issuance
by the Company of the Series A-1 Shares) have been duly authorized by all
required corporate and other actions. The Company has duly executed and
delivered this Exchange Agreement and this Exchange Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(C) ARTICLES SUPPLEMENTARY; SERIES A-1 PREFERRED. The Articles
Supplementary has been duly adopted by the Company and is fully effective as a
supplement to the Company's charter. The Series A-1 Shares have all of the
rights, priorities and terms set forth in the Articles Supplementary. All of the
outstanding shares of Series A-1 Preferred are, or on the Effective Date will
be, duly authorized, validly issued and outstanding, fully paid and
non-assessable. The shares of the Company's Common Stock issuable upon
conversion of the Series A-1 Preferred will be, when issued in accordance with
the terms of the Series A-1 Preferred, duly authorized, validly issued, fully
paid and non-assessable.
-2-
<PAGE>
(D) NO CONFLICT. The execution, delivery and performance by the Company
of this Exchange Agreement and any of the transactions contemplated hereby
(including, without limitation, the issuance of the Series A-1 Shares and the
Conversion Shares as contemplated herein and in the Articles Supplementary and
the adoption of the Articles Supplementary as a supplement to the Company's
charter) do not and will not (i) violate or conflict with, with or without the
giving of notice or the passage of time or both, any provision of (A) the
respective charters or by-laws of the Company or any of its Subsidiaries, (B)
any law, rule, regulation or order of any federal, state, county, municipal or
other governmental authority, (C) any judgment, writ, injunction, decree, award
or other action of any court or governmental authority or arbitrator(s), or (D)
any agreement, indenture or other instrument applicable to the Company or any of
its Subsidiaries or any of their respective properties, (ii) result in the
creation of any Lien upon any of the Company's or any Subsidiary's properties,
assets or revenues, except as provided in the Articles Supplementary of the
Series A-1 Preferred, (iii) require the consent, waiver, approval, order or
authorization of, or declaration, registration, qualification or filing with,
any Person (whether or not a governmental authority and including, without
limitation, any shareholder approval) (other than approvals which have been
obtained prior to the Effective Date), or (iv) cause antidilution clauses of any
of the Company's outstanding securities to become operative or give rise to any
preemptive rights. No provision of any item referred to in Sections (A) and (C)
of the preceding clause (i) materially adversely affects or will materially
adversely affect the assets, properties, liabilities, business, affairs, results
of operations, condition (financial or otherwise) or prospects of the Company or
the ability of the Company to perform its obligations under this Exchange
Agreement, the Stock Purchase Agreements, the Articles Supplementary, the
Stockholders' Agreement, the Registration Rights Agreement or any of the
transactions contemplated hereby or thereby.
(E) NO LITIGATION. There is no action, suit, proceeding, investigation
or claim pending or, to the knowledge of the Company or its Subsidiaries,
threatened in law, equity or otherwise before any court, administrative agency
or arbitrator which (i) questions the validity of the Exchange Agreement, the
Stock Purchase Agreements, the Articles Supplementary, the Stockholders'
Agreement, the Registration Rights Agreement, the Series A-1 Shares or the
Conversion Shares or any action taken or to be taken pursuant hereto or thereto,
(ii) reasonably could be expected to adversely affect the right, title or
interest of any of the Fleming Funds to the Series A-1 Shares or the Conversion
Shares or (iii) reasonably could be expected to result in a material adverse
change in the assets, properties, liabilities, business, affairs, results of
operations, condition (financial or otherwise) or prospects of the Company.
(F) OUTSTANDING COMMON STOCK.
(1) Schedule f(1) hereto correctly and completely lists (i) the
authorized capital stock of the Company (Common Stock and Preferred
Stock), (ii) the number of designated shares of Preferred Stock in each
series or class after giving effect to the Articles Supplementary and
(iii) on September 28, 2000 , after giving effect to the issuance of
Series A-1 Shares contemplated by the Exchange Agreement, the number of
shares outstanding in each series or class. There have been no material
issuances of shares since June 30, 2000. All of such outstanding shares
are, or on the Closing Date will be, duly authorized, validly issued
and outstanding, fully paid and non-assessable. The shares of the
Company's Common Stock issuable upon conversion of the Series A-1
Preferred will be, when issued in accordance with the terms of the
Series A-1 Preferred, duly authorized, validly issued, fully paid and
non-assessable. Except as provided in the Articles Supplementary and as
described in Schedule f(1), none of the shares of the Company's capital
stock which will be outstanding at the Effective Date (i) were or will
be subject to preemptive rights when issued or (ii) provide the holders
thereof with any preemptive rights with respect to any issuances of
capital stock.
-3-
<PAGE>
(2) Schedule f(2) hereto correctly and completely lists the
number and purpose for which shares of the Company's Common Stock are
reserved for issuance by the Company.
(3) Except for the registration rights contained in the
Registration Rights Agreement and as described in Schedule f(3), there
are and will be no outstanding registration rights with respect to any
capital stock of the Company or of any Subsidiary, which (in either
case) will be outstanding on the Closing Date, or any capital stock
referred to in Section f(2).
(4) There are no voting agreements, voting trusts, proxies or
other agreements or understandings with respect to the voting of any
capital stock of the Company or any Subsidiary.
(5) Except as described in Schedule f(5), there are no
anti-dilution protections or other adjustment provisions in existence
with respect to any capital stock of the Company or any Subsidiary or
any capital stock referred to in Section f(2).
4. TAXES. In addition to all other sums due under Section 14 of each of
the Stock Purchase Agreements, the Company agrees to pay, or cause to be paid,
all documentary, stamp and other similar Taxes, other than transfer taxes
payable upon the transfer by any of the Fleming Funds of Series A-1 Shares to a
Transferee (which transfer taxes shall be paid by the Transferee), levied under
the laws of the United States of America, any state or local Taxing Authority
thereof or therein or any other applicable jurisdiction in connection with the
issuance and exchange of the Series A-1 Shares, the conversion of Series A-1
Shares into Conversion Shares and the execution and delivery of the Exchange
Agreement and any other documents or instruments contemplated hereby and any
modification of the Exchange Agreement or Articles Supplementary or any such
other documents or instruments and will hold the Fleming Funds harmless without
limitation as to time against any and all liabilities with respect to all such
Taxes.
5. RECLASSIFICATION OF SERIES A PREFERRED. The Company hereby agrees
that, as soon as practicable following the surrender by the Fleming Funds of the
certificates representing the Shares, it will reclassify all of the authorized
shares of the Series A Preferred as Common Stock.
6. MISCELLANEOUS.
(a) Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Exchange Agreement will be effective against any
party hereto unless such modification, amendment or waiver is approved in
writing by all parties hereto. The failure of any party to enforce any of the
provisions of this Exchange Agreement will in no way be construed as a waiver of
such provisions and will not affect the right of such party thereafter to
enforce each and every provision of this Exchange Agreement in accordance with
its terms.
-4-
<PAGE>
(b) All covenants and agreements in this Exchange Agreement by or on
behalf of any of the parties hereto will be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
whether so expressed or not.
(c) The headings used in this Exchange Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
(d) If any provision of this Exchange Agreement is held to be illegal,
invalid or unenforceable, and if the rights or obligations of any party hereto
under this Exchange Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Exchange
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this Exchange Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Exchange Agreement a legal, valid and enforceable provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible.
(e) This Exchange Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State without giving effect to the conflicts of
laws principles thereof.
(f) This Exchange Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Exchange
Agreement as of the date first written above.
CALIBER LEARNING NETWORK, INC.
By: /S/ CHRIS L. NGUYEN
------------------------------------------------------
Name: Chris L. Nguyen
Title: Chief Executive Officer
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /S/ ROBERT L. BURR
-------------------------------------------
Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /S/ ROBERT L. BURR
-------------------------------------------
Robert L. Burr, member
ROBERT FLEMING NOMINEES LIMITED
By: /S/ ARTHUR LEVY
--------------------------------------------
Name: Arthur Levy
-6-
<PAGE>
<TABLE>
<CAPTION>
Schedule 1
to the Exchange Agreement
Number of Shares Dividends Received Number of Shares of
of Series A of Series A Series A-1 Preferred
Preferred as of Preferred as of as of the Effective
October 26, 1999 September 30, 2000 Date
NAME OF PURCHASER
<S> <C> <C> <C>
Fleming US Discovery Fund III, 107,728 7,792.17 115,520.17
L.P.
Fleming US Discovery Offshore 17,272 1,248.05 18,520.05
Fund III, L.P.
Robert Fleming Nominees Limited 25,000 1,812.38 26,812.38
</TABLE>
-7-
<PAGE>
Exhibit A
ARTICLES SUPPLEMENTARY
-8-
<PAGE>
SCHEDULE F(1)
CAPITAL STOCK
(i) Authorized capital stock:
Common Stock: 49,775,000
Preferred Stock: 5,392,328
(ii) Number of designated shares of Preferred Stock in each series or class
after giving effect to the Articles Supplementary:
5,167,328 shares of 6% Non-Voting Convertible Preferred Stock
225,000 shares of Series A Preferred
225,000 shares of Series A-1 Preferred
(iii) On September 28, 2000, the number of shares outstanding in each
series or class was:
12,521,101 shares of Common Stock
5,167,328 shares of 6% Non-Voting Convertible Preferred Stock
160,852.6 shares of Series A Preferred
-9-
<PAGE>
SCHEDULE F(2)
SHARES OF COMMON STOCK RESERVED FOR ISSUANCE
<TABLE>
<CAPTION>
NUMBER OF SHARES OF COMMON STOCK
RESERVED FOR ISSUANCE
PURPOSE
<C> <S>
1,193,573 Issuable upon exercise of MCI Warrant
2,570,690 Issuable upon exercise of options under the 1997 Stock Option
Plan and the 1998 Stock Incentive Plan
5,167,328 Issuable upon conversion of 6% Non-Voting Convertible Preferred
Stock
2,858,807 Issuable upon conversion of Series A Preferred or upon conversion
of Series A-1 Preferred following the Exchange
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-10-
<PAGE>
SCHEDULE F(3)
REGISTRATION RIGHTS
The Company has outstanding registration rights as provided in the
Registration Rights Agreement among the Company, Sylvan Learning Systems, Inc.,
MCI Telecommunications Corporation, Douglas L. Becker and R. Christopher
Hoehn-Saric dated as of November 22, 1996, a copy of which has been previously
furnished to the Purchaser and its counsel.
-11-
<PAGE>
SCHEDULE F(5)
ANTI-DILUTION PROTECTIONS
6% Non-Voting Convertible Preferred Stock: The anti-dilution
protections are described in Article SIXTH (b)(5)(d) of the Company's charter.
In summary, the 6% Non-Voting Convertible Preferred is subject to adjustment for
(i) (A) dividends or distribution on its capital stock in shares of its Common
Stock, (B) subdivisions or combinations of outstanding Common Stock into a
greater or lesser number of shares, (C) issuances any shares of capital stock by
reclassification of its Common Stock; (ii) issuances of rights, options or
warrants to all holders of Common Stock entitling them to subscribe for or
purchase Common Stock at a price per share less than the Fair Market Value (as
defined) per share of Common Stock; and (iii) distributions to all holders of
its Common Stock any shares of capital stock of the Corporation (other than
Common Stock) or evidence of its indebtedness or assets or rights or warrants to
subscribe for or purchase any of its securities. No adjustment in the conversion
rate shall be required unless such adjustment would require a cumulative
increase or decrease of at least 1%.
MCI Warrant: The Amended and Restated Warrant to Purchase 1,193573
Shares of Common Stock of the Company dated as of November 22, 1996 (the "MCI
Warrant"), a copy of which has been furnished to the Purchaser and its counsel,
is subject to anti-dilution protection as described in the MCI Warrant. In
summary, the MCI Warrant is subject to adjustment (i) if the Company sells
shares of Common Stock for less than $3.169 per share or issues rights, options
(other than management stock options) or warrants to purchase shares of Common
Stock for less than $3.169 per share, or (ii) for stock splits and other similar
changes in the capitalization of the Company.
-12-
<PAGE>
