AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 2000
REGISTRATION NO. 333-43874
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE PRINCETON REVIEW, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 8299 22-3727603
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
2315 BROADWAY
NEW YORK, NEW YORK 10024
(212) 874-8282
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN S. KATZMAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
THE PRINCETON REVIEW, INC.
2315 BROADWAY
NEW YORK, NEW YORK 10024
(212) 874-8282
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JOHN P. SCHMITT, ESQ. MORTON A. PIERCE, ESQ.
PETER J. SCHAEFFER, ESQ. DENISE A. CERASANI, ESQ.
PATTERSON, BELKNAP, WEBB & TYLER LLP DEWEY BALLANTINE LLP
1133 AVENUE OF THE AMERICAS 1301 AVENUE OF THE
AMERICAS
NEW YORK, NEW YORK 10036-6710 NEW YORK, NEW YORK 10019
(212) 336-2000 (212) 259-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
2002. EDGAR Online, Inc.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(3)
----------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value per
share................................. 6,210,000 $13.00 $80,730,000 $21,313
----------------------------------------------------------------------------------------------------------------------------
(1)Includes 810,000 shares that the underwriters have the option to purchase to cover over-allotments, if any.
(2)Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(a) under the Securities Act of
1933.
(3)Includes $17,160 previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT
WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE
IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE
SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT
SOLICITING OFFERS TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 16, 2000
PROSPECTUS
5,400,000 SHARES
[LOGO]
COMMON STOCK
This is the initial public offering of common stock by The Princeton Review, Inc. We are selling 5,400,000 shares of our common
stock. We estimate that the initial public offering price will be between $11.00 and $13.00 per share.
2002. EDGAR Online, Inc.
Prior to this offering, there has been no public market for our common stock. We have applied to have the shares of common stock
approved for quotation on the Nasdaq National Market under the symbol REVU.
PER SHARE
TOTAL
---------
-----
Initial public offering price............................... $ $
Underwriting discounts and commissions...................... $ $
Proceeds to The Princeton Review, before expenses........... $ $
The underwriters may also purchase up to 810,000 additional shares of common stock from us at the initial public offering price, less
the underwriting discounts and commissions, within 30 days from the date of this prospectus to cover over-allotments.
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 8.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
CHASE H&Q
U.S. BANCORP PIPER JAFFRAY
FIRST UNION SECURITIES, INC.
, 2000
3
[INSIDE FRONT COVER]
The Princeton Review, Inc. logo is at the top left of the inside front cover. Below the logo are three color photographs arranged
diagonally across the page.
Picture 1:Photograph, lower left, depicts two students with books. At the left of photograph is a fading graphic depiction of links from
our Web sites. Caption at right reads "The Princeton Review helps students, parents and educators deal with competitive college and
graduate school admissions and the growing number of standardized assessments."
Picture 2:Photograph, top center, shows a student with a laptop computer.
Picture 3:Photograph, top right, shows students at tables taking tests and fades into border.
At the bottom of the page are the words "www.PrincetonReview.com."
[INSIDE GATEFOLD]
The gatefold is a photographic, graphic and textual description of our business divisions. On the top left of the page is The Princeton
Review, Inc. logo. At the top right of the page are the words "Better Scores, Better Schools." At left of the page under the logo is the
caption "Over the years, The Princeton Review has helped hundreds of thousands of students with test preparation, admissions and
financial aid advice through courses, books, our Web site and software." Under the caption is a color photograph of two of our test
preparation books for the GRE and the GMAT.
In the left center of the page is a color photograph of a page from our Homeroom.com Web site with a black and white photograph of
a jumping student superimposed on the Web page. Beneath this photograph are the words, "Homeroom.com. Homeroom.com is our
new Web-based service that provides individualized assessment, diagnosis and targeted educational resources to support learning for
2002. EDGAR Online, Inc.
students in grades 3-8. Homeroom.com is designed to help students excel on state-mandated tests and meet curricular standards. We
believe that it fosters a connection between students, teachers and parents by actively involving them in the learning process."
In the right center of the page is a color photograph of a page from our Review.com Web site. Beneath this photograph are the words,
"Review.com. Need information about standardized tests, admissions, internships or career programs? Review.com is one of the most
popular Web sites devoted to researching and getting into college and graduate school."
At the far right of the page is a color photograph of a page from our Princeton Review Online test preparation course with a color
photograph of a student and teacher superimposed on the Web page. Beneath this photograph are the words, "Instruction and
Guidance. The Princeton Review's courses helped more than 90,000 students prepare for various standardized tests at the high school,
college and professional level in 1999. Our courses are given in more than 500 locations in 11 countries."
Below are the words, "Princeton Review Online. The Princeton Review Online courses offer students a convenient, fast and efficient
way to prepare for standardized tests online. With the same quality teachers and techniques, our online resources offer the flexibility to
prep while balancing school, work and family obligations."
In the bottom right hand corner of the page are the words "www.PrincetonReview.com."
4
TABLE OF CONTENTS
PAGE
----
Prospectus Summary.......................................... 1
Risk Factors................................................ 8
Forward-Looking Statements.................................. 20
Our Restructuring........................................... 20
Our Franchised Operations and Our Plans to Acquire Our
Domestic Franchises....................................... 21
Use of Proceeds............................................. 23
Dividend Policy............................................. 23
Capitalization.............................................. 24
Dilution.................................................... 26
Unaudited Pro Forma Consolidated Financial Data............. 27
Selected Consolidated Historical Financial Data............. 32
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 34
Business.................................................... 50
Management.................................................. 65
Related Party Transactions.................................. 77
Principal Stockholders...................................... 80
Description of Capital Stock................................ 83
Shares Eligible for Future Sale............................. 86
Underwriting................................................ 88
Legal Matters............................................... 90
Experts..................................................... 90
Change in Accountants....................................... 90
Where You Can Find More Information......................... 91
Index to Financial Statements............................... F-1
5
PROSPECTUS SUMMARY
You should read this summary together with the more detailed information about us and the financial statements and notes appearing
elsewhere in this prospectus. In this prospectus, unless the context indicates otherwise, "The Princeton Review," "we," "us," and "our"
refer to The Princeton Review, Inc. and its subsidiaries and predecessors.
2002. EDGAR Online, Inc.
THE PRINCETON REVIEW
We have built a well-known and trusted brand on our 19 years of experience and proven success in raising students' standardized test
scores and providing quality academic information. We provide integrated online, print and classroom-based products and services
that address the needs of students, parents, educators and educational institutions. We believe we offer the leading SAT preparation
course and are among the leading providers of test preparation courses for most of the other major post-secondary and graduate
admissions tests. In addition, we operate one of the most widely used educational Web sites dedicated to post-secondary academic
opportunities. We recently launched an online service designed to help primary school students maximize their academic potential and
prepare for state-mandated assessments. Finally, we author over 150 print and software titles on test preparation and college selection.
Our business is divided into the following three divisions:
- Instruction and Guidance, founded in 1981, delivers a range of services, including standardized test preparation for the SAT, GMAT,
MCAT, LSAT, GRE and other admissions tests, both online and in a classroom setting. In 1999, our Instruction and Guidance division
and our franchisees provided courses to over 90,000 students in more than 500 locations. Instruction and Guidance also offers
admissions counseling directly to students and through institutional relationships with high schools. During 1999, we derived
approximately 58% of our total revenue from test preparation courses and tutoring and approximately 14% of our total revenue from
our franchisees. We launched our Internet-based test preparation courses in July 2000.
- Review.com, founded in 1994, operates a leading educational Web site that brings together potential applicants and their families,
guidance counselors and colleges and graduate schools to exchange information and facilitate the recruitment, application and
admissions processes. Review.com also authors over 150 print and software titles that are published by Random House, Inc., TIME
Magazine and other publishers. During 1999, we derived approximately 8% of our total revenue from publishers of our books and
software and approximately 3% of our total revenue from colleges and businesses that market and advertise on our Review.com Web
site and our related products.
- Homeroom.com, founded in 1998, offers an online subscription service for schools and families that provides academic assessment,
remediation and enrichment services to children in grades three through eight. Homeroom.com also creates Princeton Review branded
content for use in textbooks and workbooks published by The McGraw-Hill Companies, Inc. During 1999, we derived approximately
13% of our total revenue from services to McGraw-Hill. We began selling our Homeroom.com online subscription service in August
2000.
THE MARKET OPPORTUNITY
The education market is the second largest sector of the U.S. economy, according to EduVentures LLC. The U.S. Department of
Education estimates that approximately $372 billion was spent in the United States during the 1998-1999 school year on kindergarten
through twelfth grade, or K-12, education. However, increased public concern over the effectiveness of K-12 schools in teaching basic
academic skills has increased the pressure on educators to improve overall student performance. Over the past several years, a majority
of states have begun to implement high-stakes
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testing programs that hold teachers, principals and superintendents accountable for student achievement. In response, educators are
increasingly looking for a means to improve measurable academic performance on these high-stakes assessments. Educators, students
and parents are also increasingly recognizing the Internet as a valuable educational resource. International Data Corporation estimates
that instructional technology spending in the U.S. K-12 public school market will increase from $2.9 billion in 1998 to $6.8 billion in
2003.
As students make the transition to higher education, families discover that the college selection and admissions process can be
competitive, costly and complex. We estimate that more than $250 million was spent on test preparation courses in 1999. As a
growing number of students seek guidance through the testing and application process, we believe many high schools find it
increasingly difficult to provide students with effective college and career counseling and are looking for ways to improve academic
counseling services. To address these challenges, we find that students, parents and schools are increasingly seeking a comprehensive,
one-stop source of information and assistance in the testing, application and admissions process. At the same time, our experience
suggests that colleges and graduate schools are competing to reach and enroll greater numbers of the most desirable prospects in a
cost-effective and efficient manner.
OUR SOLUTION
2002. EDGAR Online, Inc.
We provide integrated online, print and classroom-based educational products and services that, we believe, offer the following
benefits:
Benefits to Students
- improved admissions test scores;
- convenient and centralized resource for college selection and application services;
- quality individual and institutional admissions counseling and advisory services; and
- enhanced academic achievement and improved outcomes on state-mandated assessments.
Benefits to Parents
- increased involvement in the educational and admissions processes in an easy and time-efficient manner;
- trusted resource for guidance through educational transitions; and
- access to active community discussions with other parents and educational experts.
Benefits to Educators and Educational Institutions
- improved college guidance programs in high schools;
- cost-effective way for colleges and graduate schools to reach and enroll prospective students;
- improved student performance on state-mandated assessments; and
- more efficient use of classroom time through effective academic diagnosis.
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OUR STRATEGY
We intend to build upon the Princeton Review brand and expertise in our existing and related education and testing markets. The key
elements of this strategy include:
- defining and securing the next generation of test preparation;
- building presence in the K-12 market;
- capitalizing on the network effect among students, parents, educators and schools on our Review.com Web site;
- expanding institutional relationships;
- increasing the cross-marketing of our products and services; and
- broadening e-commerce and advertising initiatives.
OUR FRANCHISES
Our classroom-based courses and tutoring services are provided through company-operated locations and our independent franchisees.
Under our franchise agreements, our franchisees pay us a royalty of 8% of their cash receipts collected under The Princeton Review
name. They also purchase our course and marketing materials, which they use in conducting and promoting their classes. Royalties
collected from our independent franchisees and revenue from their purchases of materials together accounted for approximately 14%
of our 1999 revenue and approximately 16% of our revenue for the nine-month period ended September 30, 2000. As of September
30, 2000, we had 15 franchisees operating approximately 40 offices under the Princeton Review name in the United States and
approximately 13 offices abroad operated by franchisees in 10 additional countries. Based on the royalties paid to us by our
2002. EDGAR Online, Inc.
franchisees during these periods, we estimate that our franchisees had cash receipts of approximately $42.0 million in 1999 and
approximately $38.0 million in the first nine months of 2000.
If we are able to negotiate favorable terms, we will seek to purchase the businesses operated by our domestic franchisees over the next
several years. As part of this strategy, on May 30, 2000, we entered into an option agreement to acquire the assets comprising the
businesses of Princeton Review of Boston, Inc. and Princeton Review of New Jersey, Inc. Each of these entities provides test
preparation courses under The Princeton Review name through one or more franchise agreements with us. This option becomes
effective upon the completion of this offering and remains in effect until December 31, 2000. The combined purchase price under this
option is approximately $12.5 million, subject to adjustments specified in the agreement. For a more detailed description of this option
agreement, see "Our Franchised Operations and Our Plans to Acquire Our Domestic Franchises -- Option Agreement to Purchase Two
of Our Independent Franchises." Additionally, on August 18, 2000, we acquired the operations of Princeton Review of Hawaii, Inc.
and, on September 8, 2000, we acquired the operations of Princeton Review of Quebec, Inc. for a combined purchase price of
approximately $320,000 in cash. Each of these entities had previously operated a Princeton Review franchise.
For the year ended December 31, 1999, we had revenue of approximately $40.3 million and a net loss of approximately $2.0 million.
For the nine months ended September 30, 2000, we had revenue of approximately $34.2 million and a net loss of approximately $3.0
million. We expect to incur operating and net losses for the foreseeable future.
Our executive offices are located at 2315 Broadway, New York, NY 10024. Our telephone number is (212) 874-8282. The Princeton
Review, Inc. was incorporated in March 2000 and is the successor to a number of affiliated entities operating under The Princeton
Review name, the first of which was formed in 1981. Our corporate Web site address is www.PrincetonReview.com. Information
contained on our Web sites is not part of this prospectus. Each trademark, trade name or service mark appearing in this prospectus is
the property of its holder.
3
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THE OFFERING
2002. EDGAR Online, Inc.
Common stock offered by The Princeton
Review.................................... 5,400,000 shares
Common stock to be outstanding after this
offering.................................. 25,789,928 shares
Use of proceeds........................... We intend to use the net proceeds
from this offering to repay
outstanding indebtedness, for
working capital, other general
corporate purposes and capital
expenditures. If we acquire the
businesses of our domestic
franchisees, including Princeton
Review of Boston and Princeton
Review of New Jersey, both of
which are currently under option,
we expect to use a portion of the
net proceeds from this offering
to
consummate these acquisitions. We
also may use a portion of the net
proceeds to acquire or invest in
other complementary businesses or
technologies. See "Use of
Proceeds" for a more detailed
description of the possible use
of
the net proceeds from this
offering.
Proposed Nasdaq National Market symbol.... REVU
The number of shares to be outstanding after this offering is based on:
- 15,299,215 shares of common stock outstanding as of October 31, 2000.
- 5,090,713 shares of common stock to be issued upon automatic conversion of 3,748,548 shares of preferred stock outstanding as of
October 31, 2000 upon completion of this offering, assuming an initial public offering price of $12.00 per share, the midpoint of the
price range set forth on the cover page of this prospectus. If, however, the initial public offering price of the shares sold in this offering
is above $12.99 per share, the outstanding preferred stock will convert into 3,602,566 shares of common stock upon completion of this
offering. For a description of the conversion rights of our outstanding preferred stock, see "Description of Capital Stock -- Preferred
Stock."
- 5,400,000 shares of common stock being offered in this offering.
The above information excludes:
- 1,437,364 shares of common stock underlying options granted under our stock incentive plan and outstanding as of October 31, 2000
at a weighted average exercise price of $6.87 per share;
- 394,963 additional shares of common stock reserved for future issuance under our stock incentive plan as of October 31, 2000;
- 846,000 additional shares of common stock that will be reserved for future issuance under our stock incentive plan upon the
2002. EDGAR Online, Inc.
completion of this offering; and
- assuming an initial public offering price of $12.00 per share, up to 100,000 shares of common stock issuable under warrants
outstanding as of October 31, 2000, with an exercise price equal to the initial public offering price of our common stock in this
offering.
4
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Unless we indicate otherwise, all information in this prospectus assumes the following:
- an .846-for-one reverse stock split of our common stock effected on November 16, 2000 (all share and per share amounts of our
common stock have been retroactively adjusted to reflect the stock split);
- no exercise by the underwriters of their over-allotment option to purchase up to 810,000 additional shares of common stock;
- the automatic conversion of all outstanding preferred stock into 5,090,713 shares of common stock immediately prior to the
completion of this offering;
- the automatic conversion, on a one-for-one basis, of our shares of Class B non-voting common stock and our shares of Class A
common stock into shares of common stock concurrently with the completion of this offering; and
- amendments to our certificate of incorporation and by-laws to be effective upon completion of this offering.
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SUMMARY CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following tables present:
- our summary historical consolidated financial data as of September 30, 2000 and for the years ended December 31, 1997, 1998 and
1999 and for the nine months ended September 30, 1999 and 2000;
- our summary unaudited pro forma consolidated financial data as of September 30, 2000 and for the year ended December 31, 1999
and for the nine months ended September 30, 2000, giving effect to our proposed acquisition of Princeton Review of Boston and
Princeton Review of New Jersey as described in "Our Franchised Operations and Our Plans to Acquire Our Domestic Franchises --
Option Agreement to Purchase Two of Our Independent Franchises," as if this transaction had occurred on January 1, 1999, in the case
of the unaudited pro forma statement of operations data, and September 30, 2000, in the case of the unaudited pro forma balance sheet
data; and
- our summary unaudited pro forma as adjusted consolidated financial data giving further effect to the conversion of all of our
outstanding preferred stock into 5,090,713 shares of common stock upon the completion of this offering, the conversion of our Class A
common stock and Class B non-voting common stock into common stock upon the completion of this offering and the issuance of
5,400,000 shares of common stock offered by this prospectus at an assumed initial public offering price of $12.00 per share, after
deducting underwriting discounts and commissions and estimated offering expenses payable by us.
The summary unaudited pro forma and pro forma as adjusted consolidated financial data is not necessarily indicative of the operating
results or the financial condition that would have been achieved if we had completed the acquisition of Princeton Review of Boston
and Princeton Review of New Jersey as of the dates indicated and should not be construed as representative of our future operating
results or financial condition. Additionally, our acquisition of Princeton Review of Boston and Princeton Review of New Jersey is
subject to a number of conditions, including the fulfillment or waiver of the conditions to closing included in the option agreement and
other documentation relating to the acquisition. We cannot assure you that these conditions will be fulfilled or that this acquisition will
be completed. We are not required to exercise the option and purchase these franchises. We may decide to delay this acquisition or
abandon it altogether.
The financial data as of September 30, 2000 and for the nine months ended September 30, 1999 and 2000 is derived from our
unaudited consolidated financial statements included elsewhere in this prospectus. In the opinion of our management, these unaudited
consolidated financial statements were prepared by us on a basis consistent with our annual audited consolidated financial statements
and include all adjustments, consisting only of normal recurring adjustments, necessary for a fair statement of our financial position
2002. EDGAR Online, Inc.
and results of operations for these unaudited periods. The summary historical and unaudited pro forma consolidated financial data is
qualified by reference to and should be read in conjunction with the financial statements and related notes, "Unaudited Pro Forma
Consolidated Financial Data" and "Management's Discussion and Analysis of Financial Condition and Results of Operations,"
included elsewhere in this prospectus. We have calculated the weighted average shares used in computing net income (loss) per share
as described in Note 1 to our consolidated financial statements.
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YEARS ENDED DECEMBER 31, NINE MONTHS ENDED SEPTEMBER 30,
----------------------------------------- ---------------------------------------
1999 2000
1997 1998 1999 PRO FORMA 1999 2000 PRO FORMA
------- ------- ------- ----------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Revenue........................ $32,514 $33,746 $40,302 $49,246 $30,672 $34,154 $ 42,431
Gross profit................... 19,222 21,846 27,132 32,518 21,716 23,812 29,303
Operating income (loss) from
continuing operations........ 290 (1,358) (2,561) (901) 2,450 (17,036) (14,527)
Income (loss) from continuing
operations before (provision)
benefit for income taxes..... 269 (1,200) (2,095) (1,327) 1,935 (9,534) (7,698)
Net income (loss).............. $(2,043) $ 2,109 $(2,044) $(1,294) $ 1,876 $(3,002) $ (1,210)
Net income (loss) per share --
basic and diluted............ $ (0.20) $ 0.20 $ (0.20) $ (0.12) $ 0.18 $ (0.22) $ (0.09)
Weighted average basic and
diluted shares used in
computing net income (loss)
per share.................... 10,404 10,404 10,404 10,404 10,404 13,667 13,667
AS OF SEPTEMBER 30, 2000
---------------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
----------- ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
BALANCE SHEET DATA:
Cash and cash equivalents................................... $11,586 $ 9,951 $ 68,115
Working capital............................................. 11,203 8,145 65,270
Total assets................................................ 47,743 58,550 115,675
Long-term debt, net of current portion...................... 682 10,057 10,057
Series A redeemable convertible preferred stock............. 27,869 27,869 --
Class B redeemable non-voting common stock.................. 6,989 6,989 --
Stockholders' equity (deficit).............................. (4,641) (4,641) 87,342
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RISK FACTORS
You should carefully consider the following risk factors and all other information contained in this prospectus before purchasing our
common stock. Investing in our common stock involves a high degree of risk. Any of the following risks could harm our business,
financial condition and results of operations and could result in a complete loss of your investment.
RISKS RELATED TO OUR BUSINESS
OUR BUSINESS IS DIFFICULT TO EVALUATE BECAUSE WE HAVE A LIMITED OPERATING HISTORY WITH
SEVERAL OF OUR KEY PRODUCTS OVER THE INTERNET.
Our Internet-based, or Princeton Review Online, test preparation courses were launched in July 2000, and we began selling our
Homeroom.com subscription service in August 2000. These operations have not generated significant revenue to date. Consequently,
there is limited operating history on which you can base your evaluation of the business and prospects of these operations.
WE HAVE A HISTORY OF SIGNIFICANT OPERATING LOSSES AND EXPECT TO INCUR SIGNIFICANT LOSSES
FOR THE FORESEEABLE FUTURE.
2002. EDGAR Online, Inc.
We expect to incur operating losses and experience negative cash flow for the foreseeable future. We have significantly increased our
operating expenses in recent periods in order to grow our existing Internet operations through our Review.com Web site and expand
into new lines of Internet-based businesses with our Homeroom.com subscription service and our Princeton Review Online products.
As a result, we have incurred significant losses in these periods. As of September 30, 2000, we had an accumulated deficit of
approximately $7.2 million. We incurred a net loss of approximately $2.0 million for the year ended December 31, 1999 and
approximately $3.0 million for the nine months ended September 30, 2000. We anticipate our losses will also increase significantly
from current levels as we incur additional costs and expenses related to:
- continued development and expansion of our Internet-based offerings;
- advertising, marketing and promotional activities;
- hiring additional personnel in sales, marketing, Internet systems, product development and other areas; and
- the acquisition of Princeton Review of Boston and Princeton Review of New Jersey and the acquisition of the operations of any of
our other franchisees with whom we are able to reach agreement on favorable terms.
IF WE ARE UNABLE TO SUBSTANTIALLY INCREASE OUR REVENUE FROM OUR INTERNET OPERATIONS, OUR
GROWTH WILL SUFFER.
If we are unable to substantially increase our revenue from our Internet businesses, we will be unable to execute our current business
plan and our operating results may be adversely affected. In order to grow as currently contemplated, we will need to derive an
increasing portion of our revenue from our Internet-based businesses, including Review.com, Homeroom.com and Princeton Review
Online. We have limited experience with generating revenue from Internet-based businesses and their results are largely uncertain. In
order to increase revenue from these sources we must, among other things, successfully:
- attract a large number of students, parents and educators to our Web sites;
- continue to grow our revenue from educational institutions subscribing to our Review.com application services;
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- achieve market acceptance by students, parents and educators of our Homeroom.com Web-based subscription service;
- achieve market acceptance of our Princeton Review Online courses, while maintaining growth in our classroom-based courses;
- grow the subscriber base of Homeroom.com while increasing subscription fees and renewal rates; and
- increase sponsorships and banner advertisement sales.
We may be unable to achieve these objectives. In addition, our ability to grow the subscriber base of Homeroom.com is dependent, in
part, on the success of our distribution relationship with bigchalk.com. If bigchalk.com is not successful in distributing
Homeroom.com to K-12 educational institutions, our growth and revenue could suffer.
IF COLLEGES AND UNIVERSITIES REDUCE THEIR RELIANCE ON STANDARDIZED ADMISSIONS TESTS OR STATES
REDUCE THEIR USE OF MANDATED ASSESSMENTS, OUR BUSINESS WILL BE MATERIALLY ADVERSELY
AFFECTED.
The success of our test preparation and Homeroom.com businesses depends on the continued use of standardized tests. If the use of
standardized tests declines or falls out of favor with educational institutions or state and local governments, the markets for many of
our products and services will deteriorate and our business will be materially adversely affected.
WE FACE INTENSE COMPETITION THAT COULD ADVERSELY AFFECT OUR REVENUE, PROFITABILITY AND
MARKET SHARE.
The markets for our products and services are highly competitive, and we expect increased competition in the future that could
adversely affect our revenue and market share. Barriers to entry into our Internet-based markets are relatively low, and existing and
new competitors could potentially offer competitively priced services and products similar or superior to ours. Our current competitors
2002. EDGAR Online, Inc.
include but are not limited to:
- providers of online and offline test preparation, admissions assistance and career counseling to prospective higher education students,
with our primary national competitor in this area being Kaplan, Inc.;
- companies that provide prospective students with Internet-based information about higher education institutions as well as companies
that provide these institutions with access to the student market;
- companies that provide K-12 oriented software and Internet-based educational assessment and remediation products and services to
students, parents, educators and educational institutions;
- traditional print media companies that publish books and magazines about standardized test preparation and college and graduate
schools and offer admissions information and services to students and educational institutions; and
- non-profit and membership educational organizations that offer both face-to-face and Internet-based products and services to assist
individuals and educational organizations with counseling, marketing and student applications.
Some of our competitors may have more resources than we do. Our competitors may be able to respond more quickly than we can to
new technologies or changes in Internet user preferences and devote greater resources than we can to the development, promotion and
sale of their services. We may not be able to maintain our competitive position against current or future competitors, especially those
with significantly greater resources.
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NEGATIVE DEVELOPMENTS IN SCHOOL FUNDING COULD REDUCE OUR INSTITUTIONAL REVENUE.
We expect to derive a growing portion of our revenue from sales of our products and services to educational institutions, including
subscriptions to Homeroom.com and our admissions counseling services. Our ability to generate revenue from these sources may be
adversely affected by decreased government funding of education. Public school funding is heavily dependent on support from federal,
state and local governments and is sensitive to government budgets. In addition, the government appropriations process is often slow
and unpredictable. Funding difficulties also could cause schools to be more resistant to price increases in our products, compared to
other businesses that might be better able to pass on price increases to their customers.
OUR BUSINESS IS SUBJECT TO SEASONAL FLUCTUATIONS, WHICH MAY CAUSE OUR OPERATING RESULTS TO
FLUCTUATE FROM QUARTER TO QUARTER. THIS MAY RESULT IN VOLATILITY OR ADVERSELY AFFECT OUR
STOCK PRICE.
We experience, and we expect to continue to experience, seasonal fluctuations in our revenue because the markets in which we operate
are subject to seasonal fluctuations based on the scheduled dates for standardized admissions tests and the typical school year. These
fluctuations could result in volatility or adversely affect our stock price. In addition, as our revenue grows, these seasonal fluctuations
may become more evident. We typically generate the largest portion of our test preparation revenue in the third quarter. Since
Homeroom.com's Internet-based subscription service has not yet generated significant revenue, it is difficult for us to predict the
impact of seasonal factors on this business.
OUR QUARTERLY REVENUE AND OPERATING RESULTS ARE NOT INDICATIVE OF FUTURE PERFORMANCE
AND ARE DIFFICULT TO FORECAST.
Our quarterly revenue and operating results may not meet expectations of public market analysts or investors, which could cause our
stock price to decline. In addition to the seasonal fluctuations described above, our revenue, expenses and operating results may vary
from quarter to quarter in response to a variety of other factors beyond our control, including:
- our customers' spending patterns;
- the timing of school districts' funding sources and budget cycles;
- the timing of expirations and renewals of educational institution subscriptions;
- the timing of corporate sponsorships and advertising; and
2002. EDGAR Online, Inc.
- non-recurring charges incurred in connection with acquisitions or other extraordinary transactions.
Due to these factors, we believe that quarter-to-quarter comparisons of our operating results may not be indicative of our future
performance and you should not rely on them to predict the future performance of our stock price. In addition, our past results may not
be indicative of future performance because of our new businesses.
WE ARE HEAVILY DEPENDENT ON OUR RELATIONSHIPS WITH MCGRAW-HILL AND RANDOM HOUSE, AND
TERMINATION OR INTERRUPTION OF THESE RELATIONSHIPS COULD SIGNIFICANTLY REDUCE OUR REVENUE.
Any termination of, or difficulties with, our relationships with McGraw-Hill or Random House could significantly reduce our revenue.
We derive significant revenue from our services rendered to McGraw-Hill. These services consist of developing content for their K-12
textbooks and workbooks and other ancillary services. Revenue from McGraw-Hill represented approximately 12% of our revenue in
1999 and 3% of our revenue in 1998. During 1999 and 1998, revenue from McGraw-Hill represented 100% of the revenue reported in
our Homeroom.com division. We rely on Random House as the publisher and distributor of all of the books we write. Royalties and
other fees from books authored by us and published and distributed by Random House represented approximately
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7% of our revenue in 1999 and 9% of our revenue in 1998. Revenue from Random House represented approximately 51% of the
revenue reported in our Review.com division in 1999 and 65% of the revenue reported in that division in 1998.
IF WE ARE NOT ABLE TO CONTINUALLY ENHANCE OUR INTERNET PRODUCTS AND SERVICES AND ADAPT THEM
TO CHANGES IN TECHNOLOGY, OUR FUTURE REVENUE GROWTH COULD BE ADVERSELY AFFECTED.
If our improvement and adaptation of our Web sites and their related technology is delayed, results in systems interruptions or is not
aligned with market expectations or preferences, our revenue growth could be adversely affected. The Internet is a rapidly evolving
environment, and the technology used in Internet-related products changes rapidly. As Internet-based industries continue to experience
rapid technological changes, we must quickly modify our solutions to adapt to emerging Internet standards and practices, technological
advances, and changing user and sponsor preferences. Ongoing enhancement of our Web sites and related technology will entail
significant expense and technical risk. We may use new technologies ineffectively or fail to adapt our Web sites and related
technology on a timely and cost-effective basis.
IF WE FAIL TO RENEW OUR SUBSCRIPTION AGREEMENTS WITH HIGHER EDUCATION INSTITUTIONS, WE
COULD EXPERIENCE A DECLINE IN REVENUE.
The term of our Review.com subscription agreements with higher education institutions is typically one year. If we fail to continually
renew these agreements, we may experience unanticipated declines in revenue. A decrease in revenue could cause variations in
operating results from quarter to quarter and could adversely affect our stock price.
IF WE ARE UNABLE TO RENEW OUR AGREEMENTS WITH OUR FRANCHISEES, OR IF OUR FRANCHISEES CONTEST
OUR INTERPRETATION OF THOSE AGREEMENTS, OUR ABILITY TO OFFER OUR PRODUCTS IN OUR FRANCHISEES'
TERRITORIES COULD BE ADVERSELY AFFECTED, WHICH COULD ADVERSELY AFFECT OUR REVENUE.
If we are unable to renew our agreements with our franchisees on favorable terms, or if any of our franchisees contest our
interpretation of our rights and obligations under these agreements, then our ability to deliver our products and services within our
franchisees' territories could be hindered, and our revenue could be adversely affected. Through a series of franchise agreements and
other agreements, our independent franchisees have various rights to provide test preparation products and services under The
Princeton Review brand within specified territories, and to use our trademarks and other intellectual property in connection with
providing these services. Similarly, we have various rights to market and sell our products and services in the franchisees' territories.
Our agreements have been reviewed and renegotiated to accommodate our business goals and the goals of our franchisees as they have
both developed over the years. The majority of our franchise agreements expire on December 31, 2005, and our agreements governing
the royalty payment terms applicable when we offer our Princeton Review Online products to customers in franchisee territories expire
on December 31, 2002.
WE EXPECT TO INCREASE OUR RELIANCE ON RELATIONSHIPS WITH THIRD PARTY WEB SITES TO ATTRACT
VISITORS TO OUR WEB SITES. THESE RELATIONSHIPS MAY NOT DEVELOP, MAY TERMINATE OR MAY NOT
PRODUCE A SIGNIFICANT NUMBER OF VISITORS, WHICH COULD ADVERSELY AFFECT OUR BUSINESS AND OUR
ABILITY TO INCREASE OUR REVENUE.
2002. EDGAR Online, Inc.
As we expand our Internet-based businesses, we expect to increase our reliance on contractual relationships with third party Web sites
to attract a portion of the user traffic on our Web sites. These relationships may not develop, may terminate or may not produce a
significant number of visitors, which could adversely affect our business and our ability to increase our revenue. We have entered into
agreements with Student Advantage, Inc., Microsoft Corporation, Bolt, Inc. and the providers of other third party Web sites to either
redirect their users to our Web sites or to display our branded content and tools in order to drive co-registration on our Web sites. In
order to attract
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traffic to our Web sites, we will need to enter into additional similar relationships. There can be no assurance that we will be able to
maintain and modify, if necessary, any existing agreements or enter into new agreements on economically acceptable terms. Our
failure to maintain existing relationships, establish additional relationships or fully capitalize on these relationships could reduce, or
prevent us from increasing, the number of visitors to our Web sites, which could make it more difficult for us to market our products,
attract corporate sponsors and generate subscription, transaction and e-commerce revenue.
IF WE DO NOT ADEQUATELY PROTECT THE INTELLECTUAL PROPERTY RIGHTS TO OUR PRODUCTS AND
SERVICES, WE MAY LOSE THESE RIGHTS AND OUR BUSINESS MAY SUFFER MATERIALLY.
Failure to protect our intellectual property could materially adversely affect our business. We depend on our ability to protect our
brand, our products and services and the systems that deliver those products and services to our customers. We rely on a combination
of copyright, trademark and trade secret laws, as well as confidentiality agreements and licensing arrangements, to protect these
products. These intellectual property rights distinguish our products and services from those of our competitors. If others are able to
copy, use and market these products and delivery systems, then we may not be able to maintain our competitive position. Despite our
best efforts, we cannot assure you that our intellectual property rights will not be infringed, violated or legally imitated. Existing laws
do not provide complete protection and policing the unauthorized use of our products and services requires significant resources.
THE ABSENCE OF AN UNOPPOSED FEDERAL REGISTRATION OF OUR "THE PRINCETON REVIEW" SERVICE MARK
AND TRADEMARK MAY MAKE IT MORE DIFFICULT AND EXPENSIVE FOR US TO PREVENT OTHERS FROM USING
THE MARK AND COULD OTHERWISE SIGNIFICANTLY HARM OUR BUSINESS.
We have used "The Princeton Review" as our principal service mark since 1982. Although we have registered the mark, our
application for registration was opposed by Princeton University, and the validity of our registration is uncertain. No one, including
Princeton University, has objected to our use, as distinguished from federal registration, of "The Princeton Review" as a service mark
during the 18 years we have used it. The absence of an unopposed federal registration of our mark, however, may make the
enforcement of our exclusive right to use the mark against possible future infringers more difficult and costly. In addition, if we are
unable to prevent a competitor or another business from using "The Princeton Review" or similar marks, then we could lose customers
or suffer a dilution of the prominence of our principal mark. It is also possible that Princeton University could object to our continued
use of the mark. Litigation involving our rights to "The Princeton Review" marks could be costly, and we cannot predict with any
certainty its outcome. Moreover, if we were prevented from using "The Princeton Review" as our service mark or trademark and
licensing the mark to our franchisees, our business would be significantly harmed.
IF OUR PRODUCTS AND SERVICES INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, THIS MAY
RESULT IN COSTLY LITIGATION OR THE LOSS OF OUR OWN INTELLECTUAL PROPERTY RIGHTS, WHICH COULD
MATERIALLY ADVERSELY AFFECT OUR BUSINESS.
Competitors and others may claim that we have infringed their current or future intellectual property rights. The defense of any
lawsuit, whether with or without merit, could be time-consuming and costly. If a lawsuit against us is successful, we may lose, or be
limited in, the rights to offer our products and services. Any proceedings or claims of this type could materially adversely affect our
business.
WE MAY BE HELD LIABLE FOR THE CONTENT OF MATERIALS THAT WE AUTHOR, CONTENT AVAILABLE ON
OUR WEB SITES OR PRODUCTS SOLD THROUGH OUR WEB SITES.
We may be subject to claims for defamation, negligence, copyright or trademark infringement or other legal theories based on the
content of materials that we author, and content that is
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published on or downloaded from our Web sites, accessible from our Web sites through links to other Web sites or posted by our users
2002. EDGAR Online, Inc.
in chat rooms or bulletin boards. These types of claims have been brought, sometimes successfully, against online services as well as
print publications in the past. Although we carry general liability insurance, our insurance may not cover potential claims of this type,
such as trademark infringement or defamation, or may not be adequate to cover all costs incurred in defense of potential claims or to
indemnify us for all liability that may be imposed. In addition, these claims, with or without merit, would result in diversion of our
management personnel and financial resources. Further, if print publications that we author contain material that customers find
objectionable, these publications may have to be recalled, which could result in lost revenue and adverse publicity.
THE LOSS OF OUR SENIOR MANAGEMENT COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS.
We depend on the continued service of our senior management. The loss of any of our senior management could materially adversely
affect our future operating results. In particular, the loss of the services of John Katzman, our founder, Chairman and Chief Executive
Officer, could materially adversely affect our business.
IF WE FAIL TO ATTRACT AND RETAIN QUALIFIED PERSONNEL IN A COMPETITIVE LABOR MARKET, OUR
BUSINESS COULD BE HARMED.
Our success depends on the employment of skilled management, technology, sales and marketing and product development personnel.
We must attract, retain and motivate highly skilled employees. We face significant competition for individuals with the skills required
to develop, market and support our products and services, especially those that are technology-based. If we fail to recruit and retain
sufficient numbers of these highly skilled employees, our business could be harmed.
OUR BUSINESS MAY BE HARMED BY ACTIONS TAKEN BY OUR FRANCHISEES THAT ARE OUTSIDE OUR
CONTROL.
Approximately 14% of our 1999 revenue and approximately 16% of our revenue for the first nine months of 2000 was derived from
royalties paid to us by independent businesses that operate under franchise agreements with us, including Princeton Review of Boston
and Princeton Review of New Jersey, and from sales of our course and marketing materials to these franchisees. The quality of
franchised test preparation operations may be diminished if our franchisees do not successfully provide test preparation services in a
manner consistent with our standards and requirements, or do not hire and train qualified managers or instructors. As a result, our
image and reputation may suffer and our revenue could decline.
FEDERAL AND STATE FRANCHISE REGULATION COULD LIMIT OUR ABILITY TO TERMINATE OR REPLACE
UNPRODUCTIVE FRANCHISES, WHICH COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS, AND
FRANCHISE REGULATION COULD MAKE IT MORE DIFFICULT FOR US TO EXPAND INTERNATIONALLY THROUGH
FRANCHISING.
Applicable laws may delay or prevent us from terminating an unproductive franchise or withholding consent to renewal or transfer of a
franchise, which could have an adverse effect on franchise royalties. We are subject to both federal and state laws regulating the offer
and sale of franchises. These laws also frequently apply substantive standards to the relationship between franchisor and franchisee
and limit the ability of a franchisor to terminate or refuse to renew a franchise. In addition, some foreign countries have laws affecting
the offer and sale of franchises within their borders and to their citizens and U.S. federal and state franchise regulation may be
applicable to our efforts to establish franchises abroad. Failure to comply with these laws could limit or preclude our ability to expand
internationally through franchising. Compliance with federal, state and international franchise laws can be costly and time consuming,
and we cannot assure you that we will not encounter delays, expenses or other difficulties in this area. Further, the nature and effect of
any future legislation or regulation of our franchise operations cannot be predicted.
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OUR CORPORATE STRUCTURE MAY LIMIT OUR ACCESS TO THE CASH FLOW OF OUR OPERATING
SUBSIDIARIES.
We conduct our business through our subsidiaries. Accordingly, we have no cash flow other than from dividends and other
distributions from these subsidiaries. Our right to any distribution of earnings or assets is subject to the prior claims of the creditors of
these subsidiaries.
IF WE NEED BUT ARE UNABLE TO OBTAIN ADDITIONAL CAPITAL TO EXPAND OUR OPERATIONS AND
INVEST IN NEW PRODUCTS AND SERVICES, OUR BUSINESS MAY BE ADVERSELY AFFECTED.
The growth of our business requires substantial capital expenditures. Without the net proceeds of this offering, our capital resources
2002. EDGAR Online, Inc.
will not be sufficient to meet our expected needs for working capital and capital expenditures for the next 12 months. Therefore, if this
offering is not completed, we will need to access other sources of financing to meet our needs. We expect that the net proceeds from
this offering, together with currently available funds, will be sufficient to meet our working capital and capital expenditure needs for at
least the next 24 months. However, in the future we may require substantial additional capital to finance ongoing operations and future
growth. To the extent that our existing sources of liquidity and cash flow from operations are insufficient to fund our activities, we may
need to raise additional funds. We cannot be certain that we will be able to obtain additional financing on favorable terms. If we fail to
raise additional funds, we may need to sell debt or additional equity securities or to reduce our growth to a level that can be supported
by our cash flow. Without additional capital, we may not be able to:
- further develop or enhance our services and products;
- acquire necessary technologies, products or businesses;
- expand operations in the United States or internationally;
- hire, train and retain employees;
- market our services and products; or
- respond to competitive pressures or unanticipated capital requirements.
WE MAY ENGAGE IN ACQUISITIONS THAT COULD DILUTE THE EQUITY INTEREST OF OUR STOCKHOLDERS,
INCREASE OUR DEBT OR CAUSE US TO ASSUME CONTINGENT LIABILITIES, ALL OF WHICH MAY HAVE A
DETRIMENTAL EFFECT ON THE PRICE OF OUR COMMON STOCK. IF ANY ACQUISITIONS ARE NOT SUCCESSFULLY
INTEGRATED WITH OUR BUSINESS, OUR ONGOING OPERATIONS COULD BE NEGATIVELY AFFECTED.
We have entered into an option agreement to purchase Princeton Review of Boston and Princeton Review of New Jersey and, in
addition to the acquisition of these franchises, we may acquire our other franchises and other businesses, products or technologies in
the future. To facilitate future acquisitions, we may take actions that could have a detrimental effect on our results of operations or the
price of our common stock, including:
- issuing equity securities or convertible debt securities, which would dilute current stockholders' percentage ownership;
- incurring substantial debt; or
- assuming contingent liabilities.
Acquisitions also entail numerous business risks, including:
- difficulties in assimilating acquired operations, technologies or products;
- unanticipated costs that could materially adversely affect our results of operations;
- negative effects on our reported results of operations from acquisition related charges and amortization of acquired technology and
other intangibles;
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- diversion of management's attention from other business concerns;
- adverse effects on existing business relationships with suppliers and customers;
- risks of entering markets in which we have no or limited prior experience; and
- the potential inability to retain and motivate key employees of acquired businesses.
IF WE COMPLETE THE PROPOSED ACQUISITION OF PRINCETON REVIEW OF BOSTON AND PRINCETON REVIEW OF
NEW JERSEY, THE AMORTIZATION EXPENSE AND INTEREST EXPENSE THAT WILL BE INCURRED IN CONNECTION
WITH THIS ACQUISITION WILL NEGATIVELY AFFECT OUR RESULTS OF OPERATIONS.
2002. EDGAR Online, Inc.
If we complete the proposed acquisition of Princeton Review of Boston and Princeton Review of New Jersey, we will have to record
approximately $12.0 million of goodwill which will be amortized over 15 years. This will increase our net loss or decrease our net
income by approximately $802,000 in each of 2001 through 2015. Additionally, if we complete this acquisition, we will incur
indebtedness to the sellers of these businesses in the form of a promissory note for approximately $3.1 million, bearing interest at
8.25% per year. We would also seek to obtain approximately an additional $6.3 million of bank debt at the best commercially
available rate of interest to finance a portion of the acquisition price. Interest expense associated with this indebtedness would also
increase our net loss or reduce our earnings. For a description of the terms of the proposed promissory note to the current owners of
Princeton Review of Boston and Princeton Review of New Jersey, please see "Our Franchised Operations and Our Plans to Acquire
our Domestic Franchises -- Option Agreement to Purchase Two of Our Independent Franchises."
OUR GROWTH STRATEGY WILL STRAIN OUR RESOURCES, AND IF WE FAIL TO MANAGE OUR GROWTH, OUR
ABILITY TO OPERATE OUR BUSINESS MAY BE HARMED.
Our failure to effectively manage our growth could disrupt our operations and ultimately prevent us from generating the revenue we
expect. We expect that significant expansion of our operations will be required to successfully implement our business strategy. For
example, the expansion of our Internet businesses continues to require increased development efforts, sales, marketing and promotion
expenditures. This expansion will place significant demands on our management, and strain our operational, financial and
technological resources, as well as our Web sites and services infrastructure.
WE COULD BE LIABLE FOR EVENTS THAT OCCUR AT OUR TEST PREPARATION FACILITIES, AND A LIABILITY
CLAIM AGAINST US COULD AVERSELY AFFECT OUR REPUTATION AND OUR FINANCIAL RESULTS.
We could become liable for the actions of instructors and other personnel at the facilities we use to provide our classroom-based test
preparation courses. In the event of on-site accidents, injuries or other harm to students, we could face claims alleging that we were
negligent, provided inadequate supervision or were otherwise liable for the injuries. Although we maintain liability insurance, this
insurance coverage may not be adequate to protect us fully from these claims. In addition, we may not be able to obtain liability
insurance in the future at reasonable prices or at all. A successful liability claim could adversely affect our reputation and our financial
results. Even if unsuccessful, such a claim could cause unfavorable publicity, entail substantial expense and divert the time and
attention of key management personnel.
RISKS RELATED TO THE INTERNET INDUSTRY
IF THE USE OF THE INTERNET DOES NOT GROW AS ANTICIPATED, OUR REVENUE COULD DECLINE AND
OUR BUSINESS WOULD BE HARMED.
We depend, in part, on the increased acceptance and use of the Internet by consumers and educational institutions, particularly
students, parents, colleges, universities and elementary and
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secondary schools. Rapid growth in the use of the Internet is a recent occurrence, and if the use of the Internet does not grow as
anticipated, our revenue could decline and our business would be harmed. The market for Internet-based products and services is
characterized by rapid technological change and product innovation, unpredictable product life cycles and unpredictable user
preferences. Acceptance and use of the Internet may not continue to develop at historical rates and a sufficiently broad base of
customers may not adopt or continue to use the Internet as a medium of commerce. Demand and market acceptance for recently
introduced products and services over the Internet are subject to a high level of uncertainty, and we, therefore, cannot predict whether
the market for Internet-based educational products will continue to grow.
IF WE EXPERIENCE SYSTEM FAILURES, OUR REPUTATION MAY BE HARMED AND USERS MAY SEEK
ALTERNATE SERVICE PROVIDERS CAUSING US TO LOSE REVENUE.
If our computer systems were to fail or be disrupted, our services could be interrupted and we may lose revenue and future business.
We depend on the efficient and uninterrupted operation of our computer and communications hardware and software systems. These
systems and operations are vulnerable to damage or interruption from floods, fires and power loss and similar events, as well as
computer viruses, break-ins, sabotage, intentional acts of vandalism and other misconduct and disruptions or delays occurring
throughout the Internet network infrastructure. Substantially all of the computer hardware for operating our Web sites is currently
located at a third party hosting facility. Accordingly, our Internet operations are also dependent on this third party's ability to maintain
its systems in effective working order and to protect them from disruptive events. We do not have a formal disaster recovery plan, and
2002. EDGAR Online, Inc.
our insurance policies may not adequately compensate us for any losses that may occur due to failures of or interruptions in our
systems.
In addition, the system failures of third party Internet service providers, online service providers and other Web site operators could
produce interruptions in our service for those users who access our services through these third party providers. Service interruptions
could reduce our revenue and our future revenue will be harmed if our users believe that our system is unreliable.
IF OUR COMPUTER SYSTEMS ARE UNABLE TO ACCOMMODATE A HIGH VOLUME OF TRAFFIC ON OUR WEB
SITES, THE GROWTH OF OUR REVENUE COULD BE REDUCED OR LIMITED.
If the volume of traffic on our Web sites increases beyond our capacity, customers may experience delays and interruptions in service.
As a result, they may seek the products and services of our competitors and the growth of our revenue could be reduced or limited.
Because we seek to generate a high volume of traffic and accommodate a large number of customers on our Web sites, the satisfactory
performance, reliability and availability of our Web sites, processing systems and network infrastructure are critical to our reputation
and our ability to serve our customers. If the volume of traffic on our Web sites continues to increase, we will need to expand and
upgrade our technology, transaction processing systems and network infrastructure. Our Web sites have in the past and may in the
future experience slower response times due to increased traffic.
FUTURE REGULATIONS PERTAINING TO THE INTERNET COULD DECREASE THE DEMAND FOR OUR
PRODUCTS OR INCREASE THE COST OF DOING BUSINESS.
Any new law or regulation pertaining to the Internet, or the application or interpretation of existing laws, could increase our cost of
doing business, decrease the demand for our products and services, or otherwise harm our business. Future laws or regulations may
relate to information retrieved from or transmitted over the Internet, consumer protection, online content, user privacy, taxation and the
quality of products and services. Compliance with future laws and regulations could be expensive, time consuming, impractical or
impossible.
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WE MAY BE LIABLE FOR INVASION OF PRIVACY OR MISAPPROPRIATION BY OTHERS OF OUR USERS'
INFORMATION, WHICH COULD ADVERSELY AFFECT OUR REPUTATION AND FINANCIAL RESULTS.
Some of our services require the disclosure of sensitive information by the user. We rely on a number of security systems for our
services to protect this information from unauthorized use or access. We cannot predict whether new technological developments
could circumvent these security measures. If the security measures that we use to protect personal information or credit card
information are ineffective, we may be subject to liability, including claims for invasion of privacy, impersonation, unauthorized
purchases with credit card information or other similar claims. In addition, the Federal Trade Commission and several states have
investigated the use of personal information by certain Internet companies. We could incur significant expenses if new regulations
regarding the use of personal information are introduced or if our privacy practices are investigated.
RISKS RELATED TO THIS OFFERING
OUR STOCK PRICE MAY BE VOLATILE, AND YOU MAY LOSE ALL OR A PART OF YOUR INVESTMENT.
The market prices of the securities of Internet-related companies have been volatile, and have experienced fluctuations that often have
been unrelated to or disproportionate to the operating performance of these companies. These broad market fluctuations could
adversely affect the market price of our stock. In addition, our stock price is likely to be volatile as a result of one or more of the
following factors, most of which are beyond our control:
- variations in our quarterly operating results;
- changes in securities analysts' estimates of our financial performance;
- loss of a major customer or failure to complete significant transactions;
- announcements by us or our competitors of significant contracts, acquisitions, strategic partnerships, joint ventures or capital
commitments;
- changes in market valuations of similar companies;
2002. EDGAR Online, Inc.
- the discussion of our company or stock price in online investor communities such as chat rooms;
- additions or departures of key personnel; and
- fluctuations in stock market price and volume.
In the past, securities class action lawsuits alleging fraud have often been filed against a company following periods of volatility in the
market price of its securities. In the future, we may be the target of similar lawsuits. If a lawsuit were to be filed against us, it could
result in substantial costs and the diversion of our management's attention and resources, which could seriously harm our financial
results or result in a decline in the market price of our common stock. Declines in the market price of our common stock could also
harm employee morale and retention, our ability to attract qualified employees and our access to capital.
THE SUBSTANTIAL NUMBER OF SHARES THAT WILL BE ELIGIBLE FOR SALE IN THE NEAR FUTURE COULD
CAUSE THE MARKET PRICE FOR OUR COMMON STOCK TO DECLINE.
Sales of substantial amounts of shares of our common stock in the public market following this offering, or the perception that those
sales will occur, could cause the market price of our common stock to decline. Those sales also might make it more difficult for us to
sell equity securities in the future at a time and at a price that we deem appropriate because investors could purchase shares in the
public market instead of directly from us.
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Upon completion of this offering, we will have outstanding an aggregate of 25,789,928 shares of common stock, assuming no exercise
of the underwriters' over-allotment option and no exercise of outstanding options or warrants. Of these shares, all of the shares sold in
this offering will be freely tradeable without restriction or further registration under the Securities Act, unless these shares are
purchased by "affiliates" as that term is defined in Rule 144 promulgated under the Securities Act. The remaining 20,389,928 shares of
common stock held by existing stockholders are restricted securities. Restricted securities may be sold in the public market only if
registered or if they qualify for an exemption from registration described below under Rules 144,
144(k) or 701 promulgated under the Securities Act. Substantially all of our stockholders including all of our executive officers and
directors, have agreed that they will not, without the prior written consent of Chase Securities Inc., offer, sell or otherwise dispose of
any shares of common stock, options or warrants to acquire shares of common stock or securities exchangeable for or convertible into
shares of common stock owned by them during the 180-day period following the date of this prospectus.
As a result of the contractual restrictions described above and the provisions of Rules 144, 144(k) and 701 described under "Shares
Eligible for Future Sale," all 20,389,928 restricted shares will be available for sale in the public market upon the expiration of the
lock-up agreements described above, 180 days after the date of this prospectus, subject, in some cases, to volume limitations.
A large number of the holders of our common stock also have demand and piggyback registration rights enabling them to register their
shares for sale under the Securities Act. For more detailed information, see "Shares Eligible for Future Sale."
YOU WILL EXPERIENCE IMMEDIATE AND SUBSTANTIAL DILUTION IN THE NET TANGIBLE BOOK VALUE OF
YOUR SHARES.
The initial public offering price is substantially higher than the net tangible book value per share of our common stock. You will,
therefore, incur immediate dilution of $8.76 in pro forma net tangible book value per share of common stock from the price you pay
for our common stock, based on an assumed public offering price of $12.00 per share. You will incur additional dilution upon the
exercise of outstanding stock options, which have been granted with exercise prices significantly below the initial public offering price
in this offering, or if the underwriters exercise their over-allotment option. For more detailed information, see "Dilution."
BECAUSE OUR SECURITIES HAVE NO PRIOR PUBLIC MARKET, THE LIQUIDITY OF OUR COMMON STOCK IS
UNCERTAIN, AND YOU MAY NOT BE ABLE TO RESELL YOUR SHARES AT OR ABOVE THE PRICE YOU PAID.
There has not been a public market for our common stock. As a result, the initial public offering price was determined by negotiations
among the underwriters and us, and may not be indicative of prices that will prevail in the public trading markets. We also cannot
predict the extent to which a trading market for our common stock will develop or how liquid that market will be. You may not be able
to resell your shares at or above the initial public offering price. See "Underwriting" for a discussion of the factors considered in
determining the initial public offering price.
2002. EDGAR Online, Inc.
WE HAVE ANTI-TAKEOVER PROTECTIONS, WHICH MAY DISCOURAGE OR PREVENT A TAKEOVER OF US,
EVEN IF AN ACQUISITION WOULD BE BENEFICIAL TO OUR STOCKHOLDERS.
Certain provisions of our certificate of incorporation and bylaws, as well as provisions of Delaware law, could make it more difficult
for another company to acquire us, even if a takeover would benefit our stockholders. The provisions in our corporate documents
permit us to:
- authorize the issuance of "blank check" preferred stock that could be issued by our board of directors to increase the number of
outstanding shares, making a takeover more difficult and expensive;
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23
- prohibit cumulative voting in the election of directors, which would otherwise allow less than a majority of stockholders to elect
director candidates;
- limit the ability of stockholders to call special meetings of stockholders;
- prohibit stockholder action by written consent, thereby requiring all stockholder actions to be taken at a meeting of our stockholders;
and
- establish advance notice requirements for nominations for election to the board of directors or for proposing matters that can be acted
upon by stockholders at stockholder meetings.
In addition, Section 203 of the Delaware General Corporation Law and the terms of our stock option plans may discourage, delay or
prevent a change in our control, which may depress the market price of our common stock.
OUR MANAGEMENT WILL HAVE BROAD DISCRETION IN THE USE OF THE PROCEEDS FROM THIS OFFERING
AND YOU MAY NOT AGREE WITH THESE USES.
We plan to use the net proceeds from this offering for repayment of outstanding indebtedness, capital expenditures, working capital
and other general corporate purposes. If we acquire Princeton Review of Boston and Princeton Review of New Jersey or any of the
operations of our other franchisees, we expect to use a portion of the net proceeds from this offering to consummate these acquisitions.
We may also use a portion of the net proceeds from this offering to acquire or invest in other complementary businesses or
technologies. We will have broad discretion in determining how we apply the proceeds from this offering, and stockholders may not
agree with these uses. We may not be successful in investing the proceeds from this offering in our operations or external investments
to yield a favorable return.
CONCENTRATION OF OWNERSHIP AMONG OUR EXISTING EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL
STOCKHOLDERS MAY PREVENT NEW INVESTORS FROM INFLUENCING SIGNIFICANT CORPORATE DECISIONS
AND MAY PREVENT A CHANGE OF CONTROL.
Upon completion of this offering, our present directors and executive officers, holders of more than 5% of our common stock and their
affiliates will beneficially own approximately 73.5% of our outstanding common stock. In particular, John S. Katzman, our Chief
Executive Officer, will beneficially own approximately 38% of our outstanding common stock. As a result, these stockholders, if they
act as a group, will be able to control all matters requiring stockholder approval, including the election of directors and approval of
significant corporate transactions. This control may have the effect of delaying, preventing or deterring a change in control of our
company and could deprive our stockholders of an opportunity to receive a premium for their common stock as part of any sale or
acquisition. See "Principal Stockholders" for the names and ownership of our directors, executive officers and holders of more than
5% of our common stock.
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FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements based on our current expectations, assumptions, estimates and projections about
us and our industry. We generally identify forward-looking statements in this prospectus using words such as "believe," "intend,"
"expect," "may," "could," "would," "will," "should," "plan," "project," "contemplate," "anticipate" or similar statements. These
statements are based on our beliefs as well as assumptions we made using information currently available to us. Because these
statements reflect our current views concerning future events, these forward-looking statements involve risks and uncertainties. Our
actual results could differ materially from those anticipated in these forward-looking statements as a result of many factors, as more
2002. EDGAR Online, Inc.
fully described in "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations,"
"Business" and elsewhere in this prospectus. We undertake no obligation to update publicly any forward-looking statements for any
reason, even if new information becomes available or other events occur in the future.
OUR RESTRUCTURING
Until March 31, 2000, we operated as an S corporation with four majority owned limited liability company subsidiaries. On April 1,
2000, we completed a corporate restructuring. As part of our restructuring, all stockholders of the S corporation and all minority
holders of the equity interests in our subsidiaries contributed their interests to a newly formed holding company. In exchange for these
interests, we issued to these holders a total of 12,561,986 shares of Class A common stock and 1,820,025 shares of Class B non-voting
common stock of the holding company. As a result of this restructuring, our status as an S corporation terminated. Our current
structure is that of a holding company with five wholly owned subsidiaries.
Immediately prior to our restructuring, we distributed to the stockholders of the S corporation and the minority interest holders of one
of our limited liability company subsidiaries a total of 742,876 shares of common stock of Student Advantage, Inc. held by that
subsidiary. The public market value of this stock on the date of distribution was approximately $7,429,000.
Prior to our restructuring, we maintained a Phantom Stock Unit, or PSU, Plan and a Stock Appreciation Rights, or SAR, Plan for the
benefit of our employees. In connection with our restructuring, we adopted our 2000 Stock Incentive Plan and terminated the PSU and
SAR plans. In exchange for relinquishing their interests in PSUs and SARs, the participants in these plans received a total of 917,204
shares of Class B non-voting common stock, options under our stock incentive plan exercisable for a total of 1,322,364 shares of Class
B non-voting common stock, cash payments totaling approximately $5.6 million and a total of 32,168 shares of common stock of
Student Advantage with a total public market value of approximately $168,000 on the date of distribution.
Persons who participated in various aspects of these restructuring transactions include a number of our executive officers and directors
and Random House TPR, Inc., which owned approximately 18.7% of our common stock as of October 31, 2000, without giving effect
to the conversion of our outstanding preferred stock. The interests of these parties in the restructuring transactions are further
described in this prospectus under "Related Party Transactions."
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OUR FRANCHISED OPERATIONS AND OUR PLANS TO
ACQUIRE OUR DOMESTIC FRANCHISES
OUR FRANCHISES
Our classroom-based courses and tutoring services are provided through company-operated locations and through our independent
franchisees. Our franchisees provide these test preparation courses and tutoring services under The Princeton Review brand within a
specified territory, in accordance with franchise agreements with us. In exchange, our franchisees pay us a royalty of 8% of their cash
receipts collected under The Princeton Review name. They also purchase our course and marketing materials, which they use in
conducting and promoting their classes. Royalties collected from our independent franchisees and revenue from their purchases of
materials together accounted for approximately 14% of our 1999 revenue and approximately 16% of our revenue for the nine-month
period ended September 30, 2000. As of September 30, 2000, we had 15 franchisees operating approximately 40 offices under the
Princeton Review name in the United States and approximately 13 offices abroad operated by franchisees in 10 additional countries.
Based on the royalties paid to us by our franchisees during these periods, we estimate that our domestic franchisees had cash receipts
of approximately $37.0 million in 1999 and approximately $34.0 million in the first nine months of 2000 and that our international
franchisees had cash receipts of approximately $5.0 million in 1999 and approximately $4.0 million in the first nine months of 2000.
Our international franchises are located primarily in Asia. We currently intend to expand our international presence through the sale, in
the next several years, of additional franchises in Asian markets, including India, China and the Philippines. This expansion is not
expected to result in the incurrence of material expenses, with expenses consisting primarily of insignificant up-front fees and the cost
of teacher and office training.
We are not currently offering any new domestic franchises. If we are able to negotiate favorable terms, we will seek to purchase the
businesses operated by our domestic franchisees over the next several years. As part of this strategy, we have entered into the
agreements and transactions described below. We are also in negotiations with several of our other domestic franchisees for the
purchase of their businesses. We anticipate that acquisitions of our other domestic franchisees, if consummated, would involve some
combination of cash, debt and the issuance of our common stock. To the extent we consummate acquisitions of the businesses of our
2002. EDGAR Online, Inc.
franchisees, including Princeton Review of Boston and Princeton Review of New Jersey, we expect to use the net proceeds from this
offering to fund a portion of the purchase price of these acquisitions. For a more detailed description of our expected use of the net
proceeds from this offering for these purposes, see "Use of Proceeds."
OPTION AGREEMENT TO PURCHASE TWO OF OUR INDEPENDENT FRANCHISES
On May 30, 2000, we entered into an option agreement to acquire the assets comprising the businesses of Princeton Review of Boston
and Princeton Review of New Jersey. Each of these entities provides test preparation courses under The Princeton Review name
through one or more franchise agreements with us.
Under this option agreement, we have the option to acquire the operations of Princeton Review of Boston and Princeton Review of
New Jersey for a total purchase price of approximately $12.5 million, payable in cash and a note, subject to adjustment in accordance
with the purchase agreement. If we exercise this option, we will be required to purchase the operations of both of these entities. This
option becomes effective upon the completion of this offering and remains in effect until December 31, 2000. If we exercise the
option, we must sign a definitive purchase agreement within 30 days of exercise and consummate the purchase within 90 days of
exercise. The option agreement also restricts us, subject to a number of limited exceptions, from consummating the acquisition of any
entity holding a Princeton Review franchise for Los Angeles, California,
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Denver, Colorado, Westport, Connecticut or the State of Texas, for one year from the date of the agreement, unless we complete the
acquisition contemplated by the option agreement.
If we exercise our option to purchase these operations, 75% of the purchase price will be payable in cash at the time of closing and
25% of the purchase price will be paid by delivery of a convertible five-year promissory note. The promissory note will be payable in
20 equal quarterly installments beginning with the 17th calendar quarter following the closing date of the acquisition and will bear
interest at the rate of 8.25% per year. The promissory note will be convertible into our common stock at the price per share at which
shares of our common stock are sold in this initial public offering for a period of 60 days, beginning on the first anniversary date of the
closing of the acquisition. During this period, the holder of the note may convert 100% or any percentage between 0% and 33% of the
unpaid principal amount due under the note into common stock.
Princeton Review of Boston and Princeton Review of New Jersey had combined revenue of approximately $10.3 million for the year
ended December 31, 1999 and approximately $9.5 million for the nine months ended September 30, 2000. As of September 30, 2000,
Princeton Review of Boston and Princeton Review of New Jersey had approximately 47 full time and 347 part time employees. If we
acquire these businesses, we expect to retain the majority of these employees. Because the nature of these business is very similar to
our test preparation business, we do not anticipate that the integration of these businesses with ours will require any material
operational adjustments.
ACQUISITION OF TWO OF OUR INDEPENDENT FRANCHISES
On August 18, 2000, we acquired the operations of Princeton Review of Hawaii and, on September 8, 2000, we acquired the
operations of Princeton Review of Quebec. Each of these entities provided test preparation courses under The Princeton Review name
through franchise agreements with us. These businesses have been integrated into the operations of our Instruction and Guidance
division. Because the services they provided prior to our acquisition were very similar to our test preparation business, no material
adjustments to the operations of these businesses were required subsequent to the acquisition. The total purchase price for this
acquisition was approximately $320,000 in cash. For the year ended December 31, 1999, Princeton Review of Hawaii and Princeton
Review of Quebec had combined revenue of approximately $405,000.
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USE OF PROCEEDS
We estimate that we will receive net proceeds of approximately $58,164,000 from the sale of 5,400,000 shares of common stock at an
assumed initial public offering price of $12.00 per share, after deducting underwriting discounts and commissions of $4,536,000 and
estimated offering expenses of approximately $2,100,000. If the underwriters exercise their over-allotment option in full, we will
receive net proceeds of approximately $67,204,000.
We plan to use the net proceeds of this offering as follows:
2002. EDGAR Online, Inc.
- approximately $20.0 million to acquire the operations of our domestic franchisees, including the acquisition of Princeton Review of
Boston and Princeton Review of New Jersey with respect to which we have entered into an option agreement as described under "Our
Franchised Operations and Our Plans to Acquire our Domestic Franchises -- Option Agreement to Purchase Two of Our Independent
Franchises" in this prospectus;
- approximately $7.0 million for capital expenditures;
- approximately $4.5 million to repay outstanding borrowings under our credit facility, under which we had outstanding borrowings of
$4.5 million as of October 31, 2000, bearing interest at the prime rate plus 1%, which was 10.5% as of October 31, 2000; and
- the remainder for working capital and other general corporate purposes.
If we are able to reach agreements to acquire all of our domestic franchises, the $20.0 million allocated for that purpose in the previous
paragraph would represent a substantial portion of the purchase price that we estimate would be required to consummate these
acquisitions. We are currently seeking to obtain one or more additional credit facilities in order to finance the remaining portion of the
purchase price we expect to pay for these operations. If we are unable to obtain debt financing in the amounts we require or on
acceptable terms, we may use the net proceeds of this offering to pay a greater portion of the purchase price of these operations, up to
100% of the purchase price.
We may also use the net proceeds from this offering to acquire or invest in other complementary businesses or technologies. We have
no present commitments or agreements with respect to any such acquisitions or investments.
The amounts and timing of our expenditures will depend upon numerous factors, including the amount of proceeds actually raised in
this offering, the availability of debt financing and the amount of cash generated by our operations. Until the proceeds from this
offering are used as described above, we intend to invest the net proceeds of this offering in short-term, interest-bearing,
investment-grade securities.
The above description represents our present intentions based on our current plans and business conditions. Unforeseen events or
changed business conditions, however, could result in the application of the net proceeds from this offering in a manner other than as
described in this prospectus. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net
proceeds we will have upon completion of this offering. Accordingly, our management will have broad discretion to allocate the net
proceeds from this offering.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock or other securities and we do not intend to pay any cash
dividends with respect to our common stock in the foreseeable future. We currently intend to retain any earnings for use in the
operation of our business and to fund future growth. Any future determination to pay cash dividends will be at the discretion of our
board of directors and will depend upon our financial condition, operating results, capital requirements and such other factors as the
board of directors deems relevant.
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CAPITALIZATION
The following table describes our capitalization as of September 30, 2000:
- on an actual basis;
- on a pro forma basis giving effect to our proposed acquisition of Princeton Review of Boston and Princeton Review of New Jersey,
as described under "Our Franchised Operations and Our Plans to Acquire Our Domestic Franchises -- Option Agreement to Purchase
Two of Our Independent Franchises," as if such transactions had occurred on September 30, 2000; and
- on a pro forma as adjusted basis giving further effect to the conversion of all of our outstanding preferred stock into 5,090,713 shares
of common stock upon the completion of this offering, the conversion of our Class B non-voting common stock and Class A common
stock into common stock upon the completion of this offering and our sale of 5,400,000 shares of common stock in this offering at an
assumed initial public offering price of $12.00 per share, after deducting underwriting discounts and commissions and estimated
offering expenses payable by us.
2002. EDGAR Online, Inc.
You should read this table together with our consolidated financial statements and the related notes "Unaudited Pro Forma
Consolidated Financial Data" and the other information included elsewhere in this prospectus.
AS OF SEPTEMBER 30, 2000
---------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
------- --------- -----------
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
Long-term debt, net of current portion...................... $ 682 $10,057 $10,057
Series A redeemable convertible preferred stock, $.01 par
value; 5,000,000 shares authorized, 3,748,548 issued and
outstanding actual and pro forma; no shares authorized,
issued or outstanding pro forma as adjusted............... 27,869 27,869 --
Class B redeemable non-voting common stock, $.01 par value;
10,000,000 shares authorized and 2,737,229 shares issued
and outstanding actual and pro forma; no shares
authorized, issued or outstanding pro forma as adjusted... 6,989 6,989 --
Stockholders' equity (deficit):
Class A common stock, $.01 par value; 25,000,000 shares
authorized, 12,561,986 shares issued and outstanding
actual and pro forma; no shares authorized, issued or
outstanding pro forma as adjusted....................... 126 126 --
Preferred stock (undesignated), $.01 par value; no shares
authorized, issued or outstanding actual and pro forma;
5,000,000 shares authorized and no shares issued or
outstanding pro forma as adjusted....................... -- -- --
Common stock, $.01 par value; no shares authorized, issued
or outstanding actual and pro forma; 100,000,000 shares
authorized, 25,789,928 shares issued and outstanding pro
forma as adjusted....................................... -- -- 258
Additional paid-in capital................................ -- -- 91,851
Accumulated deficit....................................... (7,989) (7,989) (7,989)
Accumulated other comprehensive income.................... 3,310 3,310 3,310
Deferred compensation..................................... (88) (88) (88)
------- ------- -------
Total stockholders' equity (deficit).................... (4,641) (4,641) 87,342
------- ------- -------
Total capitalization.................................... $30,899 $40,274 $97,399
======= ======= =======
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In the event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, our
3,748,548 shares of preferred stock outstanding as of October 31, 2000 will convert into 3,602,566 shares of common stock upon the
completion of this offering rather than the 5,090,713 shares of common stock indicated above. This would result in 24,301,781 shares
of common stock being outstanding upon the completion of this offering, and the pro forma as adjusted information in the table above
would change accordingly.
Outstanding share information in the table above is based on our shares outstanding as of September 30, 2000. This information
excludes:
- 1,437,364 shares of common stock underlying options granted under our stock incentive plan and outstanding as of October 31, 2000
at a weighted average exercise price of $6.87 per share;
- 394,963 additional shares of common stock reserved for future issuance under our stock incentive plan as of October 31, 2000;
- 846,000 additional shares of common stock that will be reserved for future issuance under our stock incentive plan upon the
completion of this offering; and
- assuming an initial public offering price of $12.00 per share, up to 100,000 shares of common stock issuable under warrants
outstanding as of October 31, 2000, with an exercise price equal to the initial public offering price of our common stock in this
2002. EDGAR Online, Inc.
offering.
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DILUTION
Our pro forma net tangible book value (deficit) as of September 30, 2000 was approximately $(8.5) million, or $(0.42) per share of
common stock. Pro forma net tangible book value per share is equal to our total net tangible book value, which is total tangible assets
less total liabilities, giving effect to our proposed acquisition of Princeton Review of Boston and Princeton Review of New Jersey
divided by the pro forma number of shares of common stock outstanding, giving effect to the conversion of all outstanding preferred
stock into 5,090,713 shares of common stock upon the completion of this offering. At an assumed initial public offering price of
$12.00 per share and after deducting underwriting discounts and commissions and estimated offering expenses payable by us, our pro
forma net tangible book value as of September 30, 2000 would have been approximately $83.4 million, or $3.24 per share. This
represents an immediate increase in pro forma net tangible book value to existing stockholders of $3.66 per share and an immediate
dilution to new investors of $8.76 per share. The following table illustrates the per share dilution:
Assumed initial public offering price.......................
$12.00
Pro forma net tangible book value per share as of
September 30, 2000..................................... $(0.42)
Increase per share attributable to this offering.......... 3.66
Pro forma as adjusted net tangible book value per share.....
3.24
------
Dilution per share to new investors......................... $
8.76
======
Assuming the underwriters' over-allotment option is exercised in full, our adjusted pro forma net tangible book value as of September
30, 2000 would have been $3.48 per share, representing an immediate increase in pro forma net tangible book value of $3.90 per share
to our existing stockholders and an immediate dilution of $8.52 per share to new investors.
The following table illustrates on a pro forma basis, as of September 30, 2000, the difference between the number of shares of
common stock purchased from us, the total consideration paid and the average price per share paid or to be paid by our existing
stockholders and by new investors at an assumed initial public offering price of $12.00 per share and before deducting underwriting
discounts and commissions and estimated offering expenses.
SHARES PURCHASED TOTAL CONSIDERATION
-------------------- ---------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ------------ ------- -------------
Existing stockholders...... 20,389,928 79.1% $ 46,193,000 41.6% $ 2.27
New investors.............. 5,400,000 20.9 64,800,000 58.4 12.00
---------- ----- ------------ ----- ------
Total............ 25,789,928 100.0% $110,993,000 100.0% $ 4.30
========== ===== ============ ===== ======
The above computations exclude 1,437,364 shares of common stock issuable upon the exercise of options outstanding as of October
31, 2000 at a weighted average exercise price of $6.87 per share. To the extent any of these options are exercised, there will be further
dilution to new investors. The above computations also exclude 394,963 shares of common stock reserved for issuance under our stock
incentive plan, 846,000 additional shares of common stock that will be reserved for future issuance under our stock incentive plan
upon the completion of this offering and, assuming an initial public offering price of $12.00 per share, up to 100,000 shares of
common stock issuable under warrants outstanding as of October 31, 2000, with an exercise price equal to the initial public offering
2002. EDGAR Online, Inc.
price of our common stock in this offering.
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UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Our unaudited pro forma consolidated financial data as of September 30, 2000 and for the year ended December 31, 1999 and for the
nine months ended September 30, 2000 includes:
- our summary historical consolidated financial data;
- summary historical combined financial data of Princeton Review of Boston and Princeton Review of New Jersey;
- pro forma adjustments made to the historical financial data presented;
- our summary unaudited pro forma consolidated financial data, giving effect to the proposed acquisition of Princeton Review of
Boston and Princeton Review of New Jersey as if it had been completed January 1, 1999, in the case of the statement of operations
data, and September 30, 2000, in the case of the balance sheet data; and
- our summary unaudited pro forma as adjusted consolidated financial data giving further effect to the conversion of all of our
outstanding preferred stock into 5,090,713 shares of common stock upon the completion of this offering, the conversion of our Class A
common stock and Class B non-voting common stock into common stock upon the completion of this offering and the issuance of
5,400,000 shares of common stock offered by this prospectus at an assumed initial public offering price of $12.00 per share, after
deducting underwriting discounts and estimated offering expenses payable by us.
The summary unaudited pro forma and pro forma as adjusted consolidated financial data is not necessarily indicative of the operating
results or the financial condition that would have been achieved if we had completed the acquisition of Princeton Review of Boston
and Princeton Review of New Jersey as of the dates indicated and should not be construed as representative of our future operating
results or financial condition. Additionally, our acquisition of Princeton Review of Boston and Princeton Review of New Jersey is
subject to a number of conditions, including the fulfillment or waiver of the conditions to closing included in the option agreement and
other documentation relating to the acquisition. We cannot assure you that these conditions will be fulfilled or that this acquisition will
be completed. We are not required to exercise the option and purchase these franchises. We may decide to delay this acquisition or
abandon it altogether.
The summary historical and unaudited pro forma consolidated financial data is qualified by reference to and should be read in
conjunction with the financial statements and related notes and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" included elsewhere in this prospectus. Our financial data as of and for the nine months ended September 30,
2000 is derived from our unaudited consolidated financial statements included elsewhere in this prospectus. In the opinion of our
management, these unaudited consolidated financial statements have been prepared by us on a basis consistent with our annual audited
consolidated financial statements which appear elsewhere in this prospectus and include all adjustments, consisting only of normal
recurring adjustments, necessary for a fair statement of our financial position and results of operations for these unaudited periods. We
have calculated the weighted average shares used in computing net income (loss) per share as described in Note 1 to our consolidated
financial statements.
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2002. EDGAR Online, Inc.
YEAR ENDED DECEMBER 31, 1999
-------------------------------------------------------------
COMBINED
PRINCETON REVIEW OF
BOSTON AND
PRINCETON PRINCETON REVIEW OF PRO FORMA
REVIEW NEW JERSEY ADJUSTMENTS PRO FORMA
--------- ------------------- ----------- ---------
(UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Revenue
Instruction and Guidance......................... $29,901 $10,345 $(1,401)(1) $38,845
Review.com....................................... 5,289 -- -- 5,289
Homeroom.com..................................... 5,112 -- -- 5,112
------- ------- ------- -------
Total revenue............................. 40,302 10,345 (1,401) 49,246
------- ------- ------- -------
Cost of revenue
Instruction and Guidance......................... 9,759 4,959 (1,401)(1) 13,317
Review.com....................................... 1,469 -- -- 1,469
Homeroom.com..................................... 1,942 -- -- 1,942
------- ------- ------- -------
Total cost of revenue..................... 13,170 4,959 (1,401) 16,728
------- ------- ------- -------
Gross profit.............................. 27,132 5,386 -- 32,518
Operating expenses
Selling, general and administrative.............. 28,815 3,851 (927)(2) 32,541
802(3)
Research and development......................... 878 -- -- 878
------- ------- ------- -------
Total operating expenses.................. 29,693 3,851 (125) 33,419
------- ------- ------- -------
Operating income (loss)............................ (2,561) 1,535 125 (901)
Gain (loss) on distribution/sale of securities and
other assets..................................... 1,049 (6) -- 1,043
Interest expense................................... (88) -- (945)(4) (1,033)
Other income....................................... 90 59 -- 149
------- ------- ------- -------
Income (loss) before minority interests and
(provision) benefit for income taxes............. (1,510) 1,588 (820) (742)
Minority interests' share of income in
subsidiaries..................................... (585) -- -- (585)
Income (loss) before (provision) benefit for income
taxes............................................ (2,095) 1,588 (820) (1,327)
(Provision) benefit for income taxes............... 51 (18) -- 33
------- ------- ------- -------
Net income (loss).................................. $(2,044) $ 1,570 $ (820) $(1,294)
======= ======= ======= =======
Net loss per share -- basic and diluted............ $ (0.20) $ (0.12)
======= =======
Weighted average basic and diluted shares used in
computing net loss per share..................... 10,404 10,404
(1)Represents the elimination of royalty payments and payments for course and marketing materials and other products received by us
from these entities.
(2)Represents the elimination of approximately $927,000 in salaries of the principals of these entities who will no longer be employed.
(3)Represents amortization of goodwill, over a 15-year period, of approximately $802,000 arising from the transaction.
(4)Represents interest expense related to anticipated borrowings to finance this acquisition consisting of an approximately $3.1 million
convertible note to the sellers and expected bank debt of approximately $6.3 million. The sellers' note would bear interest at the rate of
8.25% per year. Interest on the bank indebtedness is estimated using an 11% per year rate of interest. This adjustment assumes that the
note is not converted into common stock during the periods presented.
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2002. EDGAR Online, Inc.
NINE MONTHS ENDED SEPTEMBER 30, 2000
---------------------------------------------------------
COMBINED
PRINCETON REVIEW OF
BOSTON AND
PRINCETON PRINCETON REVIEW OF PRO FORMA
REVIEW NEW JERSEY ADJUSTMENTS PRO FORMA
--------- ------------------- ----------- ---------
(UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Revenue
Instruction and Guidance......................... $ 27,283 $9,528 $(1,251)(1) $ 35,560
Review.com....................................... 3,756 -- -- 3,756
Homeroom.com..................................... 3,115 -- -- 3,115
-------- ------ ------- --------
Total revenue............................. 34,154 9,528 (1,251) 42,431
-------- ------ ------- --------
Cost of revenue
Instruction and Guidance......................... 8,922 4,037 (1,251)(1) 11,708
Review.com....................................... 800 -- -- 800
Homeroom.com..................................... 620 -- -- 620
-------- ------ ------- --------
Total cost of revenue..................... 10,342 4,037 (1,251) 13,128
-------- ------ ------- --------
Gross profit.............................. 23,812 5,491 -- 29,303
Operating expenses
Selling, general and administrative.............. 40,428 2,742 (361)(2) 43,410
601(3)
Research and development......................... 420 -- -- 420
-------- ------ ------- --------
Total operating expenses.................. 40,848 2,742 240 43,830
-------- ------ ------- --------
Operating income (loss).......................... (17,036) 2,749 (240) (14,527)
Gain on distribution/sale of securities and other
assets........................................... 7,597 -- -- 7,597
Interest expense................................... (105) -- (709)(4) (814)
Other income....................................... 473 36 -- 509
-------- ------ ------- --------
Income (loss) before minority interests, equity
interest in operations of affiliates and
(provision) benefit for income taxes............. (9,071) 2,785 (949) (7,235)
Minority interests' share of income in
subsidiaries..................................... (50) -- -- (50)
Equity interest in operations of affiliates........ (413) -- -- (413)
-------- ------ ------- --------
Income (loss) before (provision) benefit for income
taxes............................................ (9,534) 2,785 (949) (7,698)
(Provision) benefit for income taxes............... 6,532 (44) -- 6,488
-------- ------ ------- --------
Net income (loss).................................. $ (3,002) $2,741 $ (949) $ (1,210)
======== ====== ======= ========
Net loss per share -- basic and diluted............ $ (0.22) $ (0.09)
======== ========
Weighted average basic and diluted shares used in
computing net loss per share..................... 13,667 13,667
(1)Represents the elimination of royalty payments and payments for course and marketing materials and other products received by us
from these entities.
(2)Represents the elimination of approximately $361,000 in salaries of the principals of these entities who will no longer be employed.
(3)Represents amortization of goodwill, over a 15-year period, of approximately $601,000 arising from the transaction.
(4)Represents interest expense related to anticipated borrowings to finance this acquisition consisting of an approximately $3.1 million
convertible note to the sellers and expected bank debt of approximately $6.3 million. The sellers' note would bear interest at the rate of
8.25% per year. Interest on the bank indebtedness is estimated using an 11% per year rate of interest. This adjustment assumes that the
note is not converted into common stock during the periods presented.
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2002. EDGAR Online, Inc.
AS OF SEPTEMBER 30, 2000
-------------------------------------------------------------------
COMBINED
PRINCETON
REVIEW OF
BOSTON AND
PRINCETON
PRINCETON REVIEW OF PRO FORMA PRO FORMA
REVIEW NEW JERSEY ADJUSTMENTS PRO FORMA AS ADJUSTED
----------- ----------- ----------- ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED)
BALANCE SHEET DATA:
ASSETS
Current assets:
Cash and cash equivalents................................. $11,586 $4,117 $(2,627)(1) $ 9,951 $ 68,115
(3,125)(2)
Accounts receivable, net.................................. 5,033 -- 5,033 5,033
Accounts receivable -- related parties.................... 1,998 -- (59)(3) 1,939 1,939
Other receivables......................................... 10 -- 10 10
Other receivables -- related parties...................... 346 19 365 365
Inventories............................................... 474 -- 474 474
Prepaid expenses.......................................... 883 49 932 932
Securities, available for sale............................ 5,859 -- 5,859 5,859
Other assets.............................................. 1,858 517 (517)(4) 1,858 819
------- ------ ------- ------- --------
Total current assets.................................... 28,047 4,702 (6,328) 26,421 83,546
Furniture, fixtures, equipment and software development,
net....................................................... 6,182 201 6,383 6,383
Franchise costs, net........................................ 227 -- 227 227
Territorial marketing rights, net........................... 1,620 -- 1,620 1,620
Publishing rights, net...................................... 1,387 -- 1,387 1,387
Deferred income taxes....................................... 6,847 -- 6,847 6,847
Investments in affiliates................................... 587 -- 587 587
Other assets................................................ 2,846 365 (160)(4) 15,078 15,078
12,027(5)
------- ------ ------- ------- --------
Total assets............................................ $47,743 $5,268 $ 5,539 $58,550 $115,675
======= ====== ======= ======= ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable.......................................... $ 1,262 -- $ 1,262 $ 1,262
Accrued expenses and taxes payable........................ 6,024 $ 271 $ (271)(6) 5,965 5,965
(59)(3)
Accrued expenses -- related parties....................... 202 -- 202 202
Line of credit............................................ -- -- -- --
Current maturities of long-term debt...................... 486 -- 486 486
Deferred income........................................... 5,809 1,491 7,300 7,300
Book advances............................................. 472 -- 472 472
Book advances -- related parties.......................... 492 -- 492 492
Deferred income taxes..................................... 2,097 -- 2,097 2,097
------- ------ ------- ------- --------
Total current liabilities............................... 16,844 1,762 (330) 18,276 18,276
Long-term debt.............................................. 682 -- 9,375(7) 10,057 10,057
Minority interest........................................... -- -- --
Series A redeemable convertible preferred stock, $.01 par
value; 5,000,000 shares authorized, 3,748,548 shares
issued and outstanding.................................... 27,869 -- 27,869 --
Class B redeemable non-voting common stock, $.01 par value;
10,000,000 shares authorized, 2,737,229 shares issued and
outstanding............................................... 6,989 -- 6,989 --
Stockholders' equity (deficit):
Class A common stock $.01 par value; 25,000,000 shares
authorized, 12,561,986 shares issued and outstanding...... 126 1 (1) 126 --
Common stock $.01 par value, no shares authorized, issued or
outstanding actual and pro forma: 100,000,000 shares
authorized, 25,789,928 shares issued and outstanding pro
forma as adjusted......................................... -- -- -- 258
Additional paid-in capital.................................. -- 675 (675) -- 91,851
Retained earnings (accumulated deficit)..................... (7,989) 2,669 (2,669) (7,989) (7,989)
Accumulated other comprehensive income...................... 3,310 161 (161) 3,310 3,310
Deferred compensation....................................... (88) -- -- (88) (88)
------- ------ ------- ------- --------
Total stockholders' equity (deficit).................... (4,641) 3,506 (3,506)(8) (4,641) 87,342
------- ------ ------- ------- --------
Total liabilities and stockholders' equity.............. $47,743 $5,268 $ 5,539 $58,550 $115,675
======= ====== ======= ======= ========
(Footnotes on following page.)
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(1)Represents cash balance, less portion attributed to deferred income. Cash balances in excess of amounts related to deferred income
are excluded from the assets being acquired.
(2)Represents the cash portion of the purchase price of the acquisition, net of expected indebtedness.
(3)Represents the elimination of $59,000 of receivables due from these entities.
(4)Represents the elimination of other assets not being acquired.
(5)Represents goodwill resulting from the acquisition of these businesses of approximately $12.0 million.
2002. EDGAR Online, Inc.
(6)Represents the elimination of liabilities that are not part of the acquisition, which remain the responsibility of the sellers.
(7)Represents our anticipated incurrence of indebtedness in connection with the financing of this acquisition, consisting of an
approximately $3.1 million convertible note to the sellers and expected bank debt of approximately $6.3 million.
(8)Represents the elimination of stockholders' equity of approximately $3.5 million.
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SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The consolidated statement of operations data for each of the years ended December 31, 1997, 1998 and 1999 and for the nine months
ended September 30, 1999 and 2000, and the consolidated balance sheet data as of December 31, 1998 and 1999 and September 30,
2000 has been derived from our consolidated financial statements appearing elsewhere in this prospectus. The consolidated statement
of operations data for the years ended December 31, 1995 and 1996 and the consolidated balance sheet data as of December 31, 1995,
1996 and 1997 has been derived from our consolidated financial statements which are not included in this prospectus. Deloitte &
Touche LLP, independent auditors, have audited the consolidated financial statements for the years ended December 31, 1995, 1996
and 1997 and Ernst & Young LLP, independent auditors, have audited the consolidated financial statements for the years ended
December 31, 1998 and 1999. The consolidated statement of operations data for the nine months ended September 30, 1999 and 2000
and the consolidated balance sheet data as of September 30, 2000 are unaudited. In the opinion of our management, the unaudited
consolidated financial statements have been prepared on a basis consistent with the annual audited consolidated financial statements
which appear elsewhere in this prospectus, and include all adjustments, consisting only of normal recurring adjustments necessary for a
fair statement of our financial position and results of operations for these unaudited periods. The information shown below is qualified
by reference to and should be read together with our consolidated financial statements and their notes and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included elsewhere in this prospectus. We have calculated the
weighted average shares used in computing net income (loss) per share as described in Note 1 to our consolidated financial statements.
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2002. EDGAR Online, Inc.
NINE MONTHS
ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------- -------------------------
1995 1996 1997 1998 1999 1999 2000
------- ------- ------- ------- ------- ----------- -----------
(UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Revenue
Instruction and Guidance.......................... $24,075 $23,242 $27,380 $28,323 $29,901 $ 23,645 $ 27,283
Review.com........................................ 2,910 3,238 5,134 4,464 5,289 3,894 3,756
Homeroom.com...................................... -- -- -- 959 5,112 3,133 3,115
------- ------- ------- ------- ------- ----------- -----------
Total revenue................................... 26,985 26,480 32,514 33,746 40,302 30,672 34,154
------- ------- ------- ------- ------- ----------- -----------
Cost of revenue
Instruction and Guidance.......................... 9,458 7,941 10,575 9,844 9,759 7,338 8,922
Review.com........................................ 1,307 2,587 2,717 1,672 1,469 817 800
Homeroom.com...................................... -- -- -- 384 1,942 801 620
------- ------- ------- ------- ------- ----------- -----------
Total cost of revenue........................... 10,765 10,528 13,292 11,900 13,170 8,956 10,342
------- ------- ------- ------- ------- ----------- -----------
Gross profit.................................... 16,220 15,952 19,222 21,846 27,132 21,716 23,812
Operating expenses
Selling, general and administrative............... 13,918 19,205 17,919 22,030 28,815 18,747 40,428
Research and development.......................... 780 493 1,013 1,174 878 519 420
------- ------- ------- ------- ------- ----------- -----------
Total operating expenses........................ 14,698 19,698 18,932 23,204 29,693 19,266 40,848
------- ------- ------- ------- ------- ----------- -----------
Operating income (loss) from continuing
operations........................................ 1,522 (3,746) 290 (1,358) (2,561) 2,450 (17,036)
Gain on distribution/sale of securities and other
assets............................................ -- -- 523 732 1,049 -- 7,597
Interest expense.................................... (33) (45) (157) (148) (88) (44) (104)
Other income........................................ 162 98 86 79 90 42 473
------- ------- ------- ------- ------- ----------- -----------
Income (loss) from continuing operations before
minority interests, equity interest in operations
of affiliates and (provision) benefit for income
taxes............................................. 1,651 (3,693) 742 (695) 1,510 2,448 (9,070)
Minority interests' share of income in
subsidiaries...................................... 214 1,112 (473) (505) (585) (513) (50)
Equity interest in operations of affiliates......... -- -- -- -- -- -- (413)
------- ------- ------- ------- ------- ----------- -----------
Income (loss) from continuing operations before
(provision) benefit for income taxes.............. 1,865 (2,581) 269 (1,200) (2,095) 1,935 (9,534)
(Provision) benefit for income taxes................ (105) 172 188 (215) 51 (59) 6,532
------- ------- ------- ------- ------- ----------- -----------
Income (loss) from continuing operations............ 1,760 (2,409) 457 (1,415) (2,044) 1,876 (3,002)
Discontinued operations:............................
Loss from operations of discontinued software
division...................................... (932) (2,334) (1,846) (644) -- -- --
Loss from operations of discontinued student
loan division................................. -- 228 (655) (706) -- -- --
Income on disposal of discontinued software
division...................................... -- -- -- 4,874 -- -- --
------- ------- ------- ------- ------- ----------- -----------
Income (loss) from discontinued operations.......... (932) (2,106) (2,501) 3,524 -- -- --
------- ------- ------- ------- ------- ----------- -----------
Net income (loss)................................... $ 828 $(4,515) $(2,043) $ 2,109 $(2,044) $ 1,876 $ (3,002)
======= ======= ======= ======= ======= =========== ===========
Net income (loss) per share -- basic and diluted:
Income (loss) from continuing operations.......... 0.17 (0.24) 0.04 (0.14) (0.20) 0.18 (0.22)
Income (loss) from discontinued operations........ (0.09) (0.20) (0.24) 0.34 -- -- --
------- ------- ------- ------- ------- ----------- -----------
Net income (loss) per share -- basic and diluted.... $ 0.08 $ (0.44) $ (0.20) $ 0.20 $ (0.20) $ 0.18 $ (0.22)
======= ======= ======= ======= ======= =========== ===========
Weighted average basic and diluted shares used in
computing net income (loss) per share............. 10,104 10,231 10,404 10,404 10,404 10,404 13,667
======= ======= ======= ======= ======= =========== ===========
AS OF DECEMBER 31, AS OF
----------------------------------------------- SEPTEMBER 30,
1995 1996 1997 1998 1999 2000
------- ------- ------- ------- ------- -------------
(UNAUDITED)
BALANCE SHEET DATA:
Cash and cash equivalents................................... $ 5,868 $ 1,524 $ 680 $ 1,519 $ 2,658 $11,586
Total assets................................................ 16,958 12,186 13,230 13,459 53,698 47,743
Long-term debt, net of current portion...................... 58 3 251 264 538 682
Series A redeemable convertible preferred stock............. -- -- -- -- -- 27,869
Class B redeemable non-voting common stock.................. 257 257 257 257 257 6,989
Stockholders' equity (deficit).............................. 7,975 3,050 973 2,809 33,524 (4,641)
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our
2002. EDGAR Online, Inc.
consolidated financial statements and the related notes included elsewhere in this prospectus. This discussion and analysis contains
forward-looking statements that involve risks and uncertainties. Our actual results may differ materially from those anticipated in these
forward-looking statements as a result of many factors, including, but not limited to, those described under "Risk Factors" and
elsewhere in this prospectus.
OVERVIEW
We develop, market and sell integrated online, print and classroom-based products and services to students, parents, educators and
educational institutions. We help students and families achieve their educational and career goals, elementary and secondary schools
maximize their effectiveness, and colleges and graduate schools attract greater numbers of qualified applicants at lower cost. Our
range of products and services includes online and classroom-based instruction, admissions counseling, creation of content for print
and software publishers and marketing services for colleges and graduate schools.
We operate our business through three divisions. The majority of our revenue is earned by the Instruction and Guidance division,
which sells a range of services including test preparation, tutoring and admissions counseling. Our Review.com division earns the
majority of its revenue from authoring books and developing content for software for third party publishers. Review.com also sells
advertising and sponsorships on our Review.com Web site and collects marketing fees from higher education institutions. Our newest
division, Homeroom.com, currently earns fees from content development services and recently launched an Internet-based
subscription service for K-12 schools and parents.
Revenue
Historically, we have derived the majority of our revenue from the services provided by our Instruction and Guidance division, which
had approximately $29.9 million in revenue and approximately $20.1 million in gross profit in 1999. Instruction and Guidance derives
its revenue from our company-owned operations and from our independent franchisees. Revenue from our independent franchisees is
received by us in the form of royalties and fees for course and marketing materials. Our franchisees operate these businesses
independently and are responsible for all of the costs and expenses associated with rendering their services.
Profits from the Instruction and Guidance division have been used to fund much of the costs of the new media initiatives of our
Review.com and Homeroom.com divisions. In the future, we expect that revenue from these initiatives will represent a greater
percentage of our overall revenue, as we expand our newer Internet-based products and services.
Instruction and Guidance. The Instruction and Guidance division derives revenue from:
- test preparation courses and tutoring services, which consists of tuition and fees paid to our company-operated sites. We recognize
revenue from tuition paid for our courses over the life of the course, which is usually from five to 10 weeks depending on the course
type. Tutoring revenue is based on an hourly fee and is recognized as the services are delivered. Course and tutoring revenue
represented approximately 58% of our total revenue in 1999 and approximately 62% of our total revenue in the first nine months of
2000.
- royalty fees paid to us by our independent franchisees. These royalties are 8% of all cash receipts collected by our franchisees for all
test preparation and tutoring services performed by them under The Princeton Review name. Our franchise contracts have an
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average term of 10 years and automatically renew with the payment of a renewal fee and satisfaction by the franchisees of
requirements for renewal. We recognize revenue from franchise royalties on a monthly basis. This revenue represented approximately
8% of our total revenue in 1999 and approximately 9% of our total revenue in the first nine months of 2000.
- sales of course and marketing materials and other products to our independent franchisees. This revenue is recognized upon the
transfer of title to our customers, which occurs on the shipment dates of these materials. This revenue represented approximately 6%
of our total 1999 revenue and approximately 7% of our total revenue in the first nine months of 2000.
- admissions counseling services, including Princeton Review 121 services and our institutional contract with Edison Schools, Inc.
Princeton Review 121, launched in New York City in 1999, offers high-end college admissions counseling and tutoring to individual
students and families. This revenue is recognized over the period the service is provided. Revenue from our contract to provide Edison
Schools with admissions counseling services is recognized annually over the school year. Revenue from our admissions counseling
services represented approximately 0.3% of our total 1999 revenue and approximately 0.5% of our total revenue in the first nine
months of 2000.
2002. EDGAR Online, Inc.
Our Instruction and Guidance division launched our Princeton Review Online courses in July 2000. To date, we have not derived
significant revenue from these courses but expect that these courses will generate significant revenue in future periods.
If we are successful in implementing our strategy of acquiring the operations of our domestic franchisees, we anticipate that revenue
from our Instruction and Guidance division will increase in future periods as recognition of royalties from franchisees is replaced by
recognition of all revenue earned from rendering these services.
Review.com. The Review.com division derives revenue from:
- authoring books published by Random House and providing content for software published by The Learning Company. This revenue
consists of performance-based fees, including royalties and marketing fees from sales of books and software. We recognize these fees
based on estimated sales of the books and software and later adjust to reflect actual sales. Additionally, we earn delivery-based fees
from Random House in the form of advances and copy editing fees for books written by us. We recognize these fees as the products
are delivered. This revenue represented approximately 8% of our total 1999 revenue and approximately 7% of our total revenue in the
first nine months of 2000.
- annual marketing fees from colleges to promote their programs on our Web site and in our co-branded publications, and to include
their admissions applications on our Web site and APPLY! CD. Historically, we have recognized this revenue during the third and
fourth quarters as the products were delivered. As a result of the introduction of additional Web-based features in 2000, in the third
quarter of 2000 we began recognizing this revenue ratably over the course of the year. This revenue represented approximately 2% of
our total 1999 revenue and approximately 0.8% of our total revenue in the first nine months of 2000.
- sales of advertising and sponsorships on our Review.com Web site.
Advertising and sponsorship revenue is recognized each month based on contractual terms. This revenue represented approximately
0.6% of our total revenue in 1999 and approximately 3% of our total revenue in the first nine months of 2000. With the addition of
several agreements in 2000 providing for sales of advertisements on our Review.com Web site, we expect this revenue to increase in
future periods.
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Homeroom.com. The Homeroom.com division currently derives revenue from our agreement with McGraw-Hill through:
- royalties for Princeton Review branded content that we provide for their textbooks, which we recognize based on estimated sales of
the textbooks and later adjust to reflect actual sales. Under the agreement, the maximum amount of royalties that we can earn in any
one year is $1.55 million;
- an annual fee for the use of The Princeton Review trademark on materials published by McGraw-Hill, which we recognize pro rata
over the entire year;
- development fees for the production of workbook manuscripts, which we recognize as the products are delivered; and
- an annual fee for preparing questions for an electronic database in various subjects and grade levels, which we recognize as the
questions are completed.
These fees are based on rates and other terms specified in our agreement with McGraw-Hill, which has an initial term that expires in
2002 and renews automatically for additional one-year periods unless terminated by either party. Our agreement with McGraw-Hill
also contains a non-competition provision that restricts us from entering into a similar agreement during the term of the agreement with
anyone engaged in the development, publication and distribution of proprietary educational materials to the pre-K-12 educational
market. It also restricts our use, after the expiration of the agreement, of the materials we develop under the agreement by not
permitting us to use or publish more than 40% of those materials in competing textbooks or other educational programs.
All of the revenue generated by this division to date has been generated from services rendered under our agreement with
McGraw-Hill. We expect that, with the launch of Homeroom.com's Internet-based subscription service in the third quarter of 2000,
this division will also earn annual subscription fees from schools and families. We anticipate that we will recognize subscription
revenue ratably over the life of the subscription period. With respect to any future revenue received through our distribution agreement
with bigchalk.com, we will only recognize the portion of the revenue to which we are entitled under the agreement. For a description
of our distribution agreement with bigchalk.com, see "Business -- Sales and Marketing."
2002. EDGAR Online, Inc.
Cost of Revenue
Instruction and Guidance. Cost of revenue consists of course expenses of our company-owned operations and cost of materials sold.
Course expenses consist of costs incurred to deliver test preparation courses, tutoring and admissions counseling services, including
rent of classroom space, teacher salaries, credit card fees, costs of course materials purchased from third party vendors and a fee of 2%
of our cash receipts paid to a national advertising fund contributed to by us and our franchisees. Costs of materials sold are comprised
of the costs to manufacture and distribute the course and marketing materials and other products. The largest components of cost of
revenue in our Instruction and Guidance division are rent of classroom space and teacher salaries, which together accounted for
approximately 61% of the cost of revenue of this division in 1999 and approximately 55% of the cost of revenue of this division in the
first nine months of 2000. In the third quarter of 2000, we began paying a royalty to our franchisees in exchange for allowing us to
offer our Princeton Review Online courses within their territories. Through December 31, 2002, this royalty will be calculated as 15%
of our revenue from Princeton Review Online courses provided to students residing within our franchisee's territories, net of certain
administrative expenses. If we are successful in acquiring our domestic franchisees, cost of revenue in this division will include the
costs of operating these acquired businesses.
Review.com. Cost of revenue consists primarily of the costs to author, develop, edit and produce the content for books, software, our
Review.com Web site and other products. To the
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extent these costs relate to revenue which is not recognized until products are delivered, the corresponding costs are also deferred until
delivery of the products.
Homeroom.com. Cost of revenue consists of costs to author and produce the workbooks, develop content for textbooks and our
Homeroom.com Web site and develop our question pool. To the extent these costs relate to revenue which is not recognized until
products are delivered, the corresponding costs are also deferred until delivery of the products. Beginning with the third quarter of
2000, we began amortizing Web site related content development costs. As of September 30, 2000, we had approximately $1.8 million
of capitalized Web site related content development costs.
Selling, General and Administrative Expenses
Selling, general and administrative expenses include payroll and payroll related expenses, advertising expenses, and office facility
expenses, including rent, utilities, telephone and miscellaneous expenditures, which collectively represented approximately 70% of our
total selling, general and administrative expenses in 1999 and approximately 53% of our total selling, general and administrative
expenses in the first nine months of 2000. Selling, general and administrative expenses also include compensation expenses associated
with the PSU and SAR plans formerly maintained by us, as well as the one time compensation expense incurred by us in the second
quarter of 2000 as a result of the termination of those plans as part of our restructuring. These expenses comprised approximately 9%
of our total selling, general and administrative expenses in 1999 and approximately 26% of our total selling, general and
administrative expenses in the first nine months of 2000. Compensation expenses in connection with awards under our new 2000 Stock
Incentive Plan are also recorded in selling, general and administrative expenses. Finally, the remaining components of selling, general
and administrative expenses include professional fees, travel and entertainment and depreciation and amortization. If we are successful
in acquiring our domestic franchisees, selling, general and administrative expenses associated with our Instruction and Guidance
division will include expenses associated with the operation of these businesses. For a more detailed description of our restructuring
and the termination of our PSU and SAR plans, see "Our Restructuring."
Research and Development
Research and development expense consists of expenses incurred by our Instruction and Guidance division to develop, update and
enhance course materials and curriculum and to develop instructors' training methods.
Minority Interests' Share of Income in Subsidiaries
Minority interest expense consists of the share of the profits attributed to the holders of minority interests in our subsidiaries. As a
result of our restructuring, all minority interests have been eliminated.
(Provision) Benefit for Income Taxes
Until March 31, 2000, we operated as an S corporation with ownership interests in limited liability company subsidiaries. Prior to that
time, our earnings were included in the taxable income of our stockholders for federal and some state income tax purposes. We were
2002. EDGAR Online, Inc.
not subject to income tax on our earnings, other than with respect to state and local jurisdictions that do not recognize the S
corporation or LLC structure. State and local taxes were accrued for those jurisdictions that do not recognize the S corporation or LLC
structure, at rates reflective of those state and local jurisdictions. As a result of our restructuring from an S corporation to a C
corporation, we have become subject to federal, state and local taxes. Accordingly, we now record future tax benefits and deferred tax
liabilities and a corresponding tax benefit or tax expense in our statement of income.
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Loss from Discontinued Operations and Income on Disposal of Discontinued Software Division
Loss from discontinued operations represents the net revenue and expenses relating to our Student Loan and Software Manufacturing
and Distribution divisions, which were discontinued in 1998. Income on disposal of discontinued software division represents the gain
to us from the sale of our Software Manufacturing and Distribution division to The Learning Company in 1998 and the grant to The
Learning Company of a license to use our brand. We received approximately $5.1 million in the transaction, resulting in a net gain of
approximately $4.9 million.
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RESULTS OF OPERATIONS
The following table presents, for the periods indicated, selected data from our statements of operations as a percentage of total
revenue. We have derived our statements of operations data for 1997, 1998 and 1999 periods from our audited financial statements.
This information should be read together with our consolidated financial statements and related notes included elsewhere in this
prospectus. The operating results in any period are not necessarily indicative of the results that may be expected for any future period.
2002. EDGAR Online, Inc.
NINE MONTHS
ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------- ----------------
1997 1998 1999 1999 2000
----- ----- ----- ----- -----
(UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Revenue
Instruction and Guidance............................ 84.2% 83.9% 74.2% 77.1% 79.9%
Review.com.......................................... 15.8 13.2 13.1 12.7 11.0
Homeroom.com........................................ -- 2.9 12.7 10.2 9.1
----- ----- ----- ----- -----
Total revenue..................................... 100.0 100.0 100.0 100.0 100.0
Cost of revenue
Instruction and Guidance............................ 32.5 29.2 24.2 23.9 26.1
Review.com.......................................... 8.4 5.0 3.6 2.7 2.4
Homeroom.com........................................ -- 1.1 4.8 2.6 1.8
----- ----- ----- ----- -----
Total cost of revenue............................. 40.9 35.3 32.6 29.2 30.3
----- ----- ----- ----- -----
Gross profit...................................... 59.1 64.7 67.4 70.8 69.7
Operating expenses
Selling, general and administrative................. 55.1 65.2 71.5 61.1 118.4
Research and development............................ 3.1 3.5 2.2 1.7 1.2
----- ----- ----- ----- -----
Total operating expenses.......................... 58.2 68.7 73.7 62.8 119.6
----- ----- ----- ----- -----
Operating income (loss) from continuing operations.... 0.9 (4.0) (6.3) 8.0 (49.9)
Gain on distribution/sale of securities and other
assets.............................................. 1.6 2.1 2.6 -- 22.2
Interest expense...................................... (0.5) (0.4) (0.2) (0.1) (0.3)
Other income.......................................... 0.3 0.2 0.2 0.1 1.4
----- ----- ----- ----- -----
Income (loss) from continuing operations before
minority interests, equity interest in operations of
affiliates and (provision) benefit for income
taxes............................................... 2.3 (2.1) (3.7) 8.0 (26.6)
Minority interests' share of income in subsidiaries... (1.5) (1.5) (1.5) (1.7) (0.1)
Equity interest in operations of affiliates........... -- -- -- -- (1.2)
Income (loss) from continuing operations before
(provision) benefit for income taxes................ 0.8 (3.6) (5.2) 6.3 (27.9)
(Provision) benefit for income taxes.................. 0.6 (0.6) 0.1 (0.2) 19.1
----- ----- ----- ----- -----
Income (loss) from continuing operations.............. 1.4 (4.2) (5.1) 6.1 (8.8)
Discontinued operations:
Loss from discontinued operations................... (7.7) (4.0) -- -- --
Income on disposal of discontinued software
division.......................................... -- 14.4 -- -- --
----- ----- ----- ----- -----
Income (loss) from discontinued operations............ (7.7) 10.4 -- -- --
----- ----- ----- ----- -----
Net income (loss)..................................... (6.3)% 6.2% (5.1)% 6.1% (8.8)%
===== ===== ===== ===== =====
39
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COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 2000 AND 1999
Revenue
Our total revenue increased from $30.7 million in 1999 to $34.2 million in 2000, representing an 11% increase.
Instruction and Guidance revenue increased from $23.6 million in 1999 to $27.3 million in 2000, representing a 15% increase. This
increase resulted primarily from increased student enrollment and price increases at both our company-operated and franchise
locations. Tuition revenue at our company-owned operations increased by approximately $2.2 million and royalties from independent
franchises increased by approximately $852,000. Additionally, revenue from sales of materials to our independent franchises increased
by approximately $557,000 over the same period in 1999.
Review.com's revenue decreased from $3.9 million in 1999 to $3.8 million in 2000, representing a 4% decrease. The majority of this
decrease resulted from a decrease in revenue from college marketing fees recognized during the period, from $1.0 million to $274,000.
2002. EDGAR Online, Inc.
This decrease in marketing fees was caused by a change in the method of recognizing those fees during the nine months ended
September 30, 2000. In 1999 and prior periods, we recognized this revenue solely in the third and fourth quarters, as the books,
magazine and application CDs containing the colleges' marketing materials were delivered. In 2000, inclusion of the colleges'
marketing information and applications on our Review.com Web site became a much more significant aspect of the services being
rendered to these customers. This alteration in the mix of services being rendered requires us to recognize this revenue over the
12-month period that this information is maintained on our Web site. Accordingly, we now recognize this revenue ratably over the
course of the year, beginning in the third quarter when the marketing information is first delivered. The decrease in revenue recognized
from college marketing fees was partially offset by an increase in Internet-based advertising revenue from approximately $375,000 in
1999 to approximately $1.0 million in 2000.
Homeroom.com's revenue was $3.1 million for both periods. Revenue from McGraw-Hill for workbook development fees declined by
approximately $334,000, which was offset by increased royalty revenue. We began selling our Homeroom.com Internet-based
subscription service in the third quarter of 2000. Accordingly, revenue from subscription fees for this product have not been significant
to date.
Cost of Revenue
Our total cost of revenue increased from $9.0 million in 1999 to $10.3 million in 2000, representing a 15% increase.
Instruction and Guidance cost of revenue increased from $7.3 million in 1999 to $8.9 million in 2000, representing a 22% increase.
This increase resulted from an increase of approximately $641,000 in the cost of delivering our courses, due in part to increased
enrollment, and an increase of approximately $942,000 in the cost of materials sold to our independent franchises. The increase in the
cost of materials sold resulted primarily from increased sales in 2000 and the reduction of accruals of approximately $390,000.
Review.com's cost of revenue decreased from $817,000 in 1999 to $799,000 in 2000, representing a 2% decrease. This decrease
corresponds to the decrease in revenue recognized from college marketing fees resulting from the change in the timing of the
recognition of that revenue.
Homeroom.com's cost of revenue decreased from $801,000 in 1999 to $620,000 in 2000, representing a 23% decrease. This decrease
is primarily attributable to lower sales of workbooks to McGraw-Hill during 2000.
40
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Operating Expenses
Selling general and administrative expenses increased from $18.7 million in 1999 to $40.4 million in 2000, representing a 116%
increase. The largest component of this increase was the cost associated with the termination of our PSU and SAR plans and the
related distribution of our stock and the stock of Student Advantage to our employees in April 2000. These events resulted in a
non-recurring charge of approximately $10.6 million in 2000. The remaining $11.1 million increase was caused by the following:
- an increase of approximately $4.1 million in salaries and payroll taxes primarily related to new product development and sales efforts
for Princeton Review Online, Homeroom.com and Review.com;
- an increase of approximately $2.7 million in advertising and marketing expenses;
- increased legal expenses of approximately $824,000 and settlement costs of approximately $1.2 million related to a lawsuit against
us;
- an increase of approximately $1.7 million attributable primarily to personnel related costs, including office rent, travel and
entertainment, employee benefits and recruiting fees; and
- an increase in Web site technology and development expenses of approximately $577,000 resulting from the development of our
Homeroom.com and Review.com Web sites.
Research and development costs decreased from $519,000 in 1999 to $421,000 in 2000, representing a 19% decrease. This decrease
resulted primarily from an increased focus on the development of our Princeton Review Online courses. Many of the costs associated
with the development of these courses were capitalized in 2000, which resulted in a lower expense in 2000.
Gain on Distribution/Sale of Securities and Other Assets
2002. EDGAR Online, Inc.
We recorded a gain of $7.6 million in the first half of 2000, related to the distribution of Student Advantage stock to our stockholders
and employees in connection with our restructuring.
Interest Expense
Interest expense increased from $44,000 in 1999 to $105,000 in 2000, representing a 138% increase. This increase resulted from
increases in both equipment lease balances and balances outstanding under our credit facility.
Other Income
Other income increased from $42,000 in 1999 to $473,000 in 2000, representing a 1,024% increase. This represents interest income
earned on the company's cash balances which increased substantially in the second quarter of 2000 as a result of the proceeds received
from the sale of our Series A preferred stock.
COMPARISON OF YEARS ENDED DECEMBER 31, 1999 AND 1998
Revenue
Our total revenue increased from $33.7 million in 1998 to $40.3 million in 1999, representing a 19% increase.
Instruction and Guidance revenue increased from $28.3 million in 1998 to $29.9 million in 1999, representing a 6% increase. This
increase resulted from an increase in student enrollment and price increases at our company-operated and franchise locations. Tuition
revenue from our company-owned operations increased by approximately $672,000, and royalties from independent franchises
41
46
increased by approximately $668,000. Enrollment at all locations increased by a total of more than 10,000 students in 1999.
Review.com's revenue increased from $4.5 million in 1998 to $5.3 million in 1999, representing an 18% increase. This increase
resulted primarily from fees charged to colleges for various marketing services and our electronic student application, APPLY! CD.
These fees increased from approximately $300,000 in 1998 to approximately $980,000 in 1999, representing an increase of
approximately 227%.
Homeroom.com's revenue increased from $959,000 in 1998 to $5.1 million in 1999, representing a 433% increase. This increase
resulted from a full year of rendering services to McGraw-Hill in 1999, as compared with a partial year in 1998.
Cost of Revenue
Our total cost of revenue increased from $11.9 million in 1998 to $13.2 million in 1999, representing an 11% increase.
Instruction and Guidance cost of revenue remained relatively constant during this period.
Review.com's cost of revenue decreased from $1.7 million in 1998 to $1.5 million in 1999, representing a 12% decrease. This
decrease resulted from a decrease of approximately $200,000 in content development costs primarily due to lower costs resulting from
the delivery of fewer manuscripts in 1999 compared to 1998.
Homeroom.com's cost of revenue increased from $384,000 in 1998 to $1.9 million in 1999, representing a 406% increase. This
increase resulted from an increase of approximately $1.4 million in expenditures for developing content for McGraw-Hill.
Operating Expenses
Selling, general and administrative expenses increased from $22.0 million in 1998 to $28.8 million in 1999, representing a 31%
increase. This increase resulted primarily from personnel and related cost increases during 1999 of approximately $2.2 million and a
compensation expense increase of nearly $3.0 million relating to the PSU and SAR plans. Most of the personnel and related cost
increases were attributable to staffing for new initiatives, such as Homeroom.com's Internet-based product, Princeton Review Online
and Review.com's selling and marketing efforts. In 1999, we booked approximately $3.0 million of compensation expense related to
the PSU and SAR plans, compared to approximately $18,000 for compensation expense booked in 1998. This increase resulted
primarily from increased vesting of outstanding PSUs and an increase in the value of the PSUs, which was based on the value of our
2002. EDGAR Online, Inc.
company at that time. The increased selling, general and administrative expenses also resulted from an increase of approximately
$895,000 in advertising spending, an increase of approximately $1.0 million in software development expenses and an increase of
approximately $522,000 in amortization expense, all related to developing and promoting our new Internet-based products. These
increases were partially offset by a decrease of approximately $255,000 in postage and shipping expenses and a decrease of
approximately $290,000 in bad debts, due to a large one-time write down effected in 1998.
Research and development expense decreased from $1.2 million in 1998 to $878,000 in 1999, representing a 25% decrease. This
decrease resulted from cost cutting efforts implemented during this period.
Gain on Distribution/Sale of Securities and Other Assets
Gain from the sale of assets increased from $732,000 in 1998 to $1.0 million in 1999, representing a 43% increase. This increase was
due to an increase of approximately $466,000 in
42
47
gains on sales of Student Advantage stock, offset by a decrease of approximately $150,000 in gain on sale of other assets, as no other
assets were sold in 1999.
Interest Expense
Interest expense decreased from $148,000 in 1998 to $88,000 in 1999, representing a 40% decrease. This decrease was due to lower
average loan balances during 1999 compared to 1998.
Other Income
Other income increased from $79,000 in 1998 to $90,000 in 1999, representing a 14% increase. This increase resulted primarily from
an increase in interest income caused by a higher average cash balance during 1999 compared to 1998.
COMPARISON OF YEARS ENDED DECEMBER 31, 1998 AND 1997
Revenue
Our total revenue increased from $32.5 million in 1997 to $33.7 million in 1998, representing a 4% increase.
Instruction and Guidance revenue increased from $27.4 million in 1997 to $28.3 million in 1998, representing a 3% increase. This
increase resulted from an increase in student enrollment and price increases at our company-operated and franchise locations. Tuition
revenue from our company-owned operations increased by approximately $1.3 million, and royalties from independent franchises
increased by $124,000. Enrollment in all locations increased by a total of more than 5,000 students in 1998. This increase was partially
offset by a decrease of approximately $480,000 in the sale of course materials and other products, resulting primarily from a decrease
in the per-unit prices charged by us for many of these materials reflecting lower costs to us to manufacture and assemble these
materials.
Review.com's revenue decreased from $5.1 million in 1997 to $4.5 million in 1998, representing a 13% decrease. This decrease
resulted from a decrease of approximately $900,000 in content development revenue due primarily to a decrease in the number of
book manuscripts delivered to Random House during 1998 compared to 1997. This decrease was partially offset by an increase of
approximately $300,000 in marketing fees charged to colleges.
Homeroom.com's revenue was $959,000 in 1998. This division was started in the latter half of 1998 when we began rendering services
to McGraw-Hill's textbook publishing companies.
Cost of Revenue
Our total cost of revenue decreased from $13.3 million in 1997 to $11.9 million in 1998, representing a 10% decrease.
Instruction and Guidance cost of revenue decreased from $10.6 million in 1997 to $9.8 million in 1998, representing a 7% decrease.
This decrease resulted from a decrease of approximately $800,000 in costs of the course materials sold due to lower costs to print and
assemble the materials, which was partially offset by an increase of approximately $100,000 in the cost of delivering courses.
2002. EDGAR Online, Inc.
Review.com's cost of revenue decreased from $2.7 million in 1997 to $1.7 million in 1998, representing a 38% decrease. This
decrease resulted from a decrease of approximately $700,000 in content development costs, which was primarily due to lower costs
resulting from the delivery of fewer manuscripts in 1998 compared to 1997, and a decrease of approximately $300,000 in costs
primarily related to lower manufacturing costs for our APPLY! CD.
Homeroom.com's cost of revenue was $384,000 in 1998 as a result of commencing operations in the second half of 1998.
43
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Operating Expenses
Selling, general and administrative expenses increased from $17.9 million in 1997 to $22.0 million in 1998, representing a 23%
increase. This increase resulted from an approximately $2.5 million increase in salaries due to increased staff and adjustment of
salaries to competitive levels in many areas of the company, including service centers such as accounting, information technology and
human resources, which had been experiencing high employee turnover, as well as increases in other related expenses such as office
rent, travel and entertainment, payroll taxes and health insurance, which increased proportionately as headcount increased. In addition,
in 1998, we incurred approximately $550,000 of legal expenses related to the defense of a lawsuit against us.
Research and development expense increased from $1.0 million in 1997 to $1.2 million in 1998, representing a 16% increase. This
increase was primarily due to the development of new materials for courses, which were restructured to be shorter in length and
accommodate smaller classes.
Gain on Distribution/Sale of Securities and Other Assets.
Gain from the sale of assets increased from $523,000 in 1997 to $732,000 in 1998, representing a 40% increase. The increase resulted
primarily from greater gains from sales of Student Advantage stock in 1998.
Interest Expense
Interest expense decreased from $157,000 in 1997 to $148,000 in 1998, representing a 6% decrease. This decrease was due to lower
average loan balances during 1998 compared to 1997.
Other Income
Other income decreased from $86,000 in 1997 to $79,000 in 1998, representing an 8% decrease. This decrease resulted primarily from
a decrease in interest income caused by lower cash balances during 1998 compared to 1997.
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QUARTERLY RESULTS OF OPERATIONS
The following table presents unaudited statement of operations data for each of the eight quarters in the period ended September 30,
2000. This information has been derived from our historical consolidated financial statements. You should read this information in
conjunction with our historical consolidated financial statements and related notes appearing elsewhere in this prospectus.
2002. EDGAR Online, Inc.
QUARTER ENDED
-----------------------------------------------------------------------------------------
DEC. 31, MARCH 31, JUNE 30, SEPT. 30, DEC. 31, MARCH 31, JUNE 30, SEPT. 30,
1998 1999 1999 1999 1999 2000 2000 2000
-------- --------- -------- --------- -------- --------- -------- ---------
(IN THOUSANDS)
(UNAUDITED)
Revenue
Instruction and Guidance............. $ 5,121 $6,729 $6,982 $ 9,933 $ 6,257 $ 7,857 $ 8,537 $10,889
Review.com........................... 1,104 677 1,170 2,046 1,395 795 1,155 1,806
Homeroom.com......................... 527 555 1,163 1,416 1,979 686 1,204 1,225
------- ------ ------ ------- ------- ------- -------- -------
Total revenue...................... 6,752 7,961 9,315 13,395 9,631 9,338 10,896 13,920
------- ------ ------ ------- ------- ------- -------- -------
Cost of revenue
Instruction and Guidance............. 2,066 2,344 2,709 2,285 2,420 2,584 3,072 3,266
Review.com........................... 516 4 233 580 652 81 318 400
Homeroom.com......................... 211 92 206 504 1,141 195 120 306
------- ------ ------ ------- ------- ------- -------- -------
Total cost of revenue.............. 2,793 2,440 3,148 3,369 4,213 2,860 3,510 3,972
------- ------ ------ ------- ------- ------- -------- -------
Gross profit....................... 3,959 5,521 6,167 10,026 5,418 6,478 7,386 9,948
Operating expenses
Selling, general and
administrative..................... 6,786 6,064 5,847 6,836 10,068 9,328 20,477 10,622
Research and development............. 187 114 150 255 359 165 52 204
------- ------ ------ ------- ------- ------- -------- -------
Total operating expenses........... 6,973 6,178 5,997 7,091 10,427 9,493 20,529 10,826
------- ------ ------ ------- ------- ------- -------- -------
Operating income (loss) from
continuing operations................ (3,014) (657) 170 2,935 (5,009) (3,015) (13,143) (878)
------- ------ ------ ------- ------- ------- -------- -------
Gain on distribution/sale of
securities and other assets.......... 583 -- -- -- 1,049 7,597 -- --
Interest expense...................... (50) (14) (22) (9) (43) (33) (36) (35)
Other income.......................... 61 24 6 12 48 42 229 202
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations before minority interests,
equity interest in operations of
affiliates and (provision) benefit
for income taxes..................... (2,420) (647) 154 2,938 (3,955) 4,591 (12,950) (711)
------- ------ ------ ------- ------- ------- -------- -------
Minority interests' share of income in
subsidiaries......................... 76 (93) 52 (472) (72) (50) -- --
Equity interest in operations of
affiliates........................... -- -- -- -- -- 165 36 (541)
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations before (provision) benefit
for income taxes..................... (2,344) (740) 206 2,466 (4,027) 4,706 (12,986) (1,252)
------- ------ ------ ------- ------- ------- -------- -------
(Provision) benefit for income
taxes................................ (177) 16 (4) (71) 110 (364) 6,311 584
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations........................... (2,521) (724) 202 2,395 (3,917) 4,342 (6,675) (668)
------- ------ ------ ------- ------- ------- -------- -------
Loss from discontinued operations..... (91) -- -- -- -- -- -- --
Income on disposal of discontinued
software division.................... 267 -- -- -- -- -- -- --
------- ------ ------ ------- ------- ------- -------- -------
Net income (loss)..................... $(2,345) $ (724) $ 202 $ 2,395 $(3,917) $ 4,342 $ (6,675) (668)
======= ====== ====== ======= ======= ======= ======== =======
2002. EDGAR Online, Inc.
AS A PERCENTAGE OF TOTAL REVENUE
-----------------------------------------------------------------------------------------
Revenue:
Instruction and Guidance............. 75.8% 84.5% 75.0% 74.2% 65.0% 84.2% 78.4% 78.2%
Review.com........................... 16.4 8.5 12.5 15.3 14.5 8.5 10.6 13.0
Homeroom.com......................... 7.8 7.0 12.5 10.5 20.5 7.3 11.0 8.8
------- ------ ------ ------- ------- ------- -------- -------
Total revenue...................... 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0
------- ------ ------ ------- ------- ------- -------- -------
Cost of revenue:
Instruction and Guidance............. 30.6 29.4 29.1 17.1 25.1 27.7 28.2 23.5
Review.com........................... 7.6 0.1 2.5 4.3 6.8 0.8 2.9 2.9
Homeroom.com......................... 3.1 1.2 2.2 3.8 11.8 2.1 1.1 2.2
------- ------ ------ ------- ------- ------- -------- -------
Total cost of revenue.............. 41.4 30.7 33.8 25.2 43.7 30.6 32.2 28.5
------- ------ ------ ------- ------- ------- -------- -------
Gross profit....................... 58.6 69.3 66.2 74.8 56.3 69.4 67.8 71.5
Operating expenses:
Selling, general and
administrative..................... 100.5 76.2 62.8 51.0 104.5 99.9 187.9 76.3
Research and development............. 2.8 1.4 1.6 1.9 3.7 1.8 0.5 1.5
------- ------ ------ ------- ------- ------- -------- -------
Total operating expenses........... 103.3 77.6 64.4 52.9 108.2 101.7 188.4 77.8
------- ------ ------ ------- ------- ------- -------- -------
Operating income (loss) from
continuing operations................ (44.6) (8.3) 1.8 21.9 (52.0) (32.3) (120.6) (6.3)
------- ------ ------ ------- ------- ------- -------- -------
Gain on distribution/sale of
securities and other assets.......... 8.6 -- -- -- 10.9 81.4 -- --
Interest expense...................... 0.9 0.3 0.1 0.1 0.5 0.7 2.1 1.5
Other income.......................... (0.7) (0.2) (0.2) (0.1) (0.4) (0.3) (0.3) (0.3)
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations before minority interests,
equity interest in operations of
affiliates and (provision) benefit
for income taxes..................... (35.8) (8.2) 1.7 21.9 (41.1) 49.2 (118.9) (5.1)
------- ------ ------ ------- ------- ------- -------- -------
Minority interests' share of income to
subsidiaries......................... 1.1 (1.2) 0.6 (3.5) (0.7) (0.5) -- --
------- ------ ------ ------- ------- ------- -------- -------
Equity interest in operations of
affiliates........................... -- -- -- -- -- 1.8 (0.3) (3.9)
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations before (provision) benefit
for income taxes..................... (34.7) (9.4) 2.3 18.4 (41.8) 50.5 (119.2) (9.0)
------- ------ ------ ------- ------- ------- -------- -------
(Provision) benefit for income
taxes................................ (2.6) 0.2 -- (0.5) 1.1 (3.9) 57.9 4.2
------- ------ ------ ------- ------- ------- -------- -------
Income (loss) from continuing
operations........................... (37.3) (9.2) 2.3 17.9 (40.7) 46.6 (61.3) (4.8)
------- ------ ------ ------- ------- ------- -------- -------
Loss from discontinued operations..... (1.3) -- -- -- -- -- -- --
Income on disposal of discontinued
software division.................... 4.0 -- -- -- -- -- -- --
------- ------ ------ ------- ------- ------- -------- -------
Net income (loss)..................... (34.6)% (9.2)% 2.3% 17.9% (40.7)% 46.6% (61.3)% (4.8)%
======= ====== ====== ======= ======= ======= ======== =======
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Revenue
Instruction and Guidance. During the eight quarterly periods presented, our Instruction and Guidance revenue has increased in each
quarter relative to the corresponding quarter of the previous year. Instruction and Guidance revenue has also increased during the third
quarter of each of 1999 and 2000 relative to the other quarters in those years, reflecting student preferences to take test preparation
courses at the beginning of the traditional school year or in the summer. Historically, Instruction and Guidance revenue has decreased
in the fourth quarter due to holidays and school vacations.
Review.com. Review.com's revenue has historically been comprised primarily of revenue from our publishing contracts with Random
House, with the exception of the approximately $1 million in college marketing fees recorded in the third quarter of 1999, which
accounted for the increase in revenue during that period. The historical quarterly fluctuations in revenue received from Random House
have resulted primarily from the timing of advances received by us for new books, which we recognize when manuscripts for the new
titles are delivered. The timing of new book contracts and the recognition of the advances associated with these contracts has been
dependent on Random House's publishing schedules. These schedules have not followed a pattern from year to year or quarter to
quarter. Beginning with new book contracts entered into after January 1, 2000, we earn a smaller initial advance upon delivery of a
new title, but begin to earn royalties from the first sales of the books. Previously, we received a larger initial advance, but earned
royalties only after the initial advance was earned out. During the first three quarters of 2000, this division recorded increasing revenue
from advertising on the Review.com Web site, as compared with the same periods in 1999. Finally, in the third quarter of 2000, we
recognized approximately $274,000 in college marketing fees, as compared with the third quarter of 1999, during which we
recognized approximately $980,000. This was due primarily to the move to Internet-based college marketing services as described
under "-- Comparison of Nine Months Ended September 30, 2000 and 1999."
2002. EDGAR Online, Inc.
Homeroom.com. The revenue earned by our Homeroom.com division during the eight quarterly periods presented is comprised almost
entirely of fees earned from our contract with McGraw-Hill. This revenue has been dependent on the timing of McGraw-Hill's
production requests which have not followed a pattern from year to year or quarter to quarter. We began earning subscription fees for
our Internet-based Homeroom.com subscription service in the third quarter of 2000, corresponding to the beginning of our sale of this
product in August 2000 and the beginning of the school year. To date, these fees have not been significant. We expect that this
Internet-based revenue will be recognized ratably over the terms of the subscriptions, which are expected to correspond to the school
year.
Cost of Revenue
Instruction and Guidance. Cost of revenue in this division has increased in each quarter presented relative to the corresponding quarter
of the previous year.
Review.com. Cost of revenue in this division fluctuates on a quarterly basis due to fluctuations in this division's revenue and the
revenue mix. In the fourth quarter of 1998 and the third and fourth quarters of 1999, Review.com revenue reflected a large percentage
of delivery-based fees for book advances, which have higher cost of revenue associated with them. In other quarters presented,
Review.com's revenue was comprised more heavily of performance-based fees and revenue from college marketing and advertising on
our Web site, which have much lower associated cost of revenue.
Homeroom.com. Cost of revenue in this division fluctuates on a quarterly basis due to fluctuations in this division's revenue and the
revenue mix. In the third and fourth quarters of 1999 and the third quarter of 2000, Homeroom.com's revenue was comprised more
heavily of fees for workbooks and question pool development, which have higher cost of revenue associated with them. By
comparison, revenue in the other quarters presented was comprised more heavily of royalties and the recognition of the fee associated
with the use of our trademarks, which do not have cost of revenue associated with them.
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Selling, General and Administrative Expenses
Payroll and payroll related expenses, which comprise a large percentage of selling, general and administrative expenses, have
generally increased throughout the periods presented, due in large part to increased staffing relating primarily to the expansion of our
Internet-based businesses. Major quarterly fluctuations that differ from this trend in the periods presented have resulted primarily from
compensation expenses associated with our SAR and PSU plans in the third and fourth quarters of 1999 and the first quarter of 2000
and a one-time charge associated with the termination of those plans in the second quarter of 2000.
As a result of the foregoing and other factors, we believe that quarter-to-quarter comparisons of our results are not necessarily
meaningful, and these comparisons should not be relied upon as indications of future performance. Fluctuations in operating results
may also result in volatility in the price of the shares of our common stock.
LIQUIDITY AND CAPITAL RESOURCES
Prior to 1995, our primary source of funding had been cash flow from operations. In 1995, we sold a minority interest in our
subsidiaries to Random House for approximately $8.0 million. We have also supplemented cash flow from operations by generating
cash from periodic sales of stock of Student Advantage owned by us. Cash from these sales totaled approximately $505,000 in 1997,
$625,000 in 1998 and $1,050,000 in 1999. In 1998, we received approximately $5.1 million from the sale of our software division. In
April 2000, we received approximately $27.3 million in gross proceeds from the sale of our Series A preferred stock. The expansion
of our Internet-based businesses has required increased amounts of expenditures in 1998, 1999 and the first nine months of 2000 and is
expected to require significant additional capital to fund operating losses, capital expenditures and working capital needs. We expect
our operating losses to continue and to increase for the foreseeable future. At September 30, 2000, we had approximately $11.6
million of cash and cash equivalents.
Net cash used by operating activities during the nine months ended September 30, 2000 was $9.3 million, resulting primarily from the
net loss from continuing operations. Net cash used in investing activities during the nine months ended September 30, 2000 was $7.7
million resulting primarily from the purchase of equipment and software and investment in affiliates. Net cash provided by financing
activities was $25.9 million during the nine months ended September 30, 2000 resulting primarily from proceeds received from the
sale of Series A preferred stock.
Net cash provided by operating activities during 1999 was $4.1 million, resulting primarily from advances on books to be delivered
2002. EDGAR Online, Inc.
and an increase in accrued expenses, partially offset by the increase in accounts receivable and operating losses net of depreciation and
amortization. Net cash used in investing activities during 1999 was $1.4 million and was primarily attributable to the purchase of
furniture, fixtures and equipment and investment in other assets, totaling approximately $2.3 million, partially offset by proceeds from
the sale of marketable securities of approximately $1.0 million. Net cash used in financing activities during 1999 was $1.6 million,
resulting primarily from the discontinuance of the student loan business, partially offset by proceeds from a line of credit.
Net cash used in operating activities during 1998 was $4.3 million, resulting primarily from an operating loss net of the gain on the
sale of our software division. Net cash provided by investing activities during 1998 was $4.8 million and was primarily attributable to
proceeds received from the sale of our software division. Net cash provided by financing activities during 1998 was $308,000,
resulting primarily from approximately $1.8 million in proceeds from the sale of our student loan business, partially offset by
approximately $1.4 million used to repay a line of credit.
Net cash used in operating activities during 1997 was $629,000, resulting primarily from an operating loss net of depreciation and
amortization and gains from the sale of securities and an increase in accounts receivable, partially offset by an increase in accrued
expenses. Net cash used in investing activities during 1997 was $1.2 million and was primarily attributable to the purchase of furniture,
fixtures and equipment, investment in other assets and purchase of non-marketable securities, totaling approximately $1.8 million,
47
52
partially offset by proceeds from the sale of non-marketable securities of approximately $505,000. Net cash provided by financing
activities during 1997 was $1.0 million, resulting primarily from borrowings under credit facilities and student loans.
Until October 2000 we maintained a discretionary line of credit with The Chase Manhattan Bank that provided for borrowings of up to
$1.5 million. Borrowings bore interest at the bank's prime rate plus 0.5%, which was 10% at September 30, 2000. To maintain this line
of credit, we paid an annual administrative fee of $15,000. Other terms were mutually agreed upon from time to time. As of September
30, 2000, no borrowings were outstanding under this line of credit.
In October 2000, we entered into a loan agreement with Excel Bank, N.A., providing for a $4,500,000 line of credit under which the
bank may make short term loans for the acquisition of our independent franchises and for working capital purposes. Amounts
borrowed under the credit facility bear interest at a variable annual interest rate equal to the prime rate plus 1% and the facility has a
commitment fee of 0.25% per year on the unused portion of the line of credit. The loan is secured by substantially all of our current
and future business assets, including membership interests in our subsidiaries, and is guaranteed by our subsidiaries. Under the terms
of the loan arrangement, we are required to provide the bank with periodic financial statements. In addition, the negative covenants
prohibit us from issuing dividends, creating liens or incurring any additional unsubordinated indebtedness for borrowed money. As of
October 31, 2000, $4.5 million was outstanding under the loan facility and the interest rate on outstanding borrowings was 10.5% per
year. We are required to prepay all outstanding borrowings under the loan facility within ten days after the completion of this offering.
At that time, the facility will terminate. If not prepaid earlier, the loan facility will expire on October 31, 2001. If we prepay the loan
before December 27, 2000, we will be required to pay the bank a penalty of $45,000.
We are currently in the process of negotiating with potential lenders with a view towards obtaining an additional revolving credit
facility. This credit facility would be used to finance a substantial portion of the purchase price of the acquisition of Princeton Review
of Boston and Princeton Review of New Jersey, as well as other franchises that we may agree to purchase in the future.
As of September 30, 2000, our principal capital commitments consisted of obligations outstanding under our long-term office and
classroom leases and several capital leases of computer equipment. We operate from leased premises in New York, California,
Georgia, Hawaii, Illinois, Ohio, Pennsylvania, Washington, Washington D.C., and Canada. As of September 30, 2000, our aggregate
minimum annual rental obligations under these leases were approximately $700,000 for 2000, $2.7 million for 2001 and $2.6 million
for 2002. As of September 30, 2000, our future minimum capital lease obligation payments were approximately $126,000 for 2000,
$593,000 for 2001 and 419,000 for 2002.
Our future capital requirements will depend on a number of factors, including market acceptance of our products and services and the
resources we devote to developing, marketing, selling and supporting our products. We expect to experience significant increases in
our operating expenses for the foreseeable future in order to execute our business plan. We expect to devote substantial capital
resources to:
- continued development and expansion of our Internet-based offerings;
- advertising, marketing and promotional activities;
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- hiring additional personnel in sales, marketing, Internet systems, product development and other areas; and
- the acquisition of Princeton Review of Boston and Princeton Review of New Jersey and the acquisition of the operations of any of
our other domestic franchisees with whom we are able to reach agreement on favorable terms.
We may also devote substantial capital resources to other strategic acquisitions and relationships.
Without the net proceeds of this offering, our capital resources will not be sufficient to meet our expected needs for working capital
and capital expenditures for the next 12 months. Therefore, if this offering is not
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completed, we will need to access other sources of financing to meet our needs. We believe that the net proceeds from this offering,
together with our line of credit, current cash and cash equivalents and any cash generated from operations, will be sufficient to fund
our operations for at least the next 24 months. Despite these expectations, we may need to raise additional capital before the end of the
next 24 months.
NEW ACCOUNTING PRONOUNCEMENTS
In December 1999, the Securities and Exchange Commission issued Staff Accounting Bulletin 101, or SAB 101, Revenue Recognition
in Financial Statements, which provides guidance on the accounting for revenue recognition. We are currently evaluating the
applicability of SAB 101 to our existing agreements. If we conclude that our approach is different from the approach described in SAB
101, we will change our method of accounting to comply with the provisions of SAB 101. For companies with fiscal years beginning
between December 16, 1999 and March 15, 2000, SAB 101, as amended, is required to be implemented no later than the fourth fiscal
quarter of 2000.
In June 1998, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 133, or SFAS 133,
Accounting for Derivative Instruments and Hedging Activities. SFAS 133 establishes new accounting and reporting standards for
derivative financial instruments and for hedging activities. SFAS 133 requires us to measure all derivatives at fair value and to
recognize them in the balance sheet as an asset or liability, depending on our rights or obligations under the applicable derivative
contract. We will adopt SFAS 133 no later than the first quarter of fiscal year 2001. As we do not currently engage in derivatives or
hedging transactions, SFAS 133 is not expected to have an impact on our consolidated results of operations, financial position or cash
flows.
In March 2000, the Financial Accounting Standards Board issued Interpretation No. 44, or FIN 44, Accounting for Certain
Transactions Involving Stock Compensation, an Interpretation of APB Opinion No. 25. FIN 44 clarifies the application of Opinion
No. 25 for (a) the definition of employee for purposes of applying Opinion No. 25, (b) the criteria for determining whether a plan
qualifies as a noncompensatory plan, (c) the accounting consequences of various modifications to the terms of a previously fixed stock
option or award and (d) the accounting for an exchange of stock compensation awards in a business combination. FIN 44 is effective
July 1, 2000, but certain conclusions cover specific events that occur after either December 15, 1998 or January 12, 2000. The
adoption of certain of the provisions of FIN 44 prior to March 31, 2000 did not have a material impact on our financial statements.
Management does not expect that the adoption of the remaining provisions will have a material effect on our financial statements.
In March 2000, the Emerging Issues Task Force issued EITF 00-3, Application of AICPA Statement of Position 97-2, Software
Revenue Recognition, to Arrangements That Include the Right to Use Software Stored on Another Entity's Hardware. EITF 00-3
clarifies the recognition of revenues by vendors who license software products where end users do not take possession of the software
but rather use the software on an as-needed basis over the Internet or via a dedicated line to the vendor's or some third party's
hardware. Management does not currently have any of these arrangements and does not currently anticipate licensing software in this
manner. Accordingly these provisions are not expected to have an impact on our financial statements.
YEAR 2000
The year 2000 issue is the result of computer-controlled systems using two digits rather than four to define the applicable year. For
example, certain computer programs that have time-sensitive software may recognize a date ending in "00" as the year 1900 rather
than the year 2000. This could result in system failure or miscalculations causing disruptions of operations.
To date, we have not experienced any material problems as a result of the year 2000 issue. Costs to ensure that our systems and
networks are year 2000 compliant have not been, and are not expected to be, material. We do, however, continue to monitor our
systems for year 2000 compliance, including testing of the compatibility of all new systems that we introduce into our existing
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infrastructure.
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BUSINESS
OVERVIEW
We help students and families achieve their educational and career goals, elementary and secondary schools maximize their
effectiveness, and colleges and graduate schools attract greater numbers of qualified applicants at lower cost. We leverage our
well-known and trusted Princeton Review brand and our 19 years of experience in providing students, parents and educators with
innovative, high quality educational products and services. We believe that we are one of the few branded education companies able to
deliver its products and services to multiple audiences through a variety of channels.
Our business is divided into the following three divisions:
- Instruction and Guidance delivers a range of services, including standardized test preparation for the SAT, GMAT, MCAT, LSAT,
GRE and other admissions tests, both online and in a classroom setting. Instruction and Guidance also offers admissions counseling
directly to students and through institutional relationships with high schools.
- Review.com operates a leading educational Web site that brings together potential applicants and their families, guidance counselors
and colleges and graduate schools to exchange information and facilitate the recruitment, application and admissions processes.
Review.com also authors over 150 print and software titles that are published by Random House, TIME Magazine and other
publishers.
- Homeroom.com offers an online subscription service for schools and families that provides academic assessment, remediation and
enrichment services to children in grades three through eight. Homeroom.com also creates Princeton Review branded content for use
in McGraw-Hill's textbooks and workbooks.
The Princeton Review was founded in 1981 by our Chairman and Chief Executive Officer, John Katzman, as an SAT preparation
course. Today, we believe we offer the leading SAT preparation course and are among the leading providers of test preparation
courses for most of the other major post-secondary and graduate admissions tests. In 1999, we and our franchisees provided courses to
more than 90,000 students in over 500 locations in the United States and abroad. We launched the first of our Princeton Review
Online courses in July 2000. In 1994, recognizing the potential of the Internet, we launched our Review.com Web site. Today, it is one
of the most widely used educational Web sites dedicated to post-secondary academic opportunities.
INDUSTRY BACKGROUND
The Traditional Education Industry
The education market is the second largest sector of the U.S. economy, with an estimated $700 billion, or approximately 10% of the
U.S. gross domestic product, spent on education in 1998, according to EduVentures LLC. The U.S. Department of Education
estimates that approximately $372 billion was spent in the United States during the 1998-1999 school year in the K-12 sector. The
U.S. Department of Education also estimates that during the 1999-2000 school year 53.5 million students were enrolled in over
111,000 public and private K-12 schools in more than 15,000 school districts.
According to the U.S. Department of Education, the higher education market in the United States consists of over 15 million full-time
and part-time undergraduate and graduate students at more than 4,000 university and college campuses. During the 1998-1999 school
year, institutions of higher education spent approximately $247 billion. On average, college graduates can expect to earn over 50%
more income and have an employment rate that is nearly 7% higher than those without college degrees. Recognizing that higher
education leads to greater rewards in the workforce, more people are choosing to continue their education, with enrollment in higher
education projected to increase by 14% by the year 2009.
Convergence of Internet Growth and Education
The Internet is becoming an increasingly important part of American education as students, parents and educators recognize its
potential as a powerful learning, communication and information resource.
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International Data Corporation estimates that instructional technology spending in the U.S. K-12 public school market will increase
from $2.9 billion in 1998 to $6.8 billion in 2003. According to a 1999 survey, the U.S. Department of Education found that 99% of
full-time public school teachers have access to computers or the Internet in their schools, and 66% of those teachers use computers or
the Internet for classroom instruction. The U.S. Department of Education estimates that in 1999, 95% of public schools were
connected to the Internet. As for the higher education market, Market Data Retrieval reports that in 1999 virtually every college
offered Internet access to its students. An International Data Corporation survey also indicates that almost 39% of U.S. households
currently subscribe to an online service.
Market Opportunity
We believe increased public concern over the effectiveness of K-12 schools in teaching basic academic skills has increased the
pressure on educators to improve overall student performance. As a result, over the past several years, a majority of states have begun
to implement high-stakes testing programs that hold teachers, principals and superintendents accountable for student performance.
According to market research we commissioned from Fox River Learning, Inc., 22 states now publicize the performance of individual
schools or reward them for high scores, and 32 states require students to score above a specified level in order to advance to the next
grade or to graduate. As a result, we believe that educators are increasingly looking for a means to improve measurable academic
performance and prepare students for these high-stakes assessments and that parents are seeking a convenient and time-efficient way to
participate in their children's education.
As students make the transition from high school to college, families discover that the college selection and admissions process can be
competitive, costly and complex. We estimate that more than $250 million was spent on test preparation courses in 1999. As an
increasing number of students seek guidance through the testing and application process, we believe many high schools find it
increasingly difficult to provide students with effective college and career counseling and are looking for ways to improve academic
counseling services. According to the National Center for Education Statistics, in 1997, the national student to counselor ratio in U.S.
public schools was 508:1. As students are devoting an increasing amount of resources to compete with one another for a limited
number of places at select institutions, our experience suggests that colleges and graduate schools are also competing with one another
to reach and enroll greater numbers of the most desirable prospects. To address these challenges, we find that students, parents and
schools are increasingly seeking a comprehensive, one-stop source of information and assistance in the testing, application and
admissions process.
THE PRINCETON REVIEW SOLUTION
We provide integrated online, print and classroom-based products and services that address the needs of students, parents, educators
and educational institutions. We have a well-known and trusted brand name founded on our experience and proven success in raising
students' standardized test scores and providing quality academic information. Instruction and Guidance provides intensive online and
classroom-based test preparation courses for the SAT, GMAT, MCAT, LSAT, GRE and other standardized tests, and also provides
tutoring and admissions counseling services. Review.com provides students and counselors with valuable information and assistance in
the application process and colleges and graduate schools with more effective ways to reach and enroll qualified applicants.
Homeroom.com offers an online subscription service designed to help primary school students and teachers prepare for state-mandated
assessments by providing them with real-time feedback that connects them to targeted preparation, remediation and enrichment
materials. Finally, we work with Random House, McGraw-Hill, TIME Magazine and others to provide content for guidebooks,
textbooks, magazines and software. Through our complementary products and services, we believe we offer the following benefits:
Benefits to Students
Improved admissions test scores. We enable prospective college and graduate school students to increase their scores on admissions
tests through our online and classroom-based courses and test preparation books and software. Using our proven test preparation
materials, we help our students increase their attractiveness
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to the institutions of their choice by improving scores on entrance exams, including the SAT, GMAT, MCAT, LSAT and GRE.
According to a study performed by Roper Starch Worldwide in 1994, the average student taking a Princeton Review SAT preparation
course improved his or her score by 140 points.
Convenient resource for college selection and application services. Through Review.com, we provide students with a central source
for comprehensive college and graduate school information and tools for managing the application process. Using our unique database
of school information, potential applicants can research school rankings, admissions requirements, student opinions and financial aid.
In 1999, we provided students with access to over 580 college applications online and through our APPLY! CD.
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Quality admissions counseling and advisory services. We provide college counseling services to students through our individual and
institutional programs. Princeton Review 121 is a one-to-one counseling and tutoring service that gives students personal attention in
the admissions process. We also offer high schools the opportunity to outsource or supplement existing admissions counseling services
with our highly trained counselors and tools, which we believe offers students better service and enhanced admissions outcomes.
Enhanced academic achievement. We work with schools' existing curricula to enable primary school students to maximize their
academic potential and prepare for state-mandated assessments through our Web-based Homeroom.com subscription service. Students
can review materials taught in school and improve on areas of weakness based on our individualized assessment. By leveraging our
experience in standardized test preparation, we can help students avoid the negative consequences of poor academic performance such
as summer school or grade repetition.
Benefits to Parents
Increased involvement in educational and admissions processes. Our online services enable parents to increase their involvement in
their children's education and college selection process in an easy and time-efficient manner. Homeroom.com allows parents to
directly monitor their children's academic performance and access resources customized for their children's academic needs at their
convenience. Using Review.com, parents can access information on specific colleges, the selection and admissions process, financial
aid, student loans and scholarships.
Trusted educational resource. We believe that The Princeton Review is one of the most trusted brands in educational products and
services based on our 19 year history and our reputation for providing quality standardized test preparation and college admissions
guidance. We believe that parents view us as a trusted resource to guide them and their children through important educational
transitions and feel confident in trusting their children's performance on standardized tests to our courses and our admissions
counseling and tutoring services.
Access to active community discussions. We provide focused, active discussion areas for parents to communicate and exchange
information with one another and with educational experts on a variety of topics related to academic and admissions issues.
Benefits to Educators and Educational Institutions
Improved college guidance programs in high schools. We help high schools improve their admissions counseling programs by
supplying quality online and offline resources. Review.com allows counselors to easily collect, review and communicate information
and monitor the progress of each application from a central place. In addition, through our institutional counseling program, we
provide support services directly to counselors or enable high schools to completely outsource their guidance programs to us.
Cost effective way for colleges and graduate schools to reach and enroll applicants. With hundreds of thousands of users accessing
Review.com for information, we enable colleges and graduate schools to reach and enroll a broader audience of potential students in a
more targeted, direct and cost-effective manner than other means currently available.
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Improved performance on state-mandated assessments. Through Homeroom.com, we assist schools in improving student and school
performance on state-mandated assessments. In an increasing number of states, poor performance can lead to reduced school funding
and diminished career opportunities for teachers and administrators, while higher scores can result in commendations, bonus pay and
career enhancement.
More efficient use of classroom time. We believe Homeroom.com is an efficient and effective tool for teachers to assess their students'
progress and to identify and correct areas of weakness. Homeroom.com provides an easy way to individualize instruction and ensure
that it is aligned with state standards while decreasing the time spent preparing for state-mandated assessments.
OUR STRATEGY
Our objective is to build upon the Princeton Review brand and expertise in our existing and related education and testing markets. The
key elements of our strategy include:
Defining and securing the next generation of test preparation. We plan to continue to expand our online test preparation services to
provide our students with a flexible, fully integrated package of online and classroom-based course offerings. This approach will
permit our students to choose the optimal mix of online and offline learning for their specific needs. This will also allow us to expand
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our proven test preparation services to students who currently are unable to attend classroom-based courses due to geographic, time or
social constraints, as well as deploy a range of products and services at more flexible and aggressive price points.
Building presence in the K-12 market. We intend to build the user base of Homeroom.com in the K-12 market by demonstrating
measurable improvement on high stakes state-mandated assessments. We plan to increase Homeroom.com usage by targeting schools
and districts through a combination of our strategic partnership with bigchalk.com, direct mail and our sales force, as well as marketing
Homeroom.com directly to parents. Because Homeroom.com is designed to become a part of daily academic routine, we believe that
teachers, students and parents will grow to rely on it, increasing the likelihood of subscription renewals.
Capitalizing on the network effect among students, parents, educators and schools on our Review.com Web site. We intend to
capitalize on our position as a leading provider of information and services for the college and graduate school admissions process to
attract greater numbers of students, parents, educators and schools to Review.com. By attracting additional students and parents, we
create more opportunities for educators and schools to reach this audience. In turn, by drawing more educators and schools to
Review.com, we create additional resources and information for students and parents. We believe that this network effect will increase
Review.com's value to each participant and allow us to take advantage of additional revenue-generating opportunities, including
increased revenue from educational institutions, higher price points for advertising and sponsorship and greater ability to cross-sell our
products.
Expanding institutional relationships. We seek to develop long-term relationships with educational institutions through our K-12
assessment, institutional admissions counseling, test preparation and admissions marketing services. We intend to target both public
and private educational institutions through a directed marketing effort. We believe that development of long-term relationships with
educational institutions will create high switching costs for our customers, encourage others to subscribe to our services and provide a
renewable revenue stream.
Increasing the cross-marketing of our products and services. We intend to more aggressively cross-market our products and services to
existing customers in order to more fully address their varied needs. For example, Homeroom.com will allow us to form relationships
with students and families that could later become users of our Review.com Web site and customers of our test preparation courses
when they begin the college selection process. Similarly, an educational institution that has purchased Homeroom.com would be a
targeted customer for our institutional counseling services. We believe that increased cross-marketing efforts will lead to greater
retention of customers and increased use of our new products by existing customers.
Broadening e-commerce and advertising initiatives. We intend to further leverage our large audience to generate additional sources of
online revenue. We believe that the demographics of students and their parents
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make them attractive to advertisers and e-commerce partners since many significant purchases, such as cars, computers and
furnishings, are made immediately prior to enrolling in college. We intend to aggressively market to corporate sponsors and
advertisers and to increase the number of educational products available through our Web sites by forming additional e-commerce
relationships.
OUR PRODUCTS AND SERVICES
Instruction and Guidance Division
In 1999, we and our franchisees provided test preparation courses and tutoring services to over 90,000 students in over 500 course
locations in 41 states and 11 countries. We provide test preparation courses to students taking the following major U.S. standardized
tests:
SAT LSAT (Law School Admissions Test)
GMAT (Graduate Management Admissions MCAT (Medical College Admissions
Test)
Test)
GRE (Graduate Record Examination) ACT (American College Test)
TOEFL (Test of English as a Foreign PSAT
Language)
USMLE (United States Medical SAT II
Licensing Examination)
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We recently launched Princeton Review 121, a one-to-one, high-end admissions counseling and tutoring service. Through this service,
we provide individual customers specific and concentrated assistance with test preparation and the college admissions process. We
have recently expanded our SAT, SAT II and ACT test preparation services to the institutional educational market by entering into
contracts with high schools and school districts to provide test preparation services to their students. We provided these services in
more than 80 high schools in 1999.
Our Classroom-Based Course Offerings
Our test preparation courses focus on customer service and quality instruction. Our experienced teachers and tutors work with groups
of no more than 12 students in our SAT classes and eight students in most of our graduate school classes. Our courses are intensive
and typically run five to 10 weeks in length. Every course consists of classes, workshops and practice tests. We teach students basic
skills and test-taking strategies during class and reinforce concepts taught in class and review homework during workshops. We offer
practice tests, taken under actual testing conditions, which we use to chart students' progress as they begin to apply our techniques.
We believe that an important part of our test preparation courses is the high quality study materials and the advanced diagnostic
analysis that our students receive. We spend significant resources on research and development to enhance the supplemental materials
used in our courses. As a result, each of our students receives in-depth analytical materials, sample questions, testing drills, model
exams and diagnostic analysis of their progress as they take the course.
Our Online Course Offerings
We have developed the following online products to supplement our classroom-based courses and to serve as fully functional
stand-alone online test preparation courses:
- Tester. Tester is a computer adaptive testing engine we developed for offering online testing and diagnostic services. Students taking
our courses can log on to our PrincetonReview.com Web site, review sample questions and take full-length preparatory exams that
simulate actual exams. Tester also analyzes the students' results and tracks their progress.
- Online tools integrated into classroom-based courses. Our traditional test preparation courses offer students the option to complete
drills and answer sample questions online as well as take model
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exams over the Internet through the Tester service. Students can also communicate with us directly through the Internet.
- Princeton Review Online courses. In July 2000, we launched Princeton Review Online to provide an alternative to our
classroom-based courses. Princeton Review Online courses follow the classroom-based course syllabus and include asynchronous and
on-demand synchronous interactive "classes," scheduled small-class real time workshops with our instructors, live customer service
available 24 hours per day, seven days per week and our Tester service. Princeton Review Online courses are currently available for
the SAT, GMAT, LSAT and GRE, with additional courses expected to follow.
Our Institutional Counseling Services
We provide individuals experienced in counseling high school students about post-secondary academic choices to high schools on an
outsourced or supplemental basis. We are providing these college counseling services in all seven high schools operated by Edison
Schools. Our services in this area include college admissions expertise, applications and record-keeping, student and parent seminars
and increased access to college admissions officers. We expect to expand our institutional counseling program to a total of
approximately 20 high schools in the fall of 2001.
Review.com Division
Our Review.com Web site
Review.com is one of the most widely used educational Web sites dedicated to post-secondary academic opportunities. Review.com
helps students, parents and educational institutions by providing a comprehensive source of information on colleges and graduate
schools, the school selection and admissions process, financial aid, student loans, scholarships and careers. Review.com also offers a
number of interactive tools designed to assist students in finding a school, submitting an application and researching financing options.
At the site, prospective college and graduate school students can also participate in discussion groups or order one of our more than
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150 print and software titles. According to PC Data Online, for the month of October 2000 Review.com had approximately 954,000
unique users and over 15 million total page views.
The following are some of the major services and tools available to the various users of our Review.com Web site:
Students. Students have access to the following resources:
- Search. Our search engine allows students to evaluate colleges and graduate schools based on different criteria, from average
admissions test scores to our quality-of-life ratings. The result is a list of the schools that match their needs and detailed information
about each, including, in many cases, students' opinions of their schools' faculty, workload, social life, sports and more. Each college
or graduate school's profile includes links to its Web site.
- College and graduate school admissions discussion. We allow students to share college and graduate school admissions experiences
and obtain advice from Princeton Review moderators.
- Counselor-O-Matic. With this tool, students can assess their chances of admission to colleges and graduate schools they are
interested in. They complete a profile from which we create three custom lists of schools based on their responses: "safety schools,"
"ballpark schools" and "reach schools." They can also use this tool to rate their own statistics against the average for each school.
- My Schools. Students can use this personalized portfolio to help them track the colleges or graduate schools they are interested in
and the numerous dates and deadlines that characterize the admissions process. An e-mail reminder feature is available to notify
students of significant events. Students can also allow counselors, advisers and parents access to their personalized accounts.
- APPLY. We enable students to access hundreds of college and graduate school-specific admissions applications, including
instructions to financial aid forms, teacher recommendations and counselor
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reports. APPLY allows students to enter personal information once and automatically repeats common information in each application
they choose. Students complete applications on their computers and either print and mail them to the college or graduate school or
transmit them electronically.
Counselors. With the launch of APPLY, we introduced our first set of online counselor tools. Students are able to allow their
counselors to be actively involved in the application management process. Counselors can view the progress of all of their students,
send targeted messages to individuals or groups and suggest customized lists of colleges.
Colleges. Review.com sells a number of marketing, recruiting, and application products and services to colleges. We allow them to tie
their applications to the centralized databases of the Review.com Web site and the APPLY! CD. This allows students to reduce
repetitive data entry and makes it easier to apply. Colleges may also include a customized profile in our books and in a section of our
Web site entitled "school says." They may list themselves in the TIME Magazine/The Princeton Review's co-branded newsstand
guide, The Best College For You. Finally, colleges may update their information online and monitor the progress of student interest in
them and their applications.
Content Development Services
Review.com also develops content and authors more than 150 print and software titles under The Princeton Review brand. Our books
are sold primarily through Random House, from which we collect fees from advances, royalties, and editing and marketing
arrangements. We also provide content to The Learning Company for use in its software and collect royalties on its sales. Examples of
the books, magazines and educational software products developed by the Review.com division include the following:
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TOPIC TITLES
----- ------
Test Preparation Books Cracking the SAT
Cracking the GMAT
Cracking the GRE
College and Graduate School Guides TIME Magazine/The Princeton Review's
The Best College For You
The Best 331 Colleges
The Complete Guide to Business
Schools
General Reference Publications WordSmart
WordSmart, Jr.
MathSmart
The Anatomy Coloring Workbook
Test Preparation and Educational Software The Princeton Review: Inside the SAT,
ACT and PSAT 2000 Edition
Homeroom.com Division
Our Homeroom.com Web Site
Homeroom.com, our new Web-based subscription service, is designed to help primary and secondary school students improve
outcomes on state-mandated assessments and maximize their overall academic performance. Homeroom.com, is currently focused on
math and reading in grades three through eight. We began selling Homeroom.com commercially in August 2000. It is currently
available nationally, with state-specific content available for 24 states. In 2001, we intend to make Homeroom.com available in
additional states with state-specific content and add content for other grade levels.
Homeroom.com enables teachers and parents to quickly assess students' academic strengths and weaknesses and provides immediate
feedback and tailored educational resources for improving performance.
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Homeroom.com is aligned to state standards and works with existing curricula and lesson plans, thereby allowing teachers to focus
more on curriculum and less on specific test preparation. Homeroom.com offers a large and growing library of practice test questions
written to correspond to the requirements of applicable state proficiency exams. The questions are also designed to correspond to the
student's grade level, the curriculum being taught and the primary textbook being used.
In addition to a large pool of test questions and drills, Homeroom.com offers its users various educational resources that can be used
for both general enrichment and targeted remediation. These resources include:
- links directly to relevant, targeted content on other educational Web sites; and
- original Homeroom.com lessons designed specifically to address areas of weakness identified in the testing and assessment phase and
to reinforce curriculum objectives.
Homeroom.com offers the following services to three distinct groups of users:
Student.homeroom.com allows students to:
- view and keep track of the status of their assignments;
- practice skills being covered by their curriculum through individualized assignments created by their teachers or existing drills
designed to correspond to state-mandated assessments;
- assess their understanding of the material and areas of weakness;
- focus on areas that need improvement by doing more drills or accessing Homeroom.com's database of skill-based exercises,
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including proprietary Homeroom.com lessons, and direct links to Web-based resources specific to the problems identified;
- access a variety of resources for learning, including Web links, books, software and proprietary Homeroom.com lessons; and
- communicate with other students in the class and their teachers through e-mail.
Parent.homeroom.com allows parents to:
- see what their child is learning in school and at home in one convenient location;
- view recent assignments and skills that are covered by their child's curriculum;
- explore suggested resources and other learning materials that they and their child can investigate together;
- access a database of teaching tips when they and their child identify a skill that needs improvement; and
- purchase a broad range of products that can benefit their child's educational development.
Teacher.homeroom.com allows teachers to:
- create assignments and tests online, assign projects on a group or an individualized basis and keep track of the status of their
assignments;
- assess how their students are progressing as a class or individually;
- suggest remediation and enrichment strategies based on identified weaknesses;
- access professional development resources; and
- access a variety of resources for teaching their material, including Web links, books, software, and proprietary Homeroom.com
lessons for teachers, students and parents that reinforce their curriculum objectives.
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Content Development Services
Through our Homeroom.com division, we also develop content and provide editorial review services for McGraw-Hill's educational
publishing units. Through this exclusive arrangement, our Princeton Review branded content is placed in McGraw-Hill's textbooks and
workbooks and distributed to K-12 schools throughout the country.
STRATEGIC INVESTMENTS AND ACQUISITIONS
We have made a number of strategic investments that we hope will facilitate the growth of our business and expand our presence on
the Internet. We currently maintain ownership interests in the following companies:
- Student Advantage, Inc. We invested in Student Advantage, a publicly owned college marketing company, in 1995 and owned
approximately 2.2% of its outstanding stock, as of July 31, 2000. As of October 31, 2000, the aggregate public market value of our
stock of Student Advantage was $2,981,089. In addition, we maintain a strategic relationship with Student Advantage, which gives us
the right to use some of its content on our Review.com Web site and to serve as its exclusive test preparation provider. Under a recent
agreement, Student Advantage also sells advertising space on Review.com.
- Student Monitor, L.L.C. We currently own approximately 20% of Student Monitor, a privately held company that is a surveyor of
college students' lifestyles and attitudes. We also participate in joint surveys with Student Monitor and use its survey information for
product development and marketing efforts.
- Tutor.com, Inc. Tutor.com, a privately held company we co-founded in 1998, matches students with tutors, both online and offline,
through its database of tutor backgrounds and references. We currently own approximately 20% of Tutor.com and engage in various
joint marketing arrangements, including banner advertisements and mutual graphical links between our Web sites. We use our
relationship with Tutor.com to facilitate our own online admissions counseling and tutoring services. In addition, Tutor.com has
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agreed not to enter into an agreement or transact business with any entity that is involved in our principal lines of business.
From time to time, we will seek to make additional investments in businesses with which we want to build strategic relationships. We
also intend to pursue strategic acquisitions that will help us continue to increase our Internet presence, expand our product offerings or
grow geographically. We expect our acquisition focus to be on companies with complementary products or services.
We recently completed the acquisition of two of our independent franchises, Princeton Review of Hawaii and Princeton Review of
Quebec, and have entered into an option agreement allowing us to purchase two additional franchises Princeton Review of Boston and
Princeton Review of New Jersey. For a description of the terms of this agreement, see "Our Franchised Operations and Our Plans to
Acquire Our Domestic Franchises -- Option Agreement to Purchase Two of Our Independent Franchises." We are also in the process
of negotiating with a number of our other independent franchise holders regarding our potential acquisition of their franchises. If we
acquire Princeton Review of Boston and Princeton Review of New Jersey or any of our other franchises, we expect to use a portion of
the proceeds from this offering to consummate the acquisitions. We anticipate that purchases of other franchises, if consummated,
would involve some combination of cash, debt and the issuance of our stock. Currently, we do not have any agreements or
commitments to purchase any of our independently operated franchises other than our option agreement to purchase Princeton Review
of Boston and Princeton Review of New Jersey.
SALES AND MARKETING
The majority of our students and their parents choose our test preparation programs based on the recommendations of other students,
other parents, teachers and counselors. We also build awareness of our
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brand and promote our products through relationships with other companies that publish and distribute our products. These include:
- TIME Magazine, which co-brands, publishes and distributes our The Best College For You newsstand guides;
- Random House, which publishes and distributes our test preparation books and trade books;
- McGraw-Hill, which publishes K-12 textbooks and workbooks that contain our branded materials; and
- The Learning Company, which publishes and distributes our content within its software.
We also maintain an institutional sales force and engage in some national and local advertising.
We expect to increase our sales and marketing efforts substantially in order to market our new offerings in the Instruction and
Guidance division, increase traffic on Review.com and promote and support our new Homeroom.com Web-based subscription service.
Our current and planned sales and marketing activities by division are as follows:
Instruction and Guidance. Nationally, we use mass print media, conferences, direct mail and electronic media to market our products
and services to students, parents and educators. Locally, we and our franchisees primarily advertise in local and school newspapers,
distribute posters and sponsor school activities. We also conduct extensive free information sessions and practice tests to expose our
products to our markets. Virtually everyone in our regional offices is part of the sales force. They and our regional phone centers
counsel students and parents regarding specific courses. Our Princeton Review 121 admissions counseling and tutoring initiative will
be marketed to high-end customers utilizing a distinctive message and dedicated marketing resources. Our Princeton Review Online
products will be marketed through electronic media and e-commerce partnerships, as well as through our classroom course marketing
efforts. We are presently building a national sales force to conduct sales of our test preparation and counseling services to schools and
other educational institutions. We expect that marketing to educational institutions will constitute a major focus of the marketing
activities of the Instruction and Guidance division.
Review.com. Review.com has a sales and marketing force of 10 people actively soliciting colleges and graduate schools to subscribe
to our APPLY! and APPLY! CD application services. We have built our user base and volume through branding in other media and
word-of-mouth. To attract users, we expect to increase marketing to students, parents, counselors and admissions officers through
offline and online direct mail, sponsorships, keyword buys and syndicated licensing of content. Additionally, we will seek to expand
our current strategic relationships with MSN, Student Advantage, Bolt and Vault.com and create new relationships with portals and
online communities.
Homeroom.com. We expect to market Homeroom.com to K-12 schools and school districts through a number of channels, including
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national conferences, direct mail, electronic media and telemarketing. In June 2000, we entered into a distribution agreement with
bigchalk.com, a company with a broad national distribution network in the K-12 educational market. Under this agreement,
bigchalk.com has the right, as our exclusive third party distributor, to sell our Homeroom.com online subscription service to K-12
educational institutions and also has the right to sell Homeroom.com subscriptions to users of bigchalk.com's Web sites on a
nonexclusive basis. We also intend to sell Homeroom.com subscriptions to K-12 educational institutions. The version of
Homeroom.com to be distributed either by us or by bigchalk.com to K-12 educational institutions will be co-branded. If bigchalk.com
fails to generate sales of subscriptions to Homeroom.com that meet prescribed benchmarks, its exclusivity will terminate.
The agreement provides that we and bigchalk.com will share revenue based on actual gross cash receipts from our and bigchalk.com's
sales of Homeroom.com subscriptions to K-12 educational institutions and bigchalk.com's sales of Homeroom.com subscriptions
through its Web sites. After June 1, 2001, either party may terminate the agreement upon 12 months prior notice. After termination of
the agreement, other than for bigchalk.com's breach, bigchalk.com may continue to sell subscriptions to Homeroom.com on a
nonexclusive basis for two years from the date of termination, so long as bigchalk.com does not develop, promote, sell or
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give away a product competitive with Homeroom.com. For two years after termination of the agreement, bigchalk.com will also
continue to receive its proportionate share of revenue from renewals of subscribers originated by bigchalk.com.
We also plan to sell Homeroom.com subscriptions directly to parents through distribution agreements with other Web sites and
through electronic and print media.
PRODUCT DESIGN AND DEVELOPMENT
We believe that successful product design, development and enhancement has been, and will continue to be, essential to the success of
our business. We believe that the strength of our reputation and brand name is directly attributable to the quality of our products, and
expect to continue to devote significant resources to enhancing our current products and offering additional high-quality products and
services that are responsive to our customers' needs.
Instruction and Guidance. We rely on our development staff, teachers and other education experts to create and refine the materials
used in our Instruction and Guidance division. Our goal is to design and improve our products in such a way as to offer our students
the best and most productive overall experience, while addressing their preferences and fitting within their lifestyles. We seek to
accomplish this by:
- continually updating and enhancing our test preparation materials and our teaching methods;
- ensuring that our designated personnel take virtually every major standardized test for which we offer courses, so that our techniques
and materials remain current;
- performing quantitative and qualitative research into the preferences and needs of our customers;
- regularly soliciting and reviewing feedback from students taking our courses; and
- enhancing the services and functionality of our online test preparation tools and content.
Our current focus in the Instruction and Guidance division is to develop and refine new products for our classroom courses, Princeton
Review 121 counseling and tutoring, Princeton Review Online and institutional counseling initiatives. Overall, we seek to provide a
complementary mix of online and offline offerings that students can choose from to best fit their needs and achieve their goals.
Review.com. Since launching our Review.com Web site in 1994, we have continually expanded the material available and made
improvements to its content and functionality. The informational materials and tools available on Review.com are developed and
enhanced by our authors and design engineers, through strategic partnerships with third parties and through feedback from guidance
and admissions counselors. We regularly modify and enhance our Web site to provide students, parents and guidance counselors with
additional interactive tools designed to assist them with the college selection and admissions process. We also continually strive to
provide our educational institution subscribers with more effective ways to reach potential applicants. Currently, we are focused on
providing more tools for potential graduate school applicants and adding graduate schools as subscribers to our application services.
Homeroom.com. We rely on a team of teachers, educational experts and developers to research, design and enhance our
Homeroom.com educational products. We believe that the following product design traits differentiate our Homeroom.com online
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subscription service from products offered by our competitors:
- unique combination of assessment tools and in-depth individualized remediation resources provides students and teachers with an
efficient means of identifying specific weaknesses and then correcting them;
- a large question pool aligned with the skills tested on state-mandated assessments based on the state in which the user resides, and
tools to further build and refine the question pool; and
- designed to work with the existing curriculum rather than alter or supplant it.
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Our current focus in the Homeroom.com division is to enhance functionality and partner with additional educational Web sites to
expand our targeted enrichment and remediation resources. We also plan to continue to expand our question pool, increase
state-specific availability and provide material for additional grade levels.
TECHNOLOGY
The purpose of our technology platform is to provide systems that help distinguish us in the marketplace, operate cost-effectively and
accommodate future growth. We currently use a combination of commercially available and custom developed software and hardware
systems. These systems are located at our Internet hosting facility, our corporate headquarters and at our regional offices. Our
technology platform is a combination of Microsoft/Intel, Unix and Oracle, which provides us with the ability to scale both capacity and
functionality.
One of our ongoing primary objectives is to maintain reliable systems. We have implemented performance monitoring for all key Web
and business systems to enable us to respond quickly to potential problems. Our Web sites, along with regional office replica data sets,
are hosted at Frontier Global Center, a third party facility in New York City. This facility provides redundant utility systems, a backup
electric generator and 24-hour a day server support. All servers have uninterruptible power supplies and redundant file systems to
maximize system and data availability. We regularly back up our data to minimize the impact of data loss due to system failure. The
servers at our regional sites also have the capability of supporting multiple offices so that in the event of service interruptions on one
server we are able to reroute processing to the servers in other offices.
SIGNIFICANT CUSTOMERS
Royalties, advances and other fees from services rendered by us to McGraw-Hill represented approximately 12% of our revenue in
1999 and 3% of our revenue in 1998. During 1999 and 1998, revenue from McGraw-Hill represented 100% of the revenue reported in
our Homeroom.com division. Royalties, advances and other fees from books authored by us and published and distributed by Random
House represented approximately 7% of our revenue in 1999 and 9% of our revenue in 1998. Revenue from Random House
represented approximately 51% of the revenue reported in our Review.com division in 1999 and 65% of the revenue reported in that
division in 1998.
COMPETITION
The markets for our online and offline educational products and services are fragmented and highly competitive. Companies in our
offline educational markets are well established, and we believe they will expand their offerings into our online markets. As a result,
we expect competition from both new and established companies to intensify in the future across all of our target markets. We compete
directly and indirectly with the following types of companies:
Test preparation companies. Our Instruction and Guidance division faces competition on a national level primarily from one other
established company, Kaplan, Inc. We also face competition from many local and regional companies that provide test preparation,
career counseling and application assistance to students. We expect that competition will increase as our national competitor seeks to
maintain or grow substantial national and local market share and as emerging companies enter our market.
Companies offering Internet-based college information services and products. Our Review.com division faces competition from
several companies that currently provide Internet-based products and services similar to ours for the higher education market.
Companies offering Internet-based products and services and software to the K-12 education market. Our Homeroom.com division
faces competition from many companies that provide student assessment, tutoring and remediation software and Internet-based
services to schools and students in the increasingly competitive K-12 education market.
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Print media companies. We face competition from traditional print media companies that publish standardized test preparation
materials, college and education guidebooks and K-12 assessment and remediation materials, and that offer admissions information
and services to students and schools. Several of these companies have their own Web sites or have established partnerships with
Internet companies with the intention of providing their products and services over the Internet. We expect that all of our primary
competitors in this area will expand into Internet delivery if they have not already done so. In addition, it is possible that some of our
customers in this area could expand into Internet delivery and become our competitors.
Non-profit and membership organizations. We also face competition from several non-profit and other organizations that offer both
face-to-face and Internet-based products and services to assist individuals and educational organizations with counseling, marketing
and applications. These organizations also provide information and advice to students through the Internet.
We believe that the principal competitive factors in our online and offline markets include the following:
- brand recognition;
- ability to demonstrate measurable results;
- availability of integrated online and offline solutions;
- ability to achieve a critical mass of students, parents and educational institutions on our Web site;
- quality of overall user experience;
- speed in the introduction of new services;
- quality of materials and teachers;
- alignment of offerings with specific needs of students, parents and educators; and
- value and availability of products and services.
We believe that our primary competitive advantages are our well-known and trusted Princeton Review brand, our extensive experience
in test preparation and admissions and our innovative, high-quality educational products and services. We also believe that our ability
to attract students, parents and educators to our highly trafficked Review.com Web site offers sponsors and merchandisers an attractive
source of potential consumers. Finally, we believe that none of our competitors currently offers the breadth of educational products
and services through the variety of channels that we provide. However, some of our competitors may have more resources than we do,
and they may be able to respond more quickly than we can to new technologies or changes in the education market. As a result, we
may not be able to maintain our competitive advantages over current or future competitors, and our business could suffer materially.
INTELLECTUAL PROPERTY AND PROPERTY RIGHTS
Our copyrights, trademarks, service marks, trade secrets, proprietary technology and other intellectual property rights distinguish our
products and services from those of our competitors, and contribute to our competitive advantage in our target markets. To protect our
brand, products and services and the systems that deliver those products and services to our customers we rely on a combination of
copyright, trademark and trade secret laws as well as confidentiality agreements and licensing arrangements with our employees,
customers, independent contractors, sponsors and others.
We strategically pursue the registration of our intellectual property rights. However, effective patent, trademark, service mark,
copyright and trade secret protection may not always be available. Existing laws do not provide complete protection, and monitoring
the unauthorized use of our intellectual property requires significant resources. We cannot be sure that our efforts to protect our
intellectual property rights will be adequate or that third parties will not infringe or misappropriate these rights. In addition, there can
be no assurance that competitors will not independently develop similar intellectual property. If others are able to copy and use our
products and delivery systems, we may not be able to maintain our competitive position. If litigation is necessary to enforce our
intellectual property rights or determine the scope of the proprietary
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rights of others, we may have to incur substantial costs or divert other resources, which could harm our business.
In addition, competitors and others may claim that we have infringed their intellectual property rights. Defending any such lawsuit,
whether with or without merit, could be time-consuming, result in costly litigation or prevent us from offering our products and
services, which could harm our business. If a lawsuit against us is successful, we may lose the rights to use our products or be required
to modify them, or we may have to pay financial damages. We have been subject to infringement claims in the past and expect to be
subject to legal proceedings and claims from time to time in the ordinary course of business, including claims of alleged infringement
of the trademarks and other intellectual property rights of third parties.
We have used "The Princeton Review" as our principal service mark since 1982. Although we have registered the mark, our
application for registration was opposed by Princeton University and the validity of our registration is uncertain. We believe we have
acquired intellectual property rights in "The Princeton Review" service mark and trademark due to our long-term use of the mark; and
no one has objected to this use of the mark, as distinguished from federal registration, during the 18 years we have used it.
In order to develop, improve, market and deliver new products and services, we may be required to obtain licenses from others. There
can be no assurance that we will be able to obtain licenses on commercially reasonable terms or at all or that rights granted under any
licenses will be valid and enforceable.
GOVERNMENT REGULATION
We must comply with regulations adopted by the Federal Trade Commission and with several state laws that regulate the offer and sale
of franchises. The FTC's Trade Regulation Rule on Franchising, or the FTC Rule, and various state laws require that we furnish
prospective franchisees with a franchise offering circular containing information prescribed by the FTC Rule and applicable state laws
and regulations.
We also must comply with a number of state laws that regulate substantive aspects of the franchisor-franchisee relationship, including:
- those governing the termination or non-renewal of a franchise without good cause;
- requirements that a franchisor deal with its franchisees in good faith;
- prohibitions against interference with the right of free association among franchisees; and
- those regulating discrimination among franchisees in charges, royalties or fees.
Some foreign countries also have laws affecting the offer and sale of franchises within their borders and to their citizens and U.S.
federal and state franchise regulation may be applicable to our efforts to establish franchises abroad. Failure to comply with these laws
could limit or preclude our ability to expand internationally through franchising.
To date, these laws have not precluded us from seeking franchisees in any given area and have not had a material adverse effect on our
operations. However, compliance with federal, state and international franchise laws can be costly and time consuming, and we cannot
assure you that we will not encounter delays, expenses or other difficulties in this area.
EMPLOYEES
As of September 30, 2000, we had 297 full-time employees, including 87 in content and editorial, 42 in administration, finance and
human resources, 36 in information systems, 21 in marketing, 10 in sales and sales support and 101 in our regional offices performing
multiple tasks, including sales, administrative, and teaching functions. In addition, we had approximately 1600 part-time employees
comprised mainly of teachers.
None of our employees is covered by a collective bargaining agreement. We consider our employee relations to be good.
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FACILITIES
Our headquarters are located in New York, New York, where we lease approximately 26,000 square feet of office space under a lease
that expires on August 31, 2010. We also lease an aggregate of approximately 106,500 square feet of office space for additional
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operations in New York, New York and our 14 regional offices located in California, Georgia, Hawaii, Illinois, New York, Ohio,
Pennsylvania, Washington, Washington D.C. and Canada.
LEGAL PROCEEDINGS
From time to time, we are involved in legal proceedings incidental to the conduct of our business. We are not currently a party to any
legal proceeding which, in the opinion of our management, is likely to have a material adverse effect on us.
SEGMENT INFORMATION
For financial information relating to our operating divisions by business segment, see Note 14 to our consolidated financial statements
included elsewhere in this prospectus.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth information with respect to our current executive officers and directors.
NAME AGE POSITION
---- --- --------
John S. Katzman................ 41 Chairman and Chief Executive Officer
Mark Chernis................... 33 President and Chief Operating Officer
Stephen Melvin................. 48 Chief Financial Officer
Stephen Quattrociocchi......... 37 Executive Vice President, Instruction and Guidance Division
Evan Schnittman................ 37 Executive Vice President, Review.com Division
Linda Nessim-Rubin............. 33 Executive Vice President, Communications
Bruce Task..................... 50 Executive Vice President, Princeton Review Ventures
Steven Hodas................... 40 Executive Vice President, Strategic Development
Peter Taylor................... 37 Senior Vice President, Technology
Richard Katzman................ 44 Director
V. Frank Pottow................ 37 Director
John C. Reid................... 50 Director
Richard Sarnoff................ 41 Director
Sheree T. Speakman............. 46 Director
Howard A. Tullman.............. 55 Director
John S. Katzman, Chairman and Chief Executive Officer, founded our company in 1981. Mr. Katzman has served as our Chief
Executive Officer and director since our formation. Mr. Katzman served as our President from 1981 until August 2000. Mr. Katzman
is the brother of Richard Katzman, one of the other members of the board of directors. Mr. Katzman is also a director of Student
Advantage. Mr. Katzman received a BA from Princeton University.
Mark Chernis, President and Chief Operating Officer, joined us in 1984. Mr. Chernis has served as Chief Operating Officer since 1995
and became President in August 2000. From 1989 to 1995, Mr. Chernis served as our Vice President, Operations. From 1984 to 1989,
Mr. Chernis served as a systems analyst. Mr. Chernis received a BA from Vassar College.
Stephen Melvin, Chief Financial Officer, joined us in 1998. From 1996 to 1998, he served as Vice President of Solow Realty
Company where he was responsible for overseeing the property management business. From 1987 to 1996, Mr. Melvin was Chief
Financial Officer of Western Heritable Investment Corporation, a real estate investment and management company. From 1983 to
1987, Mr. Melvin served as Controller of Private Satellite Network, Inc. From 1978 to 1983, Mr. Melvin was Assistant Corporate
Controller of Paramount Pictures Corp. From 1974 to 1978, Mr. Melvin was a Certified Public Accountant at Deloitte & Touche LLP.
Mr. Melvin received a BA from the University of Virginia and an MS from New York University.
Stephen Quattrociocchi, Executive Vice President, Instruction and Guidance division, joined us in 1988. Since 1997, he has served as
Executive Vice President of our Instruction and Guidance division. From 1991 to 1997, Mr. Quattrociocchi served as Vice President
of Course Operations. Mr. Quattrociocchi received a BS from the Massachusetts Institute of Technology and an MBA from The
Wharton School.
Evan Schnittman, Executive Vice President, Review.com division, joined us in 1996. Since 1998, Mr. Schnittman has served as
2002. EDGAR Online, Inc.
Executive Vice President, Review.com division. From 1996 to 1998, Mr. Schnittman was Editor-in-Chief, responsible for our editorial
and production departments. Before joining us, Mr. Schnittman was a Senior Editor at Little, Brown & Company from 1993 to 1996.
Mr. Schnittman received a BA from the University of Iowa.
Linda Nessim-Rubin, Executive Vice President, Communications, joined us in 1990. Ms. Nessim-Rubin has served in her current
capacity since 1998. She manages the Princeton Review brand and oversees
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communications and marketing, as well as human resources. From 1995 to 1998, she was Vice President, Marketing Operations. Prior
to joining us, Ms. Nessim-Rubin worked as an Account Executive for Hakahudo Advertising. Ms. Nessim-Rubin received a BFA from
Parsons School of Design.
Bruce Task, Executive Vice President, Princeton Review Ventures, joined us in 1987. From 1997 to early 2000, he served as
Executive Vice President of Strategic Planning. From 1996 to 1997, he served as Vice President of Research and Development, and
from 1988 to 1995 he served as our Chief Financial Officer. From 1987 to 1988, Mr. Task was director of our Washington, D.C.
office. Mr. Task received a BS from C.W. Post College.
Steven Hodas, Executive Vice President, Strategic Development, joined us in 1995. From 1995 to 1999, Mr. Hodas served as our Vice
President, Online Services. From 1993 to 1995, Mr. Hodas served as Project Manager for the NASA K-12 Internet Initiative where he
was responsible for advising the White House and federal and state agencies on school technology policy. Mr. Hodas received a BA
from Sarah Lawrence College.
Peter Taylor, Senior Vice President of Technology, joined us in 1999. From 1998 to 1999, Mr. Taylor was Custom Application
Solution Director at Whittman-Hart, Inc., a computer consulting firm. From 1997 to 1998, he served as Distributed Computing
Practice Manager at Automated Concepts, Inc., a computer consulting firm. From 1996 to 1997, he served as Regional Manager at
CGS Computer Associates, Inc., a computer consulting firm, and from 1993 to 1996, Mr. Taylor was Director of Consulting at
Computer Generated Solutions, Inc., a computer consulting firm. Mr. Taylor received a BS from the Illinois Institute of Technology.
Richard Katzman has served as a director of our company since 1985. Since 1997, Mr. Katzman has been the Chairman of the Board
and Chief Executive Officer of Kaz, Inc., a manufacturer of humidifiers, vaporizers and other consumer appliances. From 1987 to
1997, Mr. Katzman served as President of Kaz, Inc. Mr. Katzman is the brother of John S. Katzman, the Chairman and Chief
Executive Officer of our company. Mr. Katzman received a BA from Brown University.
V. Frank Pottow has served as a director of our company since April 2000. Mr. Pottow has been a Managing Director of SG Capital
Partners LLC, the American merchant banking affiliate of French bank Societe Generale, since 1997. From 1996 to 1997, he served as
Managing Director of Thayer Capital Partners, L.P., a private equity manager. From 1992 to 1996, he was a Principal at Odyssey
Partners L.P., a private investment partnership. He is also a member of the board of directors of Bargo Energy Company. Mr. Pottow
received a BS from the Wharton School and an MBA from Harvard Business School. Mr. Pottow is SG Capital Partners LLC's
representative on our board of directors, in accordance with the terms of our stockholders' agreement.
John C. Reid has served as a director of our company since March 2000. Since 1999, Mr. Reid has been the Chief Executive Officer of
CometSystems.com, a company that develops software for the Internet. From 1996 to 1999, Mr. Reid served as Chief Operating
Officer of Edison Schools, Inc. From 1974 to 1996, Mr. Reid served in the Executive Management of The Coca-Cola Company,
including from 1985 to 1996 as Senior Vice President, Marketing, Coca-Cola USA and Chief Environmental Officer, The Coca-Cola
Company. Mr. Reid is also a member of the board of directors of Funderstanding, Inc., Giftworld.com, Inc. and Magnetic Data
Technologies, L.L.C. Mr. Reid received a BA from Brandeis University and an MA from Massachusetts Institute of Technology.
Richard Sarnoff has served as a director of our company since 1998. Since 1998, Mr. Sarnoff has been Executive Vice President and
Chief Financial Officer of Random House, Inc. From 1996 to 1998, Mr. Sarnoff served as Chief Financial Officer of Bantam
Doubleday Dell, a consumer book publisher, and from 1995 to 1998, he was Senior Vice President, Corporate Development of
Bantam Doubleday Dell. Mr. Sarnoff is also a member of the board of the Children's Museum of Manhattan. Mr. Sarnoff received a
BA from Princeton University and an MBA from Harvard Business School. Mr. Sarnoff is Random House's representative on our
board of directors, in accordance with the terms of our stockholders' agreement.
Sheree T. Speakman has served as a director of our company since March 2000. Since 1998, Ms. Speakman has been President and
Chief Executive Officer of Fox River Learning, Inc., an education consulting firm.
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From 1983 to 1998, Ms. Speakman was a principal at Coopers & Lybrand LLP where she led their national efforts in K-12 financial
analysis and consulting. Ms. Speakman is also a director of StandardsWork, Inc., an education consulting company that specializes in
standards-driven learning. Ms. Speakman received a BA from Albion College and an MBA from the University of Chicago.
Howard A. Tullman has served as a director of our company since March 2000. Since August 2000, Mr. Tullman has been Chief
Executive Officer and a director of Xceed, Inc., a business consulting company. Since March 2000, Mr. Tullman has been the General
Manager of the Chicago High Tech Investors I, LLC, an Internet-oriented investment fund. From September 1996 to February 2000,
Mr. Tullman was the Chief Executive Officer of Tunes.com, Inc. and its predecessors, an Internet music site he helped found, which
was sold to EMusic.com, Inc. From October 1993 to October 1996, Mr. Tullman was the President and Chief Executive Officer of
Imagination Pilots, Inc., a multimedia software developer he founded in 1993. Mr. Tullman serves as a director of EMusic.com, Inc.
and is the Chairman of the Board of The Cobalt Group. Mr. Tullman received a BA from Northwestern University and a JD from
Northwestern University School of Law.
BOARD COMPOSITION
We currently have seven directors. Under our restated certificate of incorporation, which will become effective upon the closing of this
offering, the terms of office of our directors will be divided into the following three classes:
- Class I, whose term will expire at the annual meeting of stockholders to be held in 2001;
- Class II, whose term will expire at the annual meeting of stockholders to be held in 2002; and
- Class III, whose term will expire at the annual meeting of stockholders to be held in 2003.
The Class I directors will be John S. Katzman, V. Frank Pottow and John C. Reid, the Class II directors will be Richard Katzman and
Sheree T. Speakman and the Class III directors will be Richard Sarnoff and Howard A. Tullman. At each annual meeting of
stockholders after the initial classification or special meeting held in place of an annual meeting, the successors to directors whose
terms will then expire will be elected to serve from the time of election and qualification until the third annual meeting following
election or similar special meeting. Any additional directorships resulting from an increase in the number of directors will be
distributed among the three classes so that, as nearly as possible, each class will consist of one third of the directors. This classification
of our board of directors may have the effect of delaying or preventing changes in control or management of The Princeton Review.
COMMITTEES OF THE BOARD OF DIRECTORS
In June 2000, our board of directors established an audit committee and a compensation committee.
Audit Committee. The audit committee assists the board of directors in fulfilling its responsibilities of ensuring that management is
maintaining an adequate system of internal controls to assure:
- that assets are safeguarded and that financial reports are properly prepared;
- consistent application of generally accepted accounting principles; and
- compliance with management's policies and procedures.
In performing these functions, the audit committee meets periodically with the independent auditors and management to review their
work and confirm that they are properly discharging their responsibilities. The audit committee also:
- recommends an independent audit firm to audit financial statements and to perform services related to audits;
- reviews the scope and results of audits with independent accountants;
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- reviews with management and independent accountants our annual operating results;
- considers the adequacy of our internal accounting control procedures; and
- considers our accountants' independence.
2002. EDGAR Online, Inc.
The audit committee currently consists of V. Frank Pottow (Chairman), John C. Reid and Sheree T. Speakman.
Compensation Committee. The primary function of the compensation committee is to determine management and executive
compensation and establish fringe benefit and other compensation policies. The compensation committee is also responsible for the
administration of our stock incentive plan, including reviewing management recommendations with respect to grants of awards and
taking other actions as may be required in connection with our compensation and incentive plans. The compensation committee
currently consists of V. Frank Pottow, Richard Sarnoff and Howard A. Tullman (Chairman).
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During our last completed fiscal year, we did not have a compensation committee. John S. Katzman, Mark Chernis and Linda
Nessim-Rubin participated in deliberations of our board of directors concerning executive officer compensation. On June 15, 2000,
our board of directors formed a compensation committee. None of our officers or other employees serves as a member of our
compensation committee. None of our executive officers serves as a member of the board of directors or compensation committee of
any entity that has one or more executive officers serving as a member of our board of directors or compensation committee.
DIRECTOR COMPENSATION
Each of our non-employee directors received an award of options to purchase 16,920 shares of common stock as one-time
compensation for services as a director. Richard Katzman received an additional grant of options to purchase 25,380 shares in
consideration for past services as our director. These options have an exercise price of $7.39 and vest as to 25% of the shares subject
to the option on the first anniversary of the date of grant and as to an additional
6.25% of such shares each quarter thereafter until fully vested. All of the options have a term of 10 years, subject to earlier termination
in the event of termination of service as our director.
We reimburse our directors for reasonable expenses they incur in attending meetings of our board of directors and its committees.
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EXECUTIVE COMPENSATION
The following table shows the total compensation paid for the year ended December 31, 1999 for our Chief Executive Officer and the
other four most highly compensated executive officers whose annual salary and bonus exceeded $100,000 in 1999.
SUMMARY COMPENSATION TABLE
ANNUAL
COMPENSATION
------------------- ALL OTHER
NAME AND PRINCIPAL POSITION SALARY BONUS COMPENSATION
--------------------------- -------- ------- ------------
John S. Katzman............................................. $368,433 -- --
Chairman and Chief Executive Officer
Mark Chernis................................................ 228,462 $47,273 $5,000,000
President and Chief Operating Officer
Stephen Quattrociocchi...................................... 200,000 -- 1,250,000
Executive Vice President, Instruction and Guidance
Division
Bruce Task.................................................. 196,250 25,000 625,000
Executive Vice President, Princeton Review Ventures
Stephen Melvin.............................................. 165,096 30,000 625,000
Chief Financial Officer
Amounts listed above under "All Other Compensation" represent the value, as of December 31, 1999, of PSUs awarded to each of the
persons listed in the table above during the year then ended. Of the amounts of PSUs listed in the table above, $625,000 of Mr.
Chernis', $104,167 of Mr. Quattrociocchi's, $20,833 of Mr. Task's and $156,250 of Mr. Melvin's PSUs were vested as of December
31, 1999. All of the PSUs shown in the table above have been relinquished in connection with the termination of the PSU Plan and the
adoption of the 2000 Stock Incentive Plan as part of our restructuring. The consideration received by the persons listed in the table
2002. EDGAR Online, Inc.
above with respect to their relinquishment of these and other PSUs held by them is described under "Related Party Transactions."
OPTION GRANTS IN 2000, AS OF OCTOBER 31, 2000
The following table shows grants of stock options to our Chief Executive Officer and to the other executive officers named in the
Summary Compensation Table above during 2000, as of October 31, 2000. Our stock incentive plan was adopted on March 31, 2000
as a replacement for our previous PSU and SAR plans. Accordingly, there were no options granted in 1999.
The percentages in the table below are based on options to purchase an aggregate of 1,437,364 shares of common stock granted under
our stock option plan through October 31, 2000 to our employees, consultants and directors. The exercise price per share of each
option was not less than the fair market value of the common stock on the date of grant as determined by the board of directors, except
for 139,857 options granted to replace previously outstanding SARs which were granted with exercise prices equal to the exercise
price of the SARs they replaced. All options, other than Mr. Quattrociocchi's, shown in the following table with an exercise price of
$7.39 per share vest as to 6.25% of these shares each quarter following the grant date until fully vested. Mr. Quattrociocchi's options
with an exercise price of $7.39 per share vest as to
8.33% of these shares each quarter following the grant date until fully vested. All options shown in the following table with exercise
prices below $7.39 per share are fully vested. All of the options have a term of 10 years, subject to earlier termination in the event of a
termination of employment.
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Potential realizable values are net of exercise price before taxes and are based on the assumption that our common stock appreciates at
the annual rate shown, compounded annually, from the date of grant until the expiration of the 10-year term. Potential realizable value
has been calculated using an assumed initial public offering price of $12.00 per share, although we estimate that, in each case, the fair
market value of our stock at the time the option was granted was substantially less. These numbers are calculated based on the
requirements of the Commission and do not reflect our estimate of future stock price growth.
POTENTIAL
REALIZABLE VALUE
AT ASSUMED
INDIVIDUAL GRANTS ANNUAL
-------------------------------------------------------- RATES OF STOCK
NUMBER OF PRICE
SECURITIES PERCENT OF TOTAL APPRECIATION FOR
UNDERLYING OPTIONS GRANTED TO EXERCISE OPTION
OPTIONS EMPLOYEES IN PRICE PER EXPIRATION -----------------------
NAME GRANTED FISCAL YEAR(%) SHARE($) DATE 5% 10%
---- ---------- ------------------ --------- ---------- ---------- ----------
John S. Katzman............... -- -- -- -- -- --
Mark Chernis.................. 253,800 16.9% $7.39 4/18/10 $1,322,880 $1,475,160
19,543 1.3 1.73 4/18/10 212,487 224,212
4,169 0.3 2.01 4/18/10 44,163 46,664
Stephen Melvin................ 143,820 9.6 7.39 4/18/10 749,632 835,924
Stephen Quattrociocchi........ 101,520 6.7 7.39 4/18/10 529,152 590,064
13,028 0.9 1.73 4/18/10 146,658 149,475
2,736 0.2 2.01 4/18/10 28,982 30,623
Bruce Task.................... 40,185 2.7 7.39 4/18/10 209,456 233,567
19,543 1.3 1.73 4/18/10 212,487 224,212
4,821 0.3 2.01 4/18/10 51,063 53,955
OPTION VALUES AS OF OCTOBER 31, 2000
The following table provides summary information concerning stock options held as of October 31, 2000 by our Chief Executive
Officer and by the other executive officers named in the Summary Compensation Table above. The value of in-the-money options
represents the difference between the exercise price of an option and an assumed initial public offering price of $12.00 per share.
2002. EDGAR Online, Inc.
NUMBER OF VALUE OF
SECURITIES UNDERLYING UNEXERCISED IN-THE-MONEY
UNEXERCISED OPTIONS OPTIONS AS OF
SHARES AS OF OCTOBER 31, 2000 OCTOBER 31, 2000
ACQUIRED VALUE --------------------------- ---------------------------
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
John S. Katzman................. -- -- -- -- -- --
Mark Chernis.................... -- -- 55,437 222,075 $431,327 $1,024,275
Stephen Melvin.................. -- -- 17,978 125,843 103,371 580,423
Stephen Quattrociocchi.......... -- -- 33,182 84,600 267,912 390,200
Bruce Task...................... -- -- 29,386 35,162 284,502 162,177
2000 STOCK INCENTIVE PLAN
The following is a summary description of our 2000 Stock Incentive Plan. You may refer to the exhibits that are part of the registration
statement for a copy of the stock incentive plan.
On March 31, 2000, we adopted our 2000 Stock Incentive Plan for the benefit of our officers, other employees and directors and the
officers, other employees and directors of our subsidiaries. The stock incentive plan will remain effective until March 30, 2010.
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The stock incentive plan provides for the grant of:
- options that are intended to qualify as incentive stock options, or ISOs, within the meaning of Section 422 of the Internal Revenue
Code;
- options not intended to so qualify, or NQOs;
- awards of restricted stock; and
- awards of deferred stock.
Our officers, other employees and directors and our affiliates designated by the compensation committee of our board of directors are
eligible to receive grants under the plan. The plan is administered by the compensation committee, and stock options, restricted stock
awards and deferred stock awards are granted at the discretion of the compensation committee.
Options. The compensation committee determines:
- which eligible persons will be granted options under the plan;
- the type of options and the terms and conditions of exercisability;
- the term of the options; and
- the number of shares of common stock for which an option will be granted.
The maximum term of each stock option granted under the plan is 10 years and one day. If an optionee's employment terminates, the
option will remain exercisable only to the extent determined by the compensation committee.
The aggregate fair market value, determined at the date the option is granted, of stock with respect to which ISOs granted under the
stock incentive plan are exercisable for the first time in any calendar year by any eligible officer or other employee may not exceed
$100,000. The exercise price of ISOs granted under the stock incentive plan may not be less than fair market value of the stock on the
date of grant, as determined by the compensation committee. The exercise price for each NQO granted under the stock incentive plan
is determined by the compensation committee at the time of grant.
Restricted Stock Awards. The compensation committee determines:
- which eligible persons will receive restricted stock awards;
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- whether the grant will be an award of restricted stock or rights to purchase restricted stock;
- the number of shares of restricted stock or rights to purchase restricted stock granted;
- the price to be paid by the recipient of a right to purchase restricted stock; and
- the vesting conditions of such awards.
Unless otherwise determined by the compensation committee, if an employee terminates employment before all of his or her restricted
stock has vested or the vesting requirements are otherwise not met, the unvested shares of restricted stock will be forfeited. The
purchase price paid by the employee with respect to such shares will be returned to the employee or a cash payment equal to the
restricted stock's fair market value on the date of forfeiture, if lower, will be paid to the employee. The compensation committee
determines whether holders of restricted stock will have the right to vote with respect to their stock and whether they will be entitled to
dividends.
Deferred Stock Awards. The compensation committee determines:
- which eligible persons will receive deferred stock awards;
- the number of shares of deferred stock to be awarded; and
- the length and conditions of the deferral period.
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Deferred stock awards may be conditioned upon the attainment of specified performance goals or other criteria. Upon the expiration of
the deferral period, the grantee will be paid the value of the deferred stock award in stock, cash or a combination, at the discretion of
the compensation committee. Upon termination of employment prior to the expiration of the deferral period, the employee will forfeit
all deferred stock awards.
The total number of shares of our common stock reserved and available for awards under the stock incentive plan is 2,749,500. As of
October 31, 2000, there were:
- options outstanding under the stock incentive plan to purchase 1,437,364 shares of our Class B non-voting common stock at a
weighted average exercise price of $6.87 per share;
- 917,204 shares of Class B non-voting common stock issued under the plan; and
- 394,963 shares available for future issuance under the plan.
Our board of directors has authorized an increase of 846,000 in the total number of shares of our common stock available for awards
under the plan to 3,595,500 upon the completion of this offering.
Change in Control. Under the stock incentive plan, in the event of a change in control, all options become fully exercisable and all
restrictions and deferral limitations applicable to restricted stock awards and deferred stock awards lapse, unless a successor assumes
or substitutes options. If a successor assumes or substitutes options in connection with a change in control and an employee's
employment is terminated in connection with or within one year following a change in control without cause or after being reassigned,
all options become fully exercisable and all restrictions and deferral limitations applicable to restricted stock awards and deferred
stock awards lapse. A change in control is defined under the stock incentive plan as:
- a corporate merger or similar transaction in which we are not the surviving entity;
- the acquisition of 30% of our outstanding voting common stock by an outside entity or a related group of outside entities;
- a change in the majority of the composition of our board of directors within two years without the approval of two-thirds of the
existing directors;
- our liquidation or dissolution or a sale of substantially all of our assets to an outside entity; or
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- the execution of a binding agreement, which, if consummated, would result in a change in control described above.
For purposes of the above definition, an outside entity means any person or entity other than an affiliate of ours or any shareholder of
any such affiliate as of September 1, 1998.
Federal Income Tax Consequences. The following is a summary of federal income tax consequences generally arising with respect to
awards made under the stock incentive plan.
The grant of an option will create no tax consequences for the optionee or us. Upon exercising an option, other than an ISO, the
optionee will generally recognize ordinary income equal to the difference between the exercise price and the fair market value of the
shares acquired on the date of exercise and we will generally be entitled to a tax deduction in the same amount. An optionee generally
will not recognize taxable income upon exercising an ISO and we will not be entitled to any tax deduction with respect to an ISO if the
optionee holds the shares for the applicable periods specified in the Internal Revenue Code.
With respect to restricted stock awards, upon the payment of cash or the issuance of shares or other property that is either not restricted
as to transferability or not subject to a substantial risk of forfeiture, the participant will generally recognize ordinary income equal to
the cash or the fair market value of the shares or other property delivered. We will generally be entitled to a deduction in an amount
equal to the ordinary income recognized by the participant.
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EMPLOYMENT AGREEMENTS
Agreement with John S. Katzman. On August 7, 2000, we entered into an employment agreement with John S. Katzman for his
continued service as our Chief Executive Officer at an annual base salary of $400,000, increasing each year at the discretion of the
board of directors. The agreement includes a performance bonus of between 10% and 100% of his base salary. The agreement
provides for an initial term of two years with automatic renewal for additional two-year periods on each anniversary of the effective
date of the agreement until Mr. Katzman voluntarily terminates employment or until we give Mr. Katzman written notice at least six
months prior to the anniversary date of the agreement.
If we terminate Mr. Katzman's employment without cause or if we do not renew the agreement, we have agreed to pay Mr. Katzman
his annual base salary for an additional 18 months following termination.
Under this agreement, Mr. Katzman has agreed not to compete with us in the business of providing assistance with respect to
preparation for standardized examinations or the college, professional school, or graduate school admissions process for 18 months
following the expiration or termination of this agreement. Mr. Katzman has also agreed under this agreement that for 18 months after
the expiration or termination of this agreement, he will not solicit the services of any of our employees or our franchisees' employees,
and he will not take any action that results, or might reasonably result, in any employee ceasing to perform services for us or any of our
franchisees and then commencing services for Mr. Katzman.
Agreement with Mark Chernis. On April 18, 2000, we entered into an employment agreement with Mark Chernis for his continued
service as our Chief Operating Officer at an annual base salary of $257,500, increasing by 3% each year. The agreement includes a
$50,000 annual bonus and an annual performance bonus of up to 50% of base salary. The agreement supersedes all previous
agreements between us and Mr. Chernis and provides for an initial term of two years with automatic renewal for additional two-year
periods on each anniversary of the effective date of the agreement until Mr. Chernis voluntarily terminates employment or until we
give Mr. Chernis written notice of non-renewal six months prior to the anniversary of the date of the agreement.
The employment agreement grants Mr. Chernis stock options to purchase 253,800 shares of our Class B non-voting common stock at a
price of $7.39 per share. These stock options are subject to the provisions of our stock incentive plan. The stock options granted to Mr.
Chernis vest in equal quarterly installments until the fourth anniversary of the effective date of the employment agreement. Regardless
of these vesting provisions, the stock options become 100% exercisable upon the occurrence of a "change in control," as defined in our
stock incentive plan.
If we terminate Mr. Chernis' employment without cause or if we do not renew the agreement, we have agreed to pay Mr. Chernis his
annual base salary for an additional 18 months following termination. In addition, we have agreed to reimburse Mr. Chernis for any
payments he makes to maintain medical and dental insurance for 18 months following termination.
Under this agreement, Mr. Chernis has agreed not to compete with us in the business of providing assistance with respect to
preparation for standardized examinations or the college, professional school, or graduate school admissions process for 18 months
2002. EDGAR Online, Inc.
following the expiration or termination of this agreement. Mr. Chernis also has agreed under this agreement that for 18 months after
the expiration or termination of this agreement, he will not solicit the services of any of our employees or our franchisees' employees,
and he will not take any action that results, or might reasonably result, in any employee ceasing to perform services for us or any of our
franchisees and then commencing services for Mr. Chernis.
Agreement with Stephen Melvin. On April 1, 2000, we entered into an employment agreement with Stephen Melvin for his continued
service as our Chief Financial Officer at an annual base salary of $200,000, increasing by 5% each year. The agreement includes an
annual bonus of between 15% and 35% of his base salary. The agreement supersedes all previous agreements between us and Mr.
Melvin and provides for an initial term of two years with automatic renewal for additional two-year periods on each anniversary of the
effective date of the agreement until Mr. Melvin voluntarily terminates employment or until we give Mr. Melvin written notice of
non-renewal at least six months prior to the anniversary date of the agreement.
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The employment agreement grants Mr. Melvin stock options to purchase 143,820 shares of our Class B non-voting common stock at a
price of $7.39 per share. These stock options are subject to the provisions of our stock incentive plan. The stock options granted to Mr.
Melvin vest in equal quarterly installments until the fourth anniversary of the effective date of the employment agreement. Regardless
of these vesting provisions, the stock options become 100% exercisable upon the occurrence of a "change in control," as defined in our
stock incentive plan.
If we terminate Mr. Melvin's employment without cause or if we do not renew the agreement, we have agreed to pay Mr. Melvin his
annual base salary for an additional 10 months following termination.
Under this agreement, Mr. Melvin has agreed not to compete with us in the business of providing assistance with respect to preparation
for standardized examinations or the college, professional school, or graduate school admissions process for 18 months following the
expiration or termination of this agreement. Mr. Melvin also has agreed under this agreement that for 18 months after the expiration or
termination of this agreement, he will not solicit the services of any of our employees or our franchisees' employees, and he will not
take any action that results, or might reasonably result, in any employee ceasing to perform services for us or any of our franchisees
and then commencing services for Mr. Melvin.
Agreement with Stephen Quattrociocchi. On April 10, 2000, we entered into an employment agreement with Stephen Quattrociocchi
for his continued service as our Executive Vice President of the Instruction and Guidance Division at an annual base salary of
$245,000, increasing by a minimum of 3% each year. The agreement includes an annual bonus of up to 35% of his base salary. The
agreement supersedes all previous agreements between us and Mr. Quattrociocchi and provides for an initial term of two years with
automatic renewal for additional two-year periods on each anniversary of the effective date of the agreement until Mr. Quattrociocchi
voluntarily terminates employment or until we give Mr. Quattrociocchi written notice of non-renewal at least six months prior to the
anniversary date of the agreement.
The employment agreement grants Mr. Quattrociocchi stock options to purchase 101,520 shares of our Class B non-voting common
stock at a price of $7.39 per share. These stock options are subject to the provisions of our stock incentive plan. The stock options
granted to Mr. Quattrociocchi vest in equal quarterly installments until the third anniversary of the effective date of the employment
agreement. Regardless of these vesting provisions, the stock options become 100% exercisable upon the occurrence of a "change in
control," as defined in our stock incentive plan.
If we terminate Mr. Quattrociocchi's employment without cause or if we do not renew the agreement, we have agreed to pay Mr.
Quattrociocchi his annual base salary for an additional 12 months following termination.
Under this agreement, Mr. Quattrociocchi has agreed not to compete with us in the business of providing assistance with respect to
preparation for standardized examinations or the college, professional school, or graduate school admissions process for 18 months
following the expiration or termination of this agreement. Mr. Quattrociocchi also has agreed under this agreement that for 18 months
after the expiration or termination of this agreement, he will not solicit the services of any of our employees or our franchisees'
employees, and he will not take any action that results, or might reasonably result, in any employee ceasing to perform services for us
or any of our franchisees and then commencing services for Mr. Quattrociocchi.
Agreement with Bruce Task. On April 10, 2000, we entered into an employment agreement with Bruce Task for his continued service
as our Executive Vice President of Princeton Review Ventures at an annual base salary of $250,000, increasing by 3% each year. The
agreement includes an annual performance-based bonus of between 7.5% and 60% of his base salary. The agreement supersedes all
previous agreements between us and Mr. Task and provides for an initial term of two years with automatic renewal for additional
two-year periods on each anniversary of the effective date of the agreement until Mr. Task voluntarily terminates employment or until
we give Mr. Task written notice of non-renewal at least six months prior to the anniversary date of the agreement.
2002. EDGAR Online, Inc.
The employment agreement grants Mr. Task stock options to purchase 40,185 shares of our Class B non-voting common stock at a
price of $7.39 per share. These stock options are subject to the provisions of our
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stock incentive plan. The stock options granted to Mr. Task vest in equal quarterly installments until the fourth anniversary of the
effective date of the employment agreement. Regardless of these vesting provisions, the stock options become 100% exercisable upon
the occurrence of a "change in control," as defined in our stock incentive plan.
If we terminate Mr. Task's employment without cause or do not renew his agreement, we have agreed to pay Mr. Task his annual base
salary in bi-weekly payments for an additional 12 months following termination. In addition, we have agreed to reimburse Mr. Task
for any payments he makes to maintain medical and dental insurance for the number of weeks equal to twice the number of years
employed by us. If Mr. Task voluntarily terminates his employment, we have agreed to pay him his base salary for six months
following such termination.
Under this agreement, Mr. Task has agreed not to compete with us in the business of providing assistance with respect to preparation
for standardized examinations or the college, professional school, or graduate school admissions process for 18 months following the
expiration or termination of this agreement. Mr. Task also has agreed under this agreement that for 18 months after the expiration or
termination of this agreement, he will not solicit the services of any of our employees or our franchisees' employees, and he will not
take any action that results, or might reasonably result, in any employee ceasing to perform services for us or any of our franchisees
and then commencing services for Mr. Task.
Under this employment agreement, we have agreed that we will not exercise our right, under the stockholders' agreement dated April
1, 2000, to repurchase Mr. Task's shares of common stock in the event Mr. Task ceases to be an employee, consultant or board
member of the company.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 102 of the Delaware General Corporation Law, or the DGCL, allows a corporation to eliminate the personal liability of
directors of the corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability:
- for any breach of the director's duty of loyalty to the corporation or its stockholders;
- for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
- under section 174 of the DGCL regarding unlawful dividends and stock purchases; or
- for any transaction from which the director derived an improper personal benefit.
Our certificate of incorporation includes a provision that eliminates the personal liability of our directors for monetary damages for
breach of fiduciary duty as a director, except to the extent such exemption from liability is expressly forbidden by the DGCL, as it now
exists or is later amended.
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by
reason of such person being or having been a director, officer, employee or agent of the corporation. The statute provides that it is not
exclusive of other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Our certificate of incorporation requires us to indemnify to the fullest extent authorized or permitted by the DGCL (as it existed at the
time of the adoption of the certificate of incorporation, or, if the DGCL is later amended to permit broader indemnification, as so
amended) each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was our director or officer, or is
or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether the
2002. EDGAR Online, Inc.
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basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity
while serving as a director, officer employee or agent. We are only required to indemnify any person seeking indemnification in
connection with an action initiated by that person if the action was authorized by the board of directors. The certificate of
incorporation also provides that we must advance expenses to a director or officer in advance of the final disposition of the matter with
respect to which the expenses are being advanced upon receipt of an undertaking, if the undertaking is required by the DGCL, by or on
behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled to be
indemnified by us. The certificate of incorporation further states that we may, by action of the board of directors, provide
indemnification to our employees and agents with the same scope and effect as the provisions relating to directors and officers.
The certificate of incorporation provides that these rights to indemnification and advancement of expenses are not exclusive of any
other right that any person may have or acquire under any statute, any amendment to the certificate of incorporation, by-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
We maintain directors and officers liability insurance.
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RELATED PARTY TRANSACTIONS
OUR RESTRUCTURING
Distribution Prior to our Restructuring
Immediately prior to our restructuring, which is described more fully under "Our Restructuring" elsewhere in this prospectus, we
distributed stock of Student Advantage owned by us to our then existing stockholders and the minority interest holders of one of our
limited liability company subsidiaries. The following table shows:
- our executive officers and the beneficial owner of more than 5% of our voting stock that received stock of Student Advantage in this
distribution;
- the number of shares of Student Advantage stock received by these parties; and
- the aggregate public market value of these shares as of the date of the distribution.
SHARES OF
STOCK OF
STUDENT AGGREGATE
EXECUTIVE OFFICER OR 5% STOCKHOLDER ADVANTAGE VALUE
----------------------------------- ----------------- ----------
John S. Katzman............................................. 494,368 $4,944,000
Mark Chernis................................................ 5,205 52,000
Bruce Task.................................................. 8,832 88,000
Random House TPR, Inc. ..................................... 147,425 1,474,000
Exchange of Stock of our Predecessor and its Subsidiaries for Stock of the Holding Company
A number of our executive officers received shares of our common stock in our restructuring in exchange for their interests in our
predecessor, and a beneficial owner of more than 5% of our voting stock received shares of our common stock in exchange for its
minority interests in each of our limited liability company subsidiaries. The following table shows:
- our executive officers and the beneficial owner of more than 5% of our voting stock that exchanged their ownership interests in our
predecessor or its subsidiaries, as applicable, in exchange for shares of our common stock;
- the number and class of shares of our common stock received by each party;
2002. EDGAR Online, Inc.
- the aggregate value of the shares of common stock received by each party, as of the date of the transaction based on a price of $7.39
per share; and
- the aggregate value of the shares of common stock received by each party at an assumed initial public offering price of $12.00 per
share.
AGGREGATE
VALUE AT
SHARES OF AGGREGATE ASSUMED
SHARES OF CLASS B VALUE INITIAL
CLASS A NON-VOTING ON THE PUBLIC
COMMON COMMON TRANSACTION OFFERING
EXECUTIVE OFFICER OR 5% STOCKHOLDER STOCK STOCK DATE PRICE
----------------------------------- ----------------- ----------------- ------------ ---------------
John S. Katzman................................ 9,703,675 102,160* $72,443,000 $117,670,020
Mark Chernis................................... -- 102,160 755,000 1,225,920
Bruce Task..................................... -- 173,370 1,281,000 2,080,440
Random House TPR, Inc.......................... 2,858,311 -- 21,116,000 34,299,732
* Represents shares that may be deemed to be beneficially owned by Mr. Katzman through his wife, which beneficial ownership Mr.
Katzman disclaims, except to the extent of his pecuniary interest in these shares.
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At the time of our restructuring, we also entered into a stockholders' agreement with our then existing stockholders, including the
executive officers listed above and Random House TPR, Inc., which grants them "piggyback" registration rights with respect to one
company-initiated registration of our securities under the Securities Act. See "Description of Capital Stock" for more information
about these registration rights.
Termination of PSU and SAR Plans
In connection with our restructuring, we terminated our PSU and SAR plans and adopted our 2000 Stock Incentive Plan. A number of
our executive officers and directors held PSUs and SARs. Each such person entered into a conversion agreement with us on April 18,
2000 under which they relinquished their rights to PSUs or SARs, in exchange for a combination of cash, shares of our Class B
non-voting common stock, stock options under our new stock incentive plan and stock of Student Advantage. The following table
shows:
- each executive officer and director who relinquished rights in PSUs or SARs under those plans;
- the consideration received by each person for relinquishing these rights;
- the aggregate value of the consideration received by each person as of the transaction date; and
- the current aggregate value of the consideration received by each person, as of the most recent practicable date.
AGGREGATE
VALUE
SHARES OF CLASS B SHARES OF STOCK ON THE CURRENT
EXECUTIVE OFFICER OR NON-VOTING STOCK OF STUDENT TRANSACTION AGGREGATE
DIRECTOR CASH COMMON STOCK OPTIONS ADVANTAGE DATE VALUE
-------------------- ---------- ----------------- -------- --------------- ----------- ----------
Mark Chernis............ $2,168,967 325,710 277,513 15,111 $4,787,621 $7,547,203
Stephen
Quattrociocchi........ 836,667 125,208 117,285 5,809 1,880,645 2,990,384
Bruce Task.............. 498,267 84,600 64,549 3,925 1,280,448 1,962,485
Linda Nessim-Rubin...... 335,650 54,670 50,863 2,536 809,260 1,292,211
Steven Hodas............ 291,838 44,840 31,460 2,080 634,021 982,819
Stephen Melvin.......... 280,733 42,300 143,820 1,963 603,539 1,459,034
Evan Schnittman......... 163,742 27,562 35,532 1,279 374,076 663,166
Richard Katzman......... 36,542 21,150 25,380 726 196,604 410,125
Peter Taylor............ 20,829 4,230 33,840 196 53,109 228,406
For purposes of calculating aggregate value on the transaction date in the above table we valued:
2002. EDGAR Online, Inc.
- shares of our common stock at $7.39 per share;
- options at the difference between the per share exercise price of the option and $7.39; and
- shares of Student Advantage stock at $5.25 per share, which represents the public market price of this stock on the date of
distribution.
For purposes of calculating current aggregate value in the above table we valued:
- shares of our common stock at an assumed initial public offering price of $12.00 per share;
- options at the difference between an assumed initial public offering price of $12.00 per share and the per share exercise price of the
option; and
- shares of Student Advantage stock at $3.75 per share, which represents the closing price of this stock on October 31, 2000.
Concurrently with the termination of our PSU and SAR plans, we entered into new employment agreements with the executive officers
listed in the above table. For a description of the terms of our employment agreements with Mark Chernis, Stephen Melvin, Stephen
Quattrociocchi and Bruce Task, see "Management -- Employment Agreements."
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SALE OF SERIES A PREFERRED STOCK
On April 18, 2000, we entered into a Series A preferred stock purchase agreement with SGC Partners II, LLC, Olympus Growth Fund
III, L.P. and Olympus Executive Fund, L.P. Under the stock purchase agreement, we issued a total of 3,713,540 shares of our Series A
preferred stock to these purchasers for an aggregate cash purchase price of approximately $27.0 million. SGC Partners II received
2,475,693 shares, Olympus Growth Fund III received 1,225,469 shares and Olympus Executive Fund received 12,378 shares. We also
entered into an investors' rights agreement with these purchasers, providing them with the right to require us to register under the
Securities Act common stock to be received by these purchasers upon conversion of their Series A preferred stock. See "Description of
Capital Stock" for a more complete description of the rights of the holders of our Series A preferred stock.
As a result of the above transaction, SGC Partners II and Olympus Growth Fund III, together with Olympus Executive Fund, became
beneficial owners of more than 5% of our voting stock, on an as converted basis. Additionally, SGC Partners II became entitled to
appoint one director to our board of directors. This right terminates upon the consummation of this offering. Currently, V. Frank
Pottow serves as SGC Partners II's designated director. Mr. Pottow also serves as a Managing Director of SG Capital Partners, the
general partner of SG Merchant Banking Fund L.P., which is the parent of SGC Partners II.
RELATIONSHIP WITH RANDOM HOUSE
During each of 1997, 1998 and 1999, we derived revenue from a number of publication agreements with Random House. Random
House, through its subsidiary Random House TPR, beneficially owns approximately 18.7% of our voting common stock, as of
October 31, 2000, without giving effect to the conversion of our outstanding preferred stock. During these periods, we recognized
revenue from Random House for aggregate royalties, marketing fees, advances, copy editing fees and other fees as follows:
YEAR ENDED YEAR ENDED YEAR ENDED
DECEMBER 31, 1997 DECEMBER 31, 1998 DECEMBER 31,
1999
----------------- -----------------
-----------------
$4,003,248 $2,917,467 $2,717,416
We believe that our transactions with Random House were in our best interests and were made on terms no less favorable to us than
could have been obtained from unaffiliated third parties.
2002. EDGAR Online, Inc.
Random House TPR is also entitled to appoint one director to our board of directors under the terms of our stockholders' agreement.
This right terminates upon the completion of this offering. Currently, Richard Sarnoff serves as Random House TPR's designated
director on our board. Mr. Sarnoff also serves as Executive Vice President and Chief Financial Officer of Random House.
OTHER TRANSACTIONS
During 1997, John S. Katzman, our Chairman and Chief Executive Officer was indebted to us for miscellaneous advances. Interest on
this debt was payable upon demand and accrued at approximately 7% in 1997. The largest outstanding balance was $306,591 on
December 31, 1997. There is currently no outstanding balance.
We are party to an employment agreement, dated April 10, 2000, with Steven Hodas, our Executive Vice President, Strategic
Development. Under that agreement, we agreed to lend Mr. Hodas on a fully non-recourse basis up to an aggregate principal amount
of $250,000 for a purchase of real estate. The loan is for a three-year term subject to earlier prepayment upon the occurrence of
specified events, and accrues interest at 7.3% per year. The loan does not require Mr. Hodas to pay principal or interest during the
term of the loan and is secured by shares of our common stock that he owns. As of October 31, 2000, approximately $85,000 had been
advanced and was outstanding under the loan.
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PRINCIPAL STOCKHOLDERS
The following table shows information with respect to the beneficial ownership of our common stock as of October 31, 2000 and as
adjusted to reflect the sale of the common stock offered by us in this offering, for:
- each person known by us to beneficially own more than 5% of our common stock;
- each of our directors;
- each of our executive officers named in the summary compensation table; and
- all of our directors and executive officers as a group.
Beneficial ownership is determined under the rules of the Commission and includes voting or investment power with respect to the
securities.
Unless indicated otherwise below, the address for each listed director and officer is The Princeton Review, Inc., 2315 Broadway, New
York, New York 10024. Except as indicated by footnote, the persons named in the table have sole voting and investment power with
respect to all shares of common stock shown as beneficially owned by them. The number of shares of common stock outstanding used
in calculating the percentage for each listed person includes the shares of common stock underlying options held by that person that
are exercisable within 60 days following October 31, 2000, but excludes shares of common stock underlying options held by any other
person. Percentage of beneficial ownership is based on 18,901,781 shares of common stock outstanding as of October 31, 2000, which
includes 3,602,566 shares of common stock issuable upon conversion of outstanding shares of preferred stock, and 25,789,928 shares
of common stock outstanding after completion of this offering, which includes an additional 1,488,147 shares of common stock
issuable to the holders of outstanding preferred stock upon the completion of this offering, assuming an initial offering price of $12.00
per share. In the event that the initial public offering price of the shares offered in this offering is greater than $12.99 per share, the
additional shares of common stock referred to in the preceding sentence will not be issued to the holders of preferred stock. In such
case, the percentage of beneficial ownership after this offering will be as described in the footnotes to this table.
2002. EDGAR Online, Inc.
PERCENTAGE
BENEFICIALLY
SHARES OF OWNED
COMMON STOCK -------------------
BENEFICIALLY BEFORE AFTER
NAME OF BENEFICIAL OWNER OWNED OFFERING OFFERING
------------------------ ------------ -------- --------
John S. Katzman(1).......................................... 9,805,833 51.88% 38.02%
Random House TPR, Inc.(2)................................... 2,858,311 15.12 11.08
1540 Broadway
New York, NY 10036
SGC Partners II, LLC(3)..................................... 2,379,279 12.59 13.04
1221 Avenue of the Americas
New York, NY 10020
Entities affiliated with Olympus Growth Fund III, L.P.(4)... 1,189,641 6.29 6.52
Metro Center
One Station Place
Stamford, CT 06902
Mark Chernis(5)............................................. 500,147 2.64 1.93
Bruce Task(6)............................................... 289,789 1.53 1.12
Stephen Melvin(7)........................................... 70,245 * *
Stephen Quattrociocchi(8)................................... 166,353 * *
Richard Katzman(9).......................................... 28,025 * *
V. Frank Pottow(10)......................................... 2,115 * *
John C. Reid(10)............................................ 2,115 * *
Richard Sarnoff(10)......................................... 2,115 * *
Sheree T. Speakman(10)...................................... 2,115 * *
Howard A. Tullman(10)....................................... 8,460 * *
All executive officers and directors as a group
(15 persons)(11).......................................... 11,048,819 57.76% 42.47%
* Less than one percent.
(1) Includes 102,160 shares held by Mr. Katzman's wife. Mr. Katzman disclaims beneficial ownership of these shares, except to the
extent of his pecuniary interest. Also includes 1,438,057 shares held by Katzman Business Holdings, L.P. and 144 shares held by
Katzman Management, Inc. Katzman Management, Inc. is the general partner of Katzman Business Holdings, L.P. and is wholly
owned by
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Mr. Katzman. In the event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per
share, the percentage beneficially owned by Mr. Katzman would be 40.35% after this offering.
(2) Random House TPR, Inc. is a wholly-owned subsidiary of Random House, Inc. which is a wholly-owned subsidiary of
Bertelsmann AG, a private company formed under German law. In the event that the initial public offering price of the shares being
offered in this offering is greater than $12.99 per share, the percentage beneficially owned would be 11.76% after this offering.
(3) Represents 2,379,279 shares of common stock issuable upon conversion of 2,475,693 shares of preferred stock prior to the
offering. Percentage of beneficial ownership after offering includes an additional 982,834 shares of common stock issuable to SGC
Partners II upon completion of this offering, assuming an initial public offering price of $12.00 per share. In the event that the initial
public offering price is greater than $12.99 per share, the percentage beneficially owned after this offering would be
9.79%. SGC Partners II is a wholly-owned subsidiary of SG Merchant Banking Fund. The general partner of SG Merchant Banking
Fund is SG Capital Partners. SG Cowen Securities Corporation, a wholly owned subsidiary of Societe Generale, is the managing
member of SG Capital Partners. Societe Generale is a public company formed under French law. As a result of these relationships, SG
Merchant Banking Fund, SG Capital Partners, SG Cowen Securities Corporation and Societe Generale may each be deemed to share
beneficial ownership of these shares. Each of these entities disclaims beneficial ownership.
(4) Represents 1,177,745 shares of common stock issuable to Olympus Growth Fund III and 11,896 shares of common stock issuable
to Olympus Executive Fund upon conversion of 1,225,469 shares of preferred stock held by Olympus Growth Fund III and 12,378
shares of preferred stock held by Olympus Executive Fund prior to the offering. Percentage of beneficial ownership after offering
includes an additional 486,502 shares of common stock issuable to Olympus Growth Fund III and an additional 4,914 shares of
2002. EDGAR Online, Inc.
common stock issuable to Olympus Executive Fund upon completion of this offering, assuming an initial public offering price of
$12.00 per share. In the event that the initial public offering price is greater than $12.99 per share, the percentage beneficially owned
after this offering would be
4.90%. Olympus Growth Fund III and Olympus Executive Fund are Delaware limited partnerships principally engaged in making
investments. OGP III, L.L.C., a Delaware limited liability company is the sole general partner of Olympus Growth Fund III, and OEF,
L.P., a Delaware limited partnership, is the sole general partner of Olympus Executive Fund. The five members of OGP III are Robert
S. Morris, Louis J. Mischianti, James A. Conroy, Paul
A. Rubin and L. David Cardenas. The three general partners of OEF are RSM, L.L.C., LJM, L.L.C. and Conroy, L.L.C. Each of RSM,
LJM and Conroy is a Delaware limited liability company. The majority owner of RSM is Robert S. Morris. The majority owner of
LJM is Louis J. Mischianti. The majority owner of Conroy is James A. Conroy. As a result of these relationships, OGP III, OEF, RMS,
LJM, Conroy, Robert S. Morris, Louis J. Mischianti, James A. Conroy, Paul A. Rubin and L. David Cardenas may each be deemed to
share beneficial ownership of these shares. Each of these entities and individuals disclaims beneficial ownership.
(5) Includes 71,300 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by Mr. Chernis would be 2.05% after this offering.
(6) Includes 31,819 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by Mr. Task would be 1.19% after this offering.
(7) Includes 26,967 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by Mr. Melvin would be less than 1% after this offering.
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(8) Includes 41,145 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by Mr. Quattrociocchi would be less than 1% after this offering.
(9) Includes 6,875 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by Mr. Katzman would be less than 1% after this offering.
(10) Includes 2,115 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In the
event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the percentage
beneficially owned by each of Mr. Pottow, Mr. Reid, Mr. Sarnoff, Mr. Tullman and Ms. Speakman would be less than 1% after this
offering.
(11) Includes 225,458 shares of common stock issuable upon exercise of options exercisable within 60 days of October 31, 2000. In
the event that the initial public offering price of the shares being offered in this offering is greater than $12.99 per share, the
percentage beneficially owned by all executive officers and directors as a group would be 45.05% after this offering.
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DESCRIPTION OF CAPITAL STOCK
Upon the completion of this offering, our amended and restated certificate of incorporation will authorize the issuance of up to
100,000,000 shares of common stock, par value $0.01 per share, and 5,000,000 shares of preferred stock, par value $0.01 per share,
the rights and preferences of which may be established from time to time by our board of directors. As of October 31, 2000,
20,389,928 shares of common stock were outstanding, assuming the conversion of all preferred stock upon the completion of this
offering. As of October 31, 2000, we had 93 stockholders.
COMMON STOCK
Upon the completion of this offering, all shares of Class B non-voting common stock will automatically convert into Class A common
stock, which will be redesignated as common stock. Each holder of common stock is entitled to one vote for each share on all matters
to be voted upon by the stockholders. There are no cumulative voting rights. Subject to preferences that may be applicable to any
2002. EDGAR Online, Inc.
preferred stock outstanding at the time, holders of common stock are entitled to receive ratable dividends, if any, as may be declared
from time to time by the board of directors out of funds legally available for that purpose. In the event of a liquidation, dissolution or
winding up of The Princeton Review, holders of common stock would be entitled to share in our assets remaining after the payment of
liabilities and liquidation preferences on any outstanding preferred stock. Holders of common stock have no preemptive or conversion
rights or other subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are, and the shares of common stock offered by us in this offering, when issued and paid for, will
be fully paid and nonassessable.
PREFERRED STOCK
Series A Preferred Stock
Upon the completion of this offering, all outstanding shares of Series A preferred stock will convert into shares of common stock in
accordance with the terms described below. As of October 31, 2000, we had 3,748,548 shares of Series A preferred stock outstanding.
Prior to the conversion of these shares into common stock, the holders of the Series A preferred stock are entitled to, among other
substantial rights:
- voting rights equivalent to the voting rights they would hold as if their holdings were converted to common stock at the then
applicable conversion rate, other than the right to elect directors;
- the right to designate one member of our board of directors;
- distribution and liquidation preferences;
- the option to convert to common stock at any time on a .961-for-one basis, subject to anti-dilution adjustments;
- anti-dilution protection;
- covenants requiring their authorization of enumerated transactions;
- a mandatory redemption provision whereby any holder may give a redemption notice at any time after March 31, 2005 and cause us
to redeem all or a portion of their shares within 90 days of receipt of the redemption notice, with the redemption price defined as the
original purchase price multiplied by 1.9, which multiple is to be increased if we breach certain covenants contained in the investor
rights agreement among us and the purchasers of the Series A preferred stock; and
- automatic conversion upon the effective date of a qualified initial public offering on a .961-for-one basis, subject to anti-dilution
adjustments, except that, in the event that the initial public offering price of our common stock in this offering is less than $12.99 per
share, then, instead of converting on a .961-for-one basis upon the completion of this offering, the holders of Series A preferred stock
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will receive, upon the completion of this offering, in exchange for their shares of Series A preferred stock:
(1)first, to reflect their pre-offering ownership percentage, such number of shares of our common stock that could be purchased at the
per share initial public offering price for a dollar amount equal to
(a) 15.66% multiplied by (b) our total valuation immediately prior to this offering, minus $27.0 million; and
(2)second, $27.0 million in common stock at the initial public offering price.
Accordingly, at an assumed initial offering price of $12.00 per share, a total of 5,090,713 shares of common stock will be issued to the
holders of the Series A preferred stock upon conversion of the Series A preferred stock upon completion of this offering. In the event
that the initial public offering price of the shares offered in this offering is greater than $12.99 per share, then a total of 3,602,566
shares of common stock will be issued to the holders of the Series A preferred stock upon conversion of the Series A preferred stock
upon completion of this offering.
The holders of Series A preferred stock are also entitled to demand and incidental registration rights.
Undesignated Preferred Stock
2002. EDGAR Online, Inc.
Upon the completion of this offering, the board of directors will be authorized, subject to Delaware law, without stockholder approval,
from time to time, to issue up to an aggregate of 5,000,000 new shares of preferred stock in one or more series. The board of directors
can fix the rights, preferences and privileges of the shares of each series and any qualifications, limitations or restrictions. Issuance of
preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could have
the effect of making it more difficult for a third party to acquire, or of discouraging a third party from attempting to acquire, a majority
of our outstanding voting stock. We have no present plans to issue any shares of preferred stock.
WARRANTS
As of October 31, 2000, there were outstanding warrants to purchase such number of shares of common stock as is obtained by
dividing $1.2 million by the initial public offering price of our common stock in this offering. These warrants were issued in June 2000
in connection with the settlement of a lawsuit against the company. These warrants are exercisable for an 18-month period, beginning
with the date of completion of this offering, at an exercise price equal to the initial public offering price of our common stock in this
offering. The warrants may also be exercised without payment of the cash exercise price in the following two ways:
- Receive shares without paying exercise price. The holders may elect to receive the number of shares of common stock that they
would be able to purchase at the market price on the date of exercise with the amount of cash equal to (a) the aggregate market price of
the shares on the date of exercise minus (b) the aggregate initial public offering price of the shares; or
- Receive cash instead of shares. For a period of 60 days immediately after the warrants become exercisable, the holders may elect to
receive a cash payment equal to (a) the aggregate market price of the shares on the date of exercise minus (b) the aggregate initial
public offering price of the shares, provided that this cash payment may not exceed 50% of the aggregate initial public offering price
of the shares.
REGISTRATION RIGHTS
After completion of this offering, the holders of 18,894,125 shares of our common stock will be entitled to registration rights. These
rights include rights to require us to include their common stock in future registration statements we file with the Commission and, in
some cases, demand registration rights. Some holders may also require us to register their common stock once we are eligible to use a
short-form registration statement. However, holders of substantially all of these shares have agreed not to exercise their
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registration rights until 180 days after the date of this prospectus. Shares of common stock registered upon the exercise of demand
registration rights would be freely tradable without restriction under the Securities Act immediately upon the effectiveness of that
registration.
CHARTER AND BY-LAW PROVISIONS AND DELAWARE ANTI-TAKEOVER STATUTE
The authorization of undesignated preferred stock as described above under "Description of Capital Stock" makes it possible for the
board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to
change control of our company. These and other provisions may have the effect of deterring hostile takeovers or delaying changes in
control or management of our company.
Under Delaware law, we may not engage in a "business combination," which includes a merger or sale of more than 10% of our assets,
with any "interested stockholder," namely, a stockholder who owns 15% or more of our outstanding voting stock, as well as affiliates
and associates of an interested stockholder, for three years following the time that stockholder became an interested stockholder
unless:
- the transaction in which the stockholder became an interested stockholder is approved by our board of directors prior to the time the
interested stockholder attained that status;
- upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding shares owned by persons who
are directors and also officers; or
- at or after the time the stockholder became an interested stockholder, the business combination is approved by the board of directors
and authorized at an annual or special meeting of stockholders by the affirmative vote of at least two-thirds of the outstanding voting
stock which is not owned by the interested stockholder.
2002. EDGAR Online, Inc.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Continental Stock Transfer & Trust Company.
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SHARES ELIGIBLE FOR FUTURE SALE
If our stockholders sell substantial amounts of common stock, including shares issued upon the exercise of outstanding options or
warrants, in the public market following this offering, the market price of our common stock could decline. These sales also could
make it more difficult for us to sell equity or equity-related securities in the future and at a time and price that we deem appropriate.
Upon completion of this offering, we will have outstanding an aggregate of 25,789,928 shares of common stock, assuming no exercise
of the underwriters' over-allotment option and no exercise of outstanding options or warrants. Of these shares, all of the shares sold in
this offering will be freely tradeable without restriction or further registration under the Securities Act, unless these shares are
purchased by "affiliates" as that term is defined in Rule 144 promulgated under the Securities Act. The remaining 20,389,928 shares of
common stock held by existing stockholders are restricted securities. Restricted securities may be sold in the public market only if
registered or if they qualify for an exemption from registration described below under Rules 144,
144(k) or 701 promulgated under the Securities Act.
As a result of the contractual restrictions described below and the provisions of Rules 144, 144(k) and 701, all 20,389,928 restricted
shares will be available for sale in the public market upon the expiration of the lock-up agreements described below, 180 days after the
date of this prospectus, subject, in some cases, to volume limitations.
LOCK-UP AGREEMENTS
Substantially all of our stockholders including all of our executive officers and directors have agreed that they will not, without the
prior written consent of Chase Securities Inc., offer, sell or otherwise dispose of any shares of common stock, options or warrants to
acquire shares of common stock or securities exchangeable for or convertible into shares of common stock owned by them during the
180-day period following the date of this prospectus.
RULE 144
In general, under Rule 144 as currently in effect, beginning 90 days after the date of this prospectus, a person who has beneficially
owned shares of our common stock for at least one year would be entitled to sell within any three-month period a number of shares that
does not exceed the greater of:
- 1% of the number of shares of our common stock then outstanding, which will equal approximately 257,899 shares immediately after
this offering; or
- the average weekly trading volume of our common stock on the Nasdaq National Market during the four calendar weeks preceding
the filing of a notice on Form 144 with respect to that sale.
Sales under Rule 144 are also subject to manner of sale provisions and notice requirements and to the availability of current public
information about us.
RULE 144(k)
Under Rule 144(k), a person who is not deemed to have been one of our affiliates at any time during the 90 days preceding a sale, and
who has beneficially owned the shares proposed to be sold for at least two years, including the holding period of any prior owner other
than an affiliate, is entitled to sell those shares without complying with the manner of sale, public information, volume limitations or
notice provisions of Rule 144. Therefore, unless otherwise restricted, Rule 144(k) shares may be sold immediately upon the
completion of this offering.
RULE 701
In general, under Rule 701 of the Securities Act as currently in effect, any of our employees, consultants or advisors who purchases
shares of our common stock from us in connection with a compensatory stock or option plan or other written agreement is eligible to
2002. EDGAR Online, Inc.
resell those shares 90 days after the date of this
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prospectus in reliance on Rule 144, but without compliance with some of the restrictions, including the holding period, contained in
Rule 144.
REGISTRATION RIGHTS
After this offering, holders of an aggregate of 19,894,125 shares of our common stock, or their transferees, will be entitled to rights
with respect to the registration of those shares under the Securities Act. These sales could have a material adverse effect on the trading
price of our common stock.
STOCK OPTIONS
Shortly after this offering, we intend to file a registration statement on Form S-8 covering the shares of common stock reserved for
issuance under our stock incentive plan. Shares of common stock registered under any registration statement will, subject to Rule 144
volume limitations applicable to affiliates, be available for sale in the open market, unless the shares are subject to vesting restrictions
or the lock-up agreements described above.
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UNDERWRITING
Subject to the terms and conditions of the underwriting agreement, dated as of , 2000, the underwriters named below, through their
representatives, Chase Securities Inc., U.S. Bancorp Piper Jaffray Inc. and First Union Securities, Inc. have severally agreed to
purchase from us the following numbers of shares of common stock:
UNDERWRITER NUMBER OF
SHARES
---------------------------------------------------
----------------
Chase Securities Inc. .............................
U.S. Bancorp Piper Jaffray Inc.....................
First Union Securities, Inc. ......................
---------
Total............................................ 5,400,000
=========
The underwriting agreement provides that the obligations of the underwriters are conditioned on the absence of any material adverse
change in our business and the receipt of certificates, opinions and letters from us, our counsel and our independent auditors. The
underwriters are committed to purchase all shares of common stock offered in this prospectus if any shares are purchased.
The underwriters propose to offer the shares of common stock directly to the public at the public offering price set forth on the cover
page of this prospectus and to dealers at the public offering price less a concession not in excess of $ per share. The underwriters may
allow and the dealers may reallow a concession not in excess of $ per share to other dealers. After the public offering of the shares, the
underwriters may change the offering price and other selling terms. The representatives of the underwriters have informed us that the
underwriters do not intend to confirm discretionary sales in excess of 5% of the shares of common stock offered by this prospectus.
We have granted to the underwriters an option, exercisable no later than 30 days after the date of this prospectus, to purchase up to
810,000 additional shares of common stock at the public offering price, less the underwriting discount set forth on the cover page of
this prospectus. To the extent that the underwriters exercise this option, each underwriter will have a firm commitment to purchase a
number of shares that approximately reflects the same percentage of total shares the underwriter purchased in the above table. We will
be obligated to sell shares to the underwriters to the extent the option is exercised. The underwriters may exercise this option only to
cover over-allotments made in connection with the sale of common stock offered by this prospectus.
The following table shows the per share and total underwriting discounts and commissions that we will pay to the underwriters. The
underwriting discounts and commissions were determined based on an arms' length negotiation between the representatives of the
2002. EDGAR Online, Inc.
underwriters and us. These amounts are shown assuming both no exercise and full exercise of the underwriters' over-allotment option
to purchase additional shares. We do not expect the underwriting discounts and commissions per share of our common stock to exceed
7% of the initial public offering price per share of our common stock.
PAID BY THE PRINCETON REVIEW
------------------------------
NO EXERCISE FULL EXERCISE
------------- -------------
Per share................................................... $ $
Total....................................................... $ $
We estimate that the total expenses of the offering, excluding underwriting discounts and commissions, will be approximately
$2,100,000. The offering of the shares is made for delivery when, as and if accepted by the underwriters and subject to prior sale and
to withdrawal, cancellation or modification of the offering without notice. The underwriters reserve the right to reject an order for the
purchase of shares in whole or in part.
88
93
We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute
to payments the underwriters may be required to make in respect of those liabilities.
Substantially all of our stockholders holding in the aggregate 20,389,928 shares of common stock, and including all of our executive
officers and directors, have agreed that they will not, without the prior written consent of Chase Securities Inc., offer, sell or otherwise
dispose of any shares of common stock, options or warrants to acquire shares of common stock or securities exchangeable for or
convertible into shares of common stock owned by them during the 180-day period following the date of this prospectus. We have
agreed that we will not, without the prior written consent of Chase Securities Inc., offer, sell or otherwise dispose of any shares of
common stock, options or warrants to acquire shares of common stock or securities exchangeable for or convertible into shares of
common stock during the 180-day period following the date of this prospectus, except that we may issue shares upon the exercise of
options granted prior to the date of this prospectus and may grant additional options under our stock incentive plan, provided that,
without the prior written consent of Chase Securities Inc., any additional options will not be exercisable during the 180-day period.
Chase Securities Inc. may, in its sole discretion and at any time or from time to time without notice, release all or any portion of the
securities subject to the lock-up agreements as described above. Chase Securities Inc. has indicated that it has no current intent to
waive any provisions of its lock-up agreement with the stockholders or with us. In deciding whether to grant a waiver, Chase Securities
Inc. would consider various factors, which may include the market prices and trading volumes of the common stock at that time,
market conditions generally, the size and timing of the requested waiver and any other circumstances that Chase Securities Inc.
considers relevant at such time.
At our request, the underwriters have reserved up to shares of common stock to be sold in this offering and offered for sale, at the
public offering price, to our directors, officers, employees, business associates, such as customers and suppliers, and persons related
to, or affiliated with such persons. U.S. Bancorp Piper Jaffray Inc. is administering a directed share program for us. We will provide
U.S. Bancorp Piper Jaffray Inc. with a list of names of persons that we would like to ask to participate in the program. These reserved
shares will be sold at the initial public offering price that appears on the cover of this prospectus. The number of shares available for
sale to the general public in this offering will be reduced to the extent these persons purchase the reserved shares. Any reserved shares
not purchased will be offered to the general public on the same basis as other shares offered by this prospectus.
Persons participating in this offering may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price
of the common stock at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids,
effecting syndicate covering transactions or imposing penalty bids. A stabilizing bid means the placing of any bid or the effecting of
any purchase for the purpose of pegging, fixing or maintaining the price of the common stock. A syndicate covering transaction means
the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position created in
connection with the offering. A penalty bid means an arrangement that permits the underwriters to reclaim a selling concession from a
syndicate member in connection with the offering when shares of common stock sold by the syndicate member are purchased in
syndicate covering transactions. These transactions may be effected on the Nasdaq National Market, in the over-the-counter market or
otherwise. Stabilizing, if commenced, may be discontinued at any time.
Before this offering, there was no public market for the common stock. The initial public offering price for the common stock will be
determined by negotiations between us and the representatives. Among the factors to be considered in determining the initial public
2002. EDGAR Online, Inc.
offering price will be prevailing market and economic conditions, our revenue and earnings, market valuations of other companies
engaged in activities similar to ours, estimates of our business potential and prospects, the present state of our business operations, our
management and other factors deemed relevant.
Until November 2000, an affiliate of Chase Securities Inc., The Chase Manhattan Bank, was the lender under our $1.5 million line of
credit.
89
94
LEGAL MATTERS
The validity of the shares of common stock offered through this prospectus will be passed upon for us by Patterson, Belknap, Webb &
Tyler LLP, New York, New York. Selected legal matters in connection with this offering will be passed upon for the underwriters by
Dewey Ballantine LLP, New York, New York.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule at December 31, 1998 and
1999 and for the years then ended, as set forth in their report. We have included these financial statements in the prospectus and have
included the schedule elsewhere in the registration statement in reliance on Ernst & Young LLP's reports, given on their authority as
experts in accounting and auditing.
The consolidated financial statements for the year ended December 31, 1997 included in this prospectus and the related financial
statement schedule included elsewhere in the registration statement have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report appearing herein and elsewhere in the registration statement, and are included in reliance upon the
report of such firm given upon their authority as experts in accounting and auditing.
Caras & Shulman, P.C., independent auditors, have audited the combined financial statements of Princeton Review of Boston, Inc. and
Princeton Review of New Jersey, Inc. at December 31, 1998 and 1999 and for the years then ended, as set forth in their report. We
have included these financial statements in the prospectus and elsewhere in the registration statement in reliance on Caras & Shulman,
P.C.'s report, given on their authority as experts in accounting and auditing.
CHANGE IN ACCOUNTANTS
The Princeton Review, Inc., with the approval of its board of directors, on January 11, 1999 dismissed its then independent auditors
Deloitte & Touche LLP, and engaged Ernst & Young LLP as its independent auditors. Ernst & Young LLP's report on the financial
statements of The Princeton Review, Inc. for the fiscal years ended December 31, 1999 and 1998, and the financial statements for the
year ended December 31, 1997 reported on by Deloitte & Touche LLP that are included in this prospectus were not qualified or
modified as to uncertainty, audit scope, or accounting principles. During Deloitte & Touche LLP's appointment as independent
auditors, there was no disagreement on any matter of accounting principles or practices, financial statements disclosure or auditing
scope or procedure which if not resolved to Deloitte & Touche LLP's satisfaction would have caused Deloitte & Touche LLP to make
reference to the subject matter of disagreement in connection with Deloitte & Touche LLP's report on the financial statements for the
year indicated above.
90
95
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration statement on Form S-1, including amendments to it,
relating to the common stock offered by us. This prospectus does not contain all of the information in the registration statement and its
exhibits and schedules. For further information with respect to The Princeton Review and our common stock, you should review the
registration statement and its exhibits and schedules. A copy of the registration statement may be inspected without charge at the
Commission's principal office in Washington, D.C. and copies of all or any part of the registration statement may be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, the New York Regional Office located
at Seven World Trade Center, New York, New York 10048, and the Chicago Regional Office located at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, upon payment of fees prescribed by the Commission. You may obtain information on the
operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The Commission maintains a Web site that
contains reports, proxy and information statements and other information regarding registrants that file electronically with the
Commission. The address of the Commission's Web site is http://www.sec.gov.
2002. EDGAR Online, Inc.
We intend to furnish our stockholders with annual reports containing audited financial statements certified by our independent
auditors.
91
96
INDEX TO FINANCIAL STATEMENTS
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
Report of Independent Auditors.............................. F-2
Independent Auditors' Report................................ F-3
Consolidated Balance Sheets................................. F-4
Consolidated Statements of Operations....................... F-5
Consolidated Statements of Stockholders' Equity (Deficit)
and Redeemable Stock...................................... F-6
Consolidated Statements of Cash Flows....................... F-7
Notes to Consolidated Financial Statements.................. F-8
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND THE PRINCETON
REVIEW OF BOSTON, INC.
Independent Auditors' Report................................
F-35
Combined Balance Sheets.....................................
F-36
Combined Statements of Income...............................
F-37
Combined Statements of Changes in Stockholders' Equity......
F-38
Combined Statements of Cash Flows...........................
F-39
Notes to Combined Financial Statements......................
F-40
F-1
97
REPORT OF INDEPENDENT AUDITORS
To the Stockholders of
The Princeton Review, Inc. and Subsidiaries
We have audited the accompanying consolidated balance sheets of The Princeton Review, Inc. and Subsidiaries (the "Company") as of
December 31, 1998 and 1999, and the related consolidated statements of operations, stockholders' equity (deficit) and redeemable
stock and cash flows for the years then ended. These financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that
we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.
An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial
position of The Princeton Review, Inc. and Subsidiaries as of December 31, 1998 and 1999, and the consolidated results of their
operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United
States.
2002. EDGAR Online, Inc.
/s/ ERNST & YOUNG
LLP
New York, New York
March 16, 2000, except for Note 15, as
to which the date is November 16, 2000
F-2
98
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
The Princeton Review, Inc. and Subsidiaries
We have audited the accompanying consolidated statements of operations, stockholders' equity and redeemable stock and cash flows
of The Princeton Review, Inc. and Subsidiaries (the "Company") for the year ended December 31, 1997. Our audit also included the
financial statement schedule listed in Item
16(b). These financial statements and financial statement schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and financial statement schedule based on our audit.
We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards
require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material
misstatement.
An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated results
of The Princeton Review, Inc. and Subsidiaries' operations and their cash flows for the year ended December 31, 1997, in conformity
with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule,
when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly in all material respects the
information set forth therein.
/s/ DELOITTE & TOUCHE
LLP
New York, New York
August 5, 1998
F-3
99
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
2002. EDGAR Online, Inc.
2002. EDGAR Online, Inc.
DECEMBER 31,
------------------------- SEPTEMBER 30,
1998 1999 2000
----------- ----------- -------------
(UNAUDITED)
ASSETS
Current assets:
Cash and cash equivalents................................. $ 1,518,976 $ 2,658,081 $11,586,493
Accounts receivable, net of allowance of $670,451 in 1998,
$720,183 in 1999 and $480,623 in 2000 (unaudited)....... 1,563,792 4,397,020 5,033,401
Account receivable -- related parties..................... 1,657,033 1,989,663 1,997,405
Other receivables......................................... 80,517 34,960 10,275
Other receivables -- student loans........................ 2,247,838 -- --
Other receivables -- related parties...................... 253,015 398,082 346,102
Inventories............................................... 576,926 773,963 474,198
Prepaid expenses.......................................... 179,882 303,854 882,536
Securities, available for sale............................ -- 34,833,656 5,859,248
Other assets.............................................. 772,453 333,146 1,857,473
----------- ----------- -----------
Total current assets.................................... $ 8,850,432 $45,722,425 $28,047,131
Furniture, fixtures, equipment and software development,
net....................................................... 1,846,097 3,157,848 6,182,076
Franchise costs, net of accumulated amortization of $290,644
in 1998, $150,772 in 1999 and $176,430 in 2000
(unaudited)............................................... 212,624 190,032 227,035
Territorial marketing rights, net of accumulated
amortization of $395,681 in 1998, $506,105 in 1999 and
$588,923 in 2000 (unaudited).............................. 1,812,730 1,702,306 1,619,488
Publishing rights, net of accumulated amortization of
$245,900 in 1998, $318,900 in 1999 and $373,650 in 2000
(unaudited)............................................... 1,515,100 1,442,100 1,387,350
Deferred income taxes....................................... 365,000 560,000 6,847,200
Investments in affiliates................................... -- -- 587,155
Other assets................................................ 1,104,569 922,846 2,845,564
----------- ----------- -----------
Total assets................................................ $15,706,552 $53,697,557 $47,742,999
=========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable.......................................... $ 1,617,191 $ 2,150,917 $ 1,262,117
Accrued expenses and taxes payable........................ 3,270,511 3,929,390 6,023,987
Accrued expenses -- PSU's................................. 348,050 2,310,000 --
Accrued expenses -- related parties....................... -- 223,750 201,740
Line of credit............................................ -- 700,000 --
Current maturities of long-term debt...................... 168,003 390,206 486,039
Current maturities long-term debt -- student loans........ 2,247,838 -- --
Deferred income........................................... 1,480,420 2,463,687 5,808,752
Book advances............................................. -- 1,962,743 471,778
Book advances -- related parties.......................... 716,766 675,000 492,500
Deferred income taxes..................................... -- 1,461,000 2,097,450
----------- ----------- -----------
Total current liabilities............................... $ 9,848,779 $16,266,693 $16,844,363
Long-term debt.............................................. 264,476 538,051 681,813
Minority interest........................................... 2,527,219 3,112,299 --
Series A redeemable convertible preferred stock, $.01 par
value; 5,000,000 shares authorized, none issued at
December 31, 1998 and 1999, 3,748,548 issued and
outstanding at September 30, 2000, liquidation preference
of $29,267,394 at September 30, 2000...................... -- -- 27,868,847
Class B redeemable non-voting common stock, $.01 par value;
10,000,000 shares authorized, 915,473 issued and 842,205
outstanding at December 31, 1998 and 1999 and 2,737,229
shares issued and outstanding at September 30, 2000....... 256,932 256,932 6,989,054
Stockholders' equity (deficit):
Class A common stock, $.01 par value; 25,000,000 shares
authorized, 9,561,724 issued and outstanding at December
31, 1998 and 1999 and 12,561,986 shares issued and
outstanding at September 30, 2000......................... 95,617 95,617 125,620
Additional paid-in capital.................................. 7,666,671 7,666,671 --
Accumulated deficit......................................... (4,750,544) (7,334,326) (7,988,898)
Accumulated other comprehensive income...................... -- 33,298,218 3,310,091
Deferred compensation....................................... -- -- (87,891)
----------- ----------- -----------
3,011,744 33,726,180 (4,641,078)
Treasury stock, 73,268 shares of Class B common stock at
December 31, 1998 and 1999 and 0 shares at September 30,
2000, at cost............................................. (202,598) (202,598) --
----------- ----------- -----------
Total stockholders' equity (deficit)........................ 2,809,146 33,523,582 (4,641,078)
----------- ----------- -----------
Total liabilities and stockholders' equity.................. $15,706,552 $53,697,557 $47,742,999
=========== =========== ===========
2002. EDGAR Online, Inc.
See accompanying notes.
F-4
100
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------------------- --------------------------
1997 1998 1999 1999 2000
----------- ----------- ----------- ----------- ------------
(UNAUDITED)
Revenue
Instruction and Guidance............................... $27,379,841 $28,322,062 $29,900,865 $23,644,621 $ 27,282,698
Review.com............................................. 5,133,837 4,464,169 5,289,095 3,893,628 3,756,393
Homeroom.com........................................... -- 959,388 5,112,669 3,133,674 3,114,840
----------- ----------- ----------- ----------- ------------
Total revenue........................................ 32,513,678 33,745,619 40,302,629 30,671,923 34,153,931
----------- ----------- ----------- ----------- ------------
Cost of revenue
Instruction and Guidance............................... 10,575,607 9,844,248 9,759,264 7,338,387 8,922,321
Review.com............................................. 2,716,686 1,672,093 1,469,445 816,986 799,420
Homeroom.com........................................... -- 383,755 1,941,569 800,927 620,336
----------- ----------- ----------- ----------- ------------
Total cost of revenue................................ 13,292,293 11,900,096 13,170,278 8,956,300 10,342,077
----------- ----------- ----------- ----------- ------------
Gross profit......................................... 19,221,385 21,845,523 27,132,351 21,715,623 23,811,854
Operating expenses
Selling, general and administrative.................... 17,918,550 22,030,210 28,815,126 18,747,317 40,427,601
Research and development............................... 1,012,653 1,173,730 878,165 518,616 420,546
----------- ----------- ----------- ----------- ------------
Total operating expenses............................. 18,931,203 23,203,940 29,693,291 19,265,933 40,848,147
----------- ----------- ----------- ----------- ------------
Operating income(loss) from continuing operations........ 290,182 (1,358,417) (2,560,940) 2,449,690 (17,036,293)
Gain on distribution/sale of securities and other
assets................................................. 522,501 732,476 1,048,773 -- 7,597,226
Interest expense......................................... (157,207) (147,744) (87,931) (44,048) (104,623)
Other income............................................. 86,279 79,194 90,268 42,111 473,199
----------- ----------- ----------- ----------- ------------
Income (loss) from continuing operations before minority
interest, equity interest in operations of affiliates
and (provision) benefit for income taxes............... 741,755 (694,491) (1,509,830) 2,447,753 (9,070,491)
Minority interests' share of income in subsidiaries...... (472,702) (505,102) (585,080) (512,736) (50,129)
Equity interest in operations of affiliates.............. -- -- -- (412,845)
----------- ----------- ----------- ----------- ------------
Income (loss) from continuing operations before
(provision) benefit for income taxes................... 269,053 (1,199,593) (2,094,910) 1,935,017 (9,533,465)
(Provision) benefit for income taxes..................... 188,340 (214,815) 50,932 (59,511) 6,531,794
----------- ----------- ----------- ----------- ------------
Income (loss) from continuing operations................. 457,393 (1,414,408) (2,043,978) 1,875,506 (3,001,671)
Discontinued operations:
Loss from operations of discontinued software division,
net of tax........................................... (1,846,237) (643,947) -- -- --
Loss from operations of discontinued student loan
division, net of tax................................. (654,582) (706,014) -- -- --
Income on disposal of discontinued software division,
net of tax........................................... -- 4,873,810 -- -- --
----------- ----------- ----------- ----------- ------------
Income (loss) from discontinued operations, net of tax... (2,500,819) 3,523,849 -- -- --
----------- ----------- ----------- ----------- ------------
Net income (loss)........................................ $(2,043,426) $ 2,109,441 $(2,043,978) $ 1,875,506 $ (3,001,671)
Accreted dividends on Series A redeemable preferred
stock.................................................. -- -- -- -- (2,267,394)
----------- ----------- ----------- ----------- ------------
Net income (loss) attributed to common stockholders...... (2,043,426) 2,109,441 (2,043,978) $ 1,875,506 $ (5,269,065)
=========== =========== =========== =========== ============
Net income (loss) per share -- basic and diluted:
Income (loss) from continuing operations............... $ 0.04 $ (0.14) $ (0.20) $ 0.18 $ (0.22)
Income (loss) from discontinued operations............. (0.24) 0.34 -- -- --
----------- ----------- ----------- ----------- ------------
Net income (loss) per share -- basic and
diluted................................................ $ (0.20) $ 0.20 $ (0.20) $ 0.18 $ (0.22)
=========== =========== =========== =========== ============
Weighted average basic and diluted shares used in
computing net income (loss) per share.................. 10,403,934 10,403,934 10,403,934 10,403,934 13,667,455
=========== =========== =========== =========== ============
Proforma income tax (provision) benefit assuming C-Corp
status (unaudited)..................................... $ 876,994 $(1,007,103) $ 803,631 $ (834,732) $ 5,457,906
=========== =========== =========== =========== ============
Proforma net income (loss) from continuing operations
(unaudited)............................................ $ 1,146,047 $(2,206,696) $(1,291,279) $ 1,100,285 $ (4,075,559)
=========== =========== =========== =========== ============
Proforma net income (loss) per share -- basic and diluted
(unaudited)............................................ $ 0.11 $ (0.21) $ (0.12) $ 0.11 $ (0.30)
=========== =========== =========== =========== ============
See accompanying notes.
F-5
101
2002. EDGAR Online, Inc.
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) AND REDEEMABLE STOCK
2002. EDGAR Online, Inc.
REDEEMABLE STOCK STOCKHOLDERS' EQUITY (DEFICIT)
------------------------------------------------ -----------------------------------
SERIES A CLASS B
CAPITAL STOCK
REDEEMABLE CONVERTIBLE REDEEMABLE NON-VOTING ---------------------
PREFERRED STOCK COMMON STOCK CLASS A COMMON STOCK ADDITIONAL
----------------------- ---------------------- --------------------- PAID-IN
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL
--------- ----------- --------- ---------- ---------- -------- -----------
Balance at December 31, 1996.......... -- -- 842,205 $ 256,932 9,561,724 $ 95,617 $ 7,666,671
Distributions to stockholders........
Net loss.............................
--------- ----------- --------- ---------- ---------- -------- -----------
Balance at December 31, 1997.......... -- -- 842,205 256,932 9,561,724 95,617 7,666,671
Distributions to stockholders........ -- -- -- -- -- -- --
Net income........................... -- -- -- -- -- -- --
--------- ----------- --------- ---------- ---------- -------- -----------
Balance at December 31, 1998.......... -- -- 842,205 256,932 9,561,724 95,617 7,666,671
Distributions to stockholders........ -- -- -- -- -- -- --
Comprehensive income
Net loss........................... -- -- -- -- -- -- --
Unrealized gain on securities, net
of tax........................... -- -- -- -- -- -- --
Comprehensive income................. -- -- -- -- -- -- --
--------- ----------- --------- ---------- ---------- -------- -----------
Balance at December 31, 1999.......... -- -- 842,205 256,932 9,561,724 95,617 7,666,671
Distributions to stockholders
(unaudited).......................... -- -- -- -- -- -- --
Distributions of securities, available
for sale (unaudited)................. -- -- -- -- -- -- --
Issuance of Princeton Review
Publishing LLC Units (unaudited)..... -- -- -- -- -- -- 1,100,932
Effect of termination of S-Corp.
(unaudited) ......................... -- -- -- -- -- -- (10,758,873)
Minority interest (unaudited)......... -- -- -- -- -- -- 3,162,428
Issuance of employee options
(unaudited).......................... -- -- -- -- -- -- 738,519
Issuance of Series A redeemable
convertible preferred stock
(unaudited).......................... 3,748,548 $25,601,453 -- -- -- -- (191,964)
Issuance of Class B redeemable
non-voting common stock
(unaudited).......................... -- -- 1,895,024 6,732,122 -- -- --
Deferred compensation related to
issuance of options (unaudited)...... 93,750
Amortization of deferred compensation
(unaudited).......................... .........
Issuance of Class A common stock
(unaudited).......................... -- -- -- -- 3,000,262 30,003 13,302
Comprehensive income (unaudited)
Net income prior to S-Corp.
termination (unaudited)............
Net loss subsequent to S-Corp.
termination (unaudited)............ -- -- -- -- -- -- --
Unrealized loss on securities, net of
tax (unaudited).................... -- -- -- -- -- -- --
Comprehensive income (loss)
(unaudited).......................... -- -- -- -- -- -- --
Retirement of treasury stock
(unaudited).......................... -- -- -- -- -- -- (202,598)
Accreted dividends on Series A
redeemable preferred stock
(unaudited).......................... -- 2,267,394 -- -- -- -- (1,622,167)
--------- ----------- --------- ---------- ---------- -------- -----------
Balance at September 30, 2000
(unaudited).......................... 3,748,548 $27,868,847 2,737,229 $6,989,054 12,561,986 $125,620 $ --
========= =========== ========= ========== ========== ======== ===========
STOCKHOLDERS' EQUITY (DEFICIT)
----------------------------------------------------------------
ACCUMULATED TOTAL
OTHER TREASURY STOCK STOCKHOLDERS'
ACCUMULATED COMPREHENSIVE DEFERRED ------------------- EQUITY
DEFICIT INCOME (LOSS) COMPENSATION SHARES AMOUNT (DEFICIT)
----------- ------------- ------------ ------- --------- -------------
Balance at December 31, 1996.......... $(4,426,812) -- -- 73,268 $(202,598) $ 3,132,878
Distributions to stockholders........ (12,012) -- -- -- -- (12,012)
Net loss............................. (2,043,426) -- -- -- -- (2,043,426)
----------- ------------ -------- ------- --------- ------------
Balance at December 31, 1997.......... (6,482,250) -- -- 73,268 (202,598) 1,077,440
Distributions to stockholders........ (377,735) -- -- -- -- (377,735)
Net income........................... 2,109,441 -- -- -- -- 2,109,441
----------- ------------ -------- ------- --------- ------------
Balance at December 31, 1998.......... (4,750,544) -- -- 73,268 (202,598) 2,809,146
Distributions to stockholders........ (539,804) -- -- -- -- (539,804)
Comprehensive income
Net loss........................... (2,043,978) -- -- -- -- (2,043,978)
Unrealized gain on securities, net
of tax........................... -- $ 33,298,218 -- -- -- 33,298,218
------------
Comprehensive income................. -- -- -- -- -- 31,254,240
----------- ------------ -------- ------- --------- ------------
Balance at December 31, 1999.......... (7,334,326) 2002.
33,298,218 EDGAR Online, Inc.
-- 73,268 (202,598) 33,523,582
Distributions to stockholders
(unaudited).......................... (338,991) -- -- -- -- (338,991)
Distributions of securities, available
for sale (unaudited)................. (7,427,556) -- -- -- -- (7,427,556)
See accompanying notes.
F-6
102
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
--------------------------------------- -------------------------
1997 1998 1999 1999 2000
----------- ----------- ----------- ----------- -----------
(UNAUDITED)
Cash flows from operating activities:
Net income (loss)........................................... $(2,043,426) $ 2,109,441 $(2,043,978) $ 1,875,506 $(3,001,671)
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation............................................... 470,156 630,589 900,939 393,795 379,794
Amortization............................................... 1,010,224 696,833 660,448 466,142 1,339,512
Bad debt expense........................................... -- 482,670 392,479 110,108 182,902
Provision for uncollectable advertising fees............... -- 180,286 220,409 -- 150,000
Impairment loss............................................ -- 2,000 -- -- --
Gain (loss) on sale of assets.............................. 33,859 (151,000) -- -- --
Gain on sale/distribution of securities.................... (522,501) (583,476) (1,048,773) -- (7,427,556)
Gain on sale of software division.......................... -- (4,873,810) -- -- --
Compensation expense on PSU conversion..................... -- -- -- -- 6,614,330
Deferred income taxes...................................... -- 30,000 (122,000) -- (6,664,469)
Deferred rent.............................................. -- -- 140,960 105,819 264,906
Minority interests' share of income in subsidiaries........ 472,702 505,102 585,080 512,736 50,129
Amortization of deferred compensation...................... -- -- -- -- 5,859
Equity interest in operations of affiliates................ -- -- -- -- 412,845
Net change in operating assets and liabilities, including
discontinued operations in 1997 and 1998:
Accounts receivable...................................... (339,428) 103,987 (3,225,707) (2,414,978) (763,239)
Accounts receivable -- related parties................... (244,398) (449,233) (332,630) 522,534 (7,742)
Other receivables........................................ (143,453) 71,467 45,557 17,184 24,686
Other receivables -- related parties..................... (147,833) 33,303 (145,067) 5,738 51,980
Other receivables -- student loans....................... (255,674) (1,751,541) 2,247,838 2,247,838 --
Inventories.............................................. 158,701 93,652 (197,037) (85,410) 318,739
Prepaid expenses......................................... 155,227 765,950 (123,972) (27,070) (569,005)
Other assets............................................. (526,526) 222,129 108,898 (859,863) (1,661,978)
Accounts payable......................................... (318,901) (21,655) 533,726 (665,312) (888,800)
Accrued expenses and taxes payable....................... 1,609,238 (1,038,768) 435,476 174,790 2,881,394
Accrued expenses -- PSU's................................ 162,690 185,360 1,961,950 412,693 (2,310,000)
Accrued expenses -- related parties...................... -- -- 223,750 104,000 (22,010)
Deferred income.......................................... (9,670) (875,178) 983,267 1,786,735 3,037,943
Book advances............................................ 152,500 (335,551) 1,879,211 (110,715) (1,490,966)
Book advances -- related parties......................... (302,250) (314,516) 41,766 247,277 (182,500)
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in) operating activities......... (628,763) (4,281,959) 4,122,590 4,819,547 (9,274,917)
----------- ----------- ----------- ----------- -----------
Cash flows from investing activities:
Purchase of furniture, fixtures, equipment and software
development.............................................. (851,945) (1,052,200) (2,290,618) (1,909,787) (4,354,332)
Investments in affiliates.................................. -- -- -- (13,398) (1,000,000)
Purchase of franchises..................................... -- -- -- -- (320,000)
Proceeds from sale of assets............................... 8,000 151,000 -- -- --
Proceeds from sale of securities........................... 505,000 625,000 1,049,965 -- --
Proceeds from sale of software division.................... -- 5,100,000 -- -- --
Proceeds from repayment of note receivable................. 75,000 225,000 -- -- --
Distribution from (purchase of) nonmarketable securities... (219,439) 215,245 -- -- --
Proceeds (repayments) of stockholder loan.................. (21,070) 303,494 82,443 338,000 (79,346)
Investment in other assets................................. (711,128) (754,583) (233,411) (90,140) (1,915,114)
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in) investing activities......... (1,215,582) 4,812,956 (1,391,621) (1,675,325) (7,668,792)
----------- ----------- ----------- ----------- -----------
Cash flows from financing activities:
Proceeds (repayment) of line of credit..................... 500,000 (1,425,000) 700,000 -- (700,000)
Proceeds (repayment) term loan, net........................ (55,414) 80,133 (35,258) (27,447) (27,447)
Proceeds (repayment) from student loan credit facilities... 496,297 1,751,541 (2,247,838) (2,247,838) --
Proceeds from capital leases, net of repayments............ 70,878 279,411 531,036 309,423 267,042
Distributions to stockholders.............................. (12,012) (377,735) (539,804) (539,804) (338,991)
Proceeds from investment in Series A redeemable convertible
preferred stock, net of offering costs................... -- -- -- -- 25,409,488
Proceeds from sale of Class B redeemable non-voting common
stock.................................................... -- -- -- -- 161,097
Issuance of Princeton Review Publishing, LLC units......... -- -- -- -- 1,100,932
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in) financing activities......... 999,749 308,350 (1,591,864) (2,505,666) 25,872,121
----------- ----------- ----------- ----------- -----------
Net increase in cash and cash equivalents................... (844,596) 839,347 1,139,105 638,556 8,928,412
Cash and cash equivalents, beginning of period.............. 1,524,225 679,629 1,518,976 1,518,976 2,658,081
----------- ----------- ----------- ----------- -----------
Cash and cash equivalents, end of period.................... $ 679,629 $ 1,518,976 $ 2,658,081 $ 2,157,532 $11,586,493
=========== =========== =========== =========== ===========
Supplemental disclosures of cash flow information
Cash paid during the year for:
Interest (includes $5,581 and $32,077 of interest paid
related to discontinued operations in 1997 and 1998,
respectively)............................................ $ 148,159 $ 179,821 $ 46,491 $ 44,115 $ 110,033
=========== =========== =========== =========== ===========
State and local income taxes............................... $ 82,678 $ 147,013 $ 123,908 $ 110,106 $ 124,079
=========== =========== =========== =========== ===========
2002. EDGAR Online, Inc.
See accompanying notes.
F-7
103
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
Business
The Princeton Review, Inc. and its wholly-owned subsidiaries, Princeton Review Management, LLC, Princeton Review Publishing,
LLC (including its wholly-owned subsidiary, Apply Technology, LLC), Princeton Review Products, LLC and Princeton Review
Operations, LLC (together, the "Company") are engaged in the business of providing courses that prepare students for college,
graduate school and other admissions tests. The Company, through Princeton Review Operations, LLC, provides these courses in
various locations throughout the United States and over the Internet. As of September 30, 2000, there were also 41 independent
franchises throughout the United States and overseas through which these courses are conducted. The Company also sells support
materials and equipment to its franchises, authors content for various books and software products published by third parties, and
operates two Web sites providing education-related content.
Effective March 31, 2000, the Company terminated its S corporation status in preparation for a restructuring (see Note 7).
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of The Princeton Review, Inc. and its wholly-owned
subsidiaries. Prior to April 1, 2000, these subsidiaries were majority-owned. All significant intercompany transactions and balances are
eliminated in consolidation.
Basis of Presentation
The unaudited interim financial statements reflect all adjustments (consisting of normal recurring adjustments) which are, in the
opinion of management, necessary for a fair statement of the results for the interim periods presented.
Cash and Cash Equivalents
As of December 31, 1998 and 1999, and September 30, 2000, (unaudited) cash and cash equivalents consist of investments in
securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, which have average maturities of 90 days or
less at the date of purchase. Approximately 63%, 47% and 91% of the Company's cash and cash equivalents at December 31, 1998,
1999, and September 30, 2000 (unaudited), respectively, were on deposit at one financial institution.
Inventories
Inventories consist of program support equipment, course materials and supplies. All inventories are valued at the lower of cost
(first-in, first-out basis) or market.
Furniture, Fixtures and Equipment
Furniture, fixtures and equipment are stated at cost less accumulated depreciation and amortization. Depreciation is computed using
straight-line and accelerated methods over the estimated useful lives of the assets principally ranging from three to seven years.
Leasehold improvements are amortized using the straight-line method over the lesser of the lease term or its estimated economic useful
life.
F-8
104
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
2002. EDGAR Online, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Software Development
Effective January 1, 1999, the Company adopted the provisions of the American Institute of Certified Public Accountants Statement of
Position ("SOP") 98-1, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. The rule specifies the
different stages of software development and the related accounting guidance that accompanies each stage.
Effective July 1, 2000, the Company adopted Emerging Issues Task Force ("EITF") 00-2, Accounting for Website Development
Costs. The adoption of this EITF has not had a material effect on the Company's financial condition or results of operations.
During the year ended December 31, 1999 and the nine months ended September 30, 1999 and 2000 (unaudited), the Company
expensed approximately $650,000, $163,000 and $797,000, respectively, of product development costs under SOP 98-1 that were
incurred in the preliminary project stage. During the year ended December 31, 1999 and the nine months ended September 30, 2000
(unaudited), the Company capitalized approximately $1,036,000 and $2,598,000, respectively, in application development costs under
SOP 98-1. These capitalized costs are amortized using the straight-line method over the estimated useful life of the asset, ranging from
12 to 24 months.
Franchise Costs
The cost of franchise rights purchased by the Company from third parties is amortized using the straight-line method over the
remaining useful life of the franchise agreement.
Territorial Marketing Rights
Territorial marketing rights represent rights contributed by our independent franchisees to Princeton Review Publishing, LLC in 1995
to allow the marketing of the Company's products on a contractually agreed-upon basis within the franchisee territories. Without these
rights, the Company would be prohibited from selling its products in these territories due to the exclusivity granted to the franchisees
within their territories. In consideration for these rights, these franchisees were given membership units in Princeton Review
Publishing LLC representing approximately 13% of the total units. Accordingly, the Company recorded these assets at $2,208,000,
which represented approximately 13% of the value of Princeton Review Publishing LLC at the time of the transaction. These rights are
being amortized on a straight-line basis over 20 years.
Publishing Rights
Publishing rights consist of amounts paid in 1995 to certain co-authors to buy out their rights to future royalties on certain books. Such
amounts are being amortized on a straight-line basis over 25 years.
Capitalized Course Costs
Capitalized course costs consist of amounts paid to consultants or employees specifically hired for the development or substantial
revision of courses and their related materials. Amortization of these capitalized course costs commences with the realization of course
revenues. The amortization periods range from one to five years.
Impairment of Long-Lived Assets
The Company reviews its long-lived assets for impairment at each balance sheet date. If impairment is indicated, the asset is written
down to its fair value based on the present value of estimated future cash flows. To date, no impairments have occurred.
F-9
105
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Investments in Affiliates
The Company carries its investments in affiliate companies in which it exercises significant influence on the equity method of
accounting. Ownership interests in such investments are approximately 20%.
2002. EDGAR Online, Inc.
Deferred Income
Deferred income primarily represents tuition that has not yet been earned. This tuition is applied to income ratably over the periods in
which it is earned, generally the term of the program. Deferred income also includes customer deposits which are refundable prior to
commencement of the program.
Minority Interests
In accounting for minority interests prior to April 1, 2000, the Company had recognized 100% of the losses in those subsidiaries where
minority interests had been exhausted. In certain subsidiaries which were profitable, the minority interests' share of such profits had
been credited to the minority interests.
On April 1, 2000, as part of a corporate restructuring, all of the minority stockholders contributed their interests in the subsidiaries to
the newly formed holding company for common stock. The minority interest liability on March 31, 2000 was reversed against
additional paid-in capital (see Note 7).
Revenue Recognition
The Company recognizes revenue from the sale of products and services as follows:
Course and Tutoring Income
Tuition and tutoring fees are paid to the Company and recognized over the life of the course.
Book, Software and Publication Income and Expenses
The Company recognizes revenue from both performance-based fees such as marketing fees and royalties and delivery-based fees such
as advances and copy editing fees. Performance-based fees are recognized as books are sold. Delivery based fees are recognized upon
the completion and acceptance of the product by the publisher. Until such time, all costs and revenues related to such delivery-based
fees are deferred. Book advances are recorded as liabilities and deferred book expenses are included in other current assets.
Royalty Service Fees
As consideration of the rights and entitlements granted under franchise agreements, which entitle the franchisees to provide test
preparation services utilizing the Princeton Review Method in their licensed territories, the franchisees are required to pay to the
Company a monthly royalty service fee equal to 8% of the franchise's gross receipts collected during the preceding month.
F-10
106
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Course Materials and Other Products
The Company recognizes revenue from the sale of course materials and other products to the independently-owned franchises based
upon shipment dates.
Initial Franchise Fees
Revenue from the initial sales of franchises is recognized when substantially all significant services to be provided by the Company,
pursuant to the franchise agreement, have been performed and the franchise has commenced operations. These services consist of
approximately two weeks of training the franchisees' teachers to use The Princeton Review Method and the franchisee's staff on how to
operate an office. The initial franchise fee gives the franchisee a license to conduct, operate and market a test preparation business
utilizing The Princeton Review Method in a specific territory for an initial period of typically 10 years, with a right to renew for an
additional 10 years. Renewal fees of $2,500 are recorded at the time of renewal.
Other Income
2002. EDGAR Online, Inc.
Other income consists of miscellaneous fees for other services provided to third parties primarily for authoring questions, college
marketing fees and advertising. These fees are recognized as the products or services are delivered.
The following table summarizes the Company's revenue and cost of revenue for the years ended December 31, 1997, 1998, 1999 and
for the nine months ended September 30, 1999 and 2000 (unaudited):
BOOK, SOFTWARE
COURSE AND COURSE AND INITIAL
TUTORING ROYALTY MATERIALS AND PUBLICATION FRANCHISE
INCOME SERVICE FEES OTHER PRODUCTS INCOME FEES OTHER INCOME TOTAL
----------- ------------ -------------- -------------- --------- ------------ -----------
YEAR ENDED DECEMBER 31,
1997
Revenue
Instruction and
Guidance............ $21,488,294 $2,775,560 $2,824,138 -- $209,500 $ 82,349 $27,379,841
Review.com............ -- -- -- $4,825,249 -- 308,588 5,133,837
Homeroom.com.......... -- -- -- -- -- -- --
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $21,488,294 $2,775,560 $2,824,138 $4,825,249 $209,500 $ 390,937 $32,513,678
=========== ========== ========== ========== ======== ========== ===========
Cost of revenue
Instruction and
Guidance............ $ 6,838,091 -- $3,737,516 -- -- -- $10,575,607
Review.com............ -- -- -- $2,716,686 -- -- 2,716,686
Homeroom.com.......... -- -- -- -- -- -- --
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $ 6,838,091 -- $3,737,516 $2,716,686 -- -- $13,292,293
=========== ========== ========== ========== ======== ========== ===========
YEAR ENDED DECEMBER 31,
1998
Revenue
Instruction and
Guidance............ $22,831,566 $2,814,685 $2,283,153 -- $ 88,500 $ 304,158 $28,322,062
Review.com............ -- -- -- $3,323,816 -- 1,140,353 4,464,169
Homeroom.com.......... -- -- -- 959,388 -- -- 959,388
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $22,831,566 $2,814,685 $2,283,153 $4,283,204 $ 88,500 $1,444,511 $33,745,619
=========== ========== ========== ========== ======== ========== ===========
F-11
107
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2002. EDGAR Online, Inc.
BOOK, SOFTWARE
COURSE AND COURSE AND INITIAL
TUTORING ROYALTY MATERIALS AND PUBLICATION FRANCHISE
INCOME SERVICE FEES OTHER PRODUCTS INCOME FEES OTHER INCOME TOTAL
----------- ------------ -------------- -------------- --------- ------------ -----------
Cost of revenue
Instruction and
Guidance............ $ 6,775,177 -- $2,901,653 -- -- $ 167,418 $ 9,844,248
Review.com............ -- -- -- $1,041,358 -- 630,735 1,672,093
Homeroom.com.......... -- -- -- 383,755 -- -- 383,755
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $ 6,775,177 -- $2,901,653 $1,425,113 -- $ 798,153 $11,900,096
=========== ========== ========== ========== ======== ========== ===========
YEAR ENDED DECEMBER 31,
1999
Revenue
Instruction and
Guidance............ $23,502,632 $3,342,328 $2,419,819 -- $300,063 $ 336,023 $29,900,865
Review.com............ -- -- -- $3,369,287 -- 1,919,808 5,289,095
Homeroom.com.......... -- -- -- 5,112,669 -- -- 5,112,669
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $23,502,632 $3,342,328 $2,419,819 $8,481,956 $300,063 $2,255,831 $40,302,629
=========== ========== ========== ========== ======== ========== ===========
Cost of revenue
Instruction and
Guidance............ $ 7,383,333 -- $2,375,931 -- -- -- $ 9,759,264
Review.com............ -- -- -- $ 912,199 -- $ 557,246 1,469,445
Homeroom.com.......... -- -- -- 1,742,389 -- 199,180 1,941,569
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $ 7,383,333 -- $2,375,931 $2,654,588 -- $ 756,426 $13,170,278
=========== ========== ========== ========== ======== ========== ===========
NINE MONTHS ENDED
SEPTEMBER 30, 1999
(unaudited)
Revenue
Instruction and
Guidance............ $18,826,071 $2,708,716 $1,928,169 -- $ 63 $ 181,602 $23,644,621
Review.com............ -- -- -- $2,550,721 -- 1,342,907 3,893,628
Homeroom.com.......... -- -- -- 3,133,674 -- -- 3,133,674
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $18,826,071 $2,708,716 $1,928,169 $5,684,395 $ 63 $1,524,509 $30,671,923
=========== ========== ========== ========== ======== ========== ===========
Cost of revenue
Instruction and
Guidance............ $ 6,601,474 -- $ 736,913 -- -- -- $ 7,338,387
Review.com............ -- -- -- $ 467,414 -- $ 349,572 816,986
Homeroom.com.......... -- -- -- 732,941 -- 67,986 800,927
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $ 6,601,474 -- $ 736,913 $1,200,355 -- $ 417,558 $ 8,956,300
=========== ========== ========== ========== ======== ========== ===========
NINE MONTHS ENDED
SEPTEMBER 30, 2000
(unaudited)
Revenue
Instruction and
Guidance............ $21,157,532 $3,069,626 $2,422,558 -- $402,069 $ 230,913 $27,282,698
Review.com............ -- -- -- $2,257,753 -- 1,498,640 3,756,393
Homeroom.com.......... -- -- -- 3,114,840 -- -- 3,114,840
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $21,157,532 $3,069,626 $2,422,558 $5,372,593 $402,069 $1,729,553 $34,153,931
=========== ========== ========== ========== ======== ========== ===========
F-12
108
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
BOOK, SOFTWARE
COURSE AND COURSE AND INITIAL
TUTORING ROYALTY MATERIALS AND PUBLICATION FRANCHISE
INCOME SERVICE FEES OTHER PRODUCTS INCOME FEES OTHER INCOME TOTAL
----------- ------------ -------------- -------------- --------- ------------ -----------
Cost of revenue
Instruction and
Guidance............ $ 7,245,656 -- $1,676,665 -- -- -- $ 8,922,321
Review.com............ -- -- -- $ 538,507 -- $ 260,913 799,420
Homeroom.com.......... -- -- -- 586,678 -- 33,658 620,336
----------- ---------- ---------- ---------- -------- ---------- -----------
Total................. $ 7,245,656 -- $1,676,665 $1,125,185 -- $ 294,571 $10,342,077
=========== ========== ========== ========== ======== ========== ===========
2002. EDGAR Online, Inc.
Advertising and Promotion
The majority of costs associated with advertising and promotion are expensed in the year incurred. Costs related to producing mailers
and other pamphlets are expensed when mailed. Due to the seasonal nature of the business, all advertising costs related to mailers and
pamphlets had been expensed by December 31, 1997, 1998, 1999 and September 30, 1999 and 2000 (unaudited), respectively. Total
advertising and promotion expense was approximately $1,400,000, $2,000,000, $2,400,000, $1,385,000 and $4,110,000 for the years
ended December 31, 1997, 1998, 1999, and for the nine months ended September 30, 1999 and 2000 (unaudited), respectively.
Advertising and promotion expense in 1997 and 1998 included approximately $1,025,000 and $420,000, respectively, relating to
discontinued operations.
Research and Development
The Company incurred research and development costs of approximately $1,000,000, $1,200,000 and $878,000 during the years
ended December 31, 1997, 1998 and 1999, respectively, and $519,000 and $346,000 for the nine months ended September 30, 1999
and 2000 (unaudited), respectively. The Company has no significant obligations or contracts to perform research and development for
others.
Use of Estimates
The preparation of the financial statements in conformity with accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the reporting period. Significant accounting estimates used
include estimates for sales allowances, uncollectible accounts receivable and amortization lives assigned to intangible assets. Actual
results could differ from those estimates.
Fair Value of Financial Instruments
For financial statement instruments including cash and cash equivalents, accounts receivable, other receivables and accounts payable,
the carrying amount approximated fair value because of their short maturity. Securities, available for sale, are publicly traded and are
stated at the last reported sales price on the day of the valuation.
Income Taxes
The Company accounts for income taxes based upon the provisions of SFAS No. 109, Accounting for Income Taxes. Under SFAS
109, the liability method is used for accounting for
F-13
109
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
income taxes, and deferred tax assets and liabilities are determined based on differences between financial reporting and tax basis of
assets and liabilities.
Income (Loss) Per Share
Basic and diluted net income (loss) per share information for all periods is presented under the requirements of SFAS No. 128,
Earnings per Share. Basic net income (loss) per share is computed by dividing net income (loss) applicable to common stockholders
by the weighted average number of common shares outstanding during the period. Diluted net income (loss) per share is determined in
the same manner as basic net income (loss) per share except that the number of shares is increased assuming exercise of dilutive stock
options, warrants and convertible securities. The diluted net income (loss) per share amount prior to April 1, 2000 equals basic net
income (loss) per share because the Company had no common stock equivalents. The calculation of diluted net income (loss) per share
excludes potential common shares if the effect is antidilutive.
All share and per share data have been adjusted to reflect the Company's corporate restructuring (see Note 7).
2002. EDGAR Online, Inc.
Prior to 2000, there were no common stock equivalents excluded from the net income (loss) per share calculation. During 2000,
certain shares of Series A preferred stock, warrants and stock options were issued that would be dilutive but were excluded because to
include them would have been antidulutive. The weighted average number of shares so excluded as of September 30, 2000 was
3,078,664 shares of stock issuable upon exercise of stock options and conversion of preferred stock.
Reclassifications
Certain 1997 and 1998 balances have been reclassified to conform with the current presentation.
2. OTHER ASSETS
Other assets (current) consist of the following at:
DECEMBER 31,
-------------------- SEPTEMBER 30,
1998 1999 2000
-------- -------- -------------
(UNAUDITED)
Deferred book costs..................................... $178,820 $ 65,386 $ 392,561
Due from advertising fund (see Note 8)*................. 351,083 168,797 294,503
Deferred IPO costs...................................... -- -- 1,039,133
Deferred taxes.......................................... 110,000 -- --
Other................................................... 132,550 98,963 131,276
-------- -------- ----------
$772,453 $333,146 $1,857,473
======== ======== ==========
* It was the opinion of management that the receivable from the advertising fund was not fully recoverable and, accordingly, this
amount was written down to its net realizable value in 1999. In 1998, this amount was net of an allowance of $1,499,321. An
allowance of $150,000 has been provided as of September 30, 2000 (unaudited).
F-14
110
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Other assets (noncurrent) consist of the following at:
DECEMBER 31,
---------------------- SEPTEMBER 30,
1998 1999 2000
---------- -------- -------------
(UNAUDITED)
Capitalized course costs, net of accumulated
amortization of $731,034 in 1998, $1,083,646 in 1999
and $1,284,140 in 2000 (unaudited) (see Note 1)...... $ 787,181 $434,620 $2,184,269
Investment in Student Advantage, Inc. (see Note 3)..... 38,630 -- --
Security deposits...................................... 179,776 316,120 396,580
Other.................................................. 98,982 172,106 264,715
---------- -------- ----------
$1,104,569 $922,846 $2,845,564
========== ======== ==========
3. INVESTMENT IN STUDENT ADVANTAGE, INC.
Princeton Review Publishing, LLC had a minority interest in Student Advantage, L.L.C., a national college student membership
2002. EDGAR Online, Inc.
organization. The investment was carried at cost of $425,000, adjusted for the Company's proportionate share of its undistributed
earnings or losses. During 1997, the Company sold 1,498 membership units out of its original investment of 2,497 units for $630,000,
of which $505,000 was received in 1997 and the remaining $125,000 was received in 1998. In 1997, the Company recognized a gain
of approximately $523,000 on this transaction.
In October 1998, Princeton Review Publishing, LLC's 981 membership units in Student Advantage, L.L.C., with a cost basis of
approximately $80,000, were converted into 1,450,587 shares of common stock and 134,597 shares of convertible preferred stock,
convertible into 403,791 shares of common stock of the new company, Student Advantage, Inc. In November 1998, the Company,
through the exercise of a put option in the amount of $625,000, reduced its investment in Student Advantage, Inc. The put option was
granted to the Company in conjunction with a recapitalization and reorganization of Student Advantage, Inc. The transaction resulted
in a gain of approximately $583,000, which was recognized in 1998. As of December 31, 1998, the Company's remaining ownership
interest in Student Advantage, Inc. was 1,450,587 shares of common stock and 56,472 shares of preferred stock, convertible into
169,416 shares of common stock. At December 31, 1998, the Company's investment was recorded at cost, which approximated
$38,000.
In June 1999, Student Advantage, Inc. sold its shares of common stock in an initial public offering (Nasdaq symbol "STAD"). Under
certain lockup agreements, the Company was restricted from selling its shares for a period of six months and then only in amounts
using a formula based on average trading volumes. The closing stock price on December 31, 1999 was $22.19 per share. The
Company has treated this investment as available for sale securities and has recorded an unrealized gain of approximately $34,800,000
in equity as a component of other comprehensive income. In December 1999, the Company sold 50,000 shares of common stock for
approximately $1,000,000, reducing its ownership interest in Student Advantage, Inc. to 1,570,003 shares of common stock. The
transaction resulted in a gain of approximately $1,000,000 in 1999.
Effective March 31, 2000, in connection with the restructuring and sale of Series A preferred stock, the Company's board of directors
approved the distribution of 742,876 shares of Student Advantage, Inc. stock to its stockholders and 32,168 shares to its employees.
On March 31, 2000, the Company distributed the stock to the stockholders and realized a gain of approximately $7,428,000. On April
18, 2000, the Company distributed 32,168 shares to the employees and realized a gain of approximately $169,000. At September 30,
2000 (unaudited), the Company held 794,959 shares of Student Advantage, Inc. common stock valued at $7.37 per share.
F-15
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
4. FURNITURE, FIXTURES AND EQUIPMENT
Furniture, fixtures and equipment consist of the following at:
2002. EDGAR Online, Inc.
DECEMBER 31,
------------------------ SEPTEMBER 30,
1998 1999 2000
---------- ---------- -------------
(UNAUDITED)
Computer equipment........................... $1,838,269 $2,037,431 $2,579,915
Furniture, fixtures and equipment............ 685,604 738,367 1,057,290
Computer equipment under capital leases...... 372,169 1,091,026 1,668,035
Automobiles.................................. 20,503 20,503 42,277
Software..................................... 681,540 1,717,369 4,315,840
Leasehold improvements....................... 400,096 684,103 988,946
---------- ---------- ----------
3,998,181 6,288,799 10,652,303
Less accumulated depreciation and
amortization, including $45,594 in 1998,
$337,299 in 1999 and $616,218 in 2000
(unaudited) of accumulated deprecation for
assets under capital leases................ 2,152,084 3,130,951 4,470,227
---------- ---------- ----------
$1,846,097 $3,157,848 $6,182,076
========== ========== ==========
5. INVESTMENT IN AFFILIATES
The Company has an ownership interest of approximately 20% in Student Monitor, LLC. At September 30, 2000, the Company's
investment in this company was approximately $143,000.
In February 1999, the Company invested $5,000 for an ownership interest of approximately 48% in Tutor.com, Inc., a startup
company. Effective December 31, 1999, as a result of additional third party investments in Tutor.com, Inc., the Company's interest was
reduced to approximately 30%. During 2000, after further third party investments and an additional $1,000,000 investment by the
Company, the Company's ownership interest was reduced to approximately 20%. At December 31, 1999 and September 30, 2000
(unaudited), the investment was approximately $0 and $421,000, respectively. The investment agreement includes various marketing
arrangements including the license by the Company to use various trademarks to co-brand the Tutor.com service, the sharing of lists of
prospective and current customers and promotion of each other's Web sites. These marketing arrangements are mutually provided free
of charge.
6. LINE OF CREDIT AND LONG-TERM DEBT
Line of Credit
In August 1999, the Company entered into a $1,500,000 line of credit with a bank to fund working capital requirements. Advances
payable under this agreement are evidenced by promissory notes and are guaranteed by the majority stockholder of the Company.
Advances bear interest at the prime rate plus 0.5% (10% at September 30, 2000). The line expires on June 30, 2001. As of September
30, 2000, there were no outstanding borrowings under the line of credit.
F-16
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Long-term Debt
Long-term debt consists of the following at:
2002. EDGAR Online, Inc.
DECEMBER 31,
-------------------- SEPTEMBER 30,
1998 1999 2000
-------- -------- -------------
(UNAUDITED)
Capital lease obligations....................... $350,289 $881,325 $1,148,367
Term loan....................................... 82,190 46,932 19,485
-------- -------- ----------
432,479 928,257 1,167,852
Less current portion............................ 168,003 390,206 486,039
-------- -------- ----------
$264,476 $538,051 $ 681,813
======== ======== ==========
Capital Lease Obligations
At September 30, 2000 (unaudited), the Company has leased approximately $1,668,000 of computer and phone equipment under
capital leases all of which are included in fixed assets (see Note 4).
The following is a schedule of the future minimum capital lease obligation payments together with the present value of the minimum
lease payments at September 30, 2000 (unaudited):
Year ending September 30, (unaudited)
2001...................................................... $
499,955
2002......................................................
513,914
2003......................................................
205,457
2004......................................................
108,527
2005......................................................
18,088
----------
Total.......................................................
1,345,941
Less amounts representing interest (effective rate ranges
from 9% to 17%)...........................................
197,574
----------
Present value of the minimum lease payments.................
$1,148,367
==========
Current portion of capital lease obligations................ $
466,554
Long-term portion of capital lease obligations..............
681,813
----------
$1,148,367
==========
2002. EDGAR Online, Inc.
Term Loan
In 1998, the Company entered into a promissory note for $120,000 as partial payment for the repurchase of an existing franchise. The
amount is payable in monthly installments of approximately $3,800 including interest at 9% and expires in December 2000.
7. STOCKHOLDERS' EQUITY
Corporate Restructuring
Until March 31, 2000, the Company was an S corporation with four majority owned limited liability company subsidiaries, Princeton
Review Management, LLC, Princeton Review Products, LLC, Princeton Review Publishing, LLC and Princeton Review Operations,
LLC (collectively, the "Subsidiaries"). The stockholders of the S corporation held Class A voting and Class B non-voting
F-17
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
common stock. Effective March 31, 2000, a new holding company, TPR Holdings, Inc., a Delaware corporation, was formed.
On April 1, 2000, the Class A common stock and Class B non-voting common stock of the S corporation were exchanged for a
proportionate number of shares of either Class A common stock or Class B non-voting common stock of TPR Holdings, Inc. All of the
members' interests held by minority interest holders in the Subsidiaries were exchanged for an agreed upon number of shares of either
Class A common stock or Class B non-voting common stock of TPR Holdings, Inc. In this transaction, the shareholders of the S
corporation received 9,703,675 shares of Class A common stock and 700,259 shares of Class B non-voting common stock of TPR
Holdings, Inc. The minority interest holders in the Subsidiaries received 2,858,311 shares of Class A common stock and 1,116,834
shares of Class B non-voting common stock of TPR Holdings, Inc. Concurrently, the Company authorized an additional 2,538,000
shares of common stock to be used for the granting of stock and/or options to employees. The fair value of the Company's common
stock, in the opinion of management, at the time of this restructuring was $7.39 per share.
As a result of the foregoing transactions the Company's status as an S corporation terminated as of March 31, 2000 (see Note 9).
Shortly after the completion of the foregoing transactions, TPR Holdings, Inc. was renamed The Princeton Review, Inc. and the former
S corporation was merged into The Princeton Review, Inc.
Persons who participated in various aspects of these restructuring transactions include a number of the Company's executive officers
and directors and Random House TPR, Inc., a holder of an ownership interest of approximately 15% in the Company as of September
30, 2000.
Holders of the Company's Class B non-voting common stock have the right to require the Company to repurchase their stock under
certain circumstances (see Note 8).
Sale of Series A Preferred Stock
On April 18, 2000, the Company sold 3,713,540 shares of Series A convertible preferred stock for $27,000,000. Prior to the
conversion of their shares into common stock, the holders of the convertible preferred stock are entitled to, among other substantial
rights: (1) voting rights equivalent to the voting rights they would hold as if their holdings were converted to common stock at the then
applicable conversion rate, other than the right to elect directors; (2) the right to designate one member of the Company's board of
directors; (3) distribution and liquidation preferences; (4) the option to convert to common stock at any time on a .961-for-one basis,
subject to anti-dilution adjustments; (5) automatic conversion upon the effective date of a qualified initial public offering on a
.961-for-one basis, subject to anti-dilution adjustments and the special provision described below; (6) anti-dilution protection; (7)
covenants requiring their authorization of enumerated transactions; and (8) a mandatory redemption provision whereby any holder of
convertible preferred stock may give a redemption notice at any time after March 31, 2005 and cause the Company to redeem all or a
portion of their shares within 90 days of receipt of the redemption notice, with the redemption price defined as the original purchase
price multiplied by 1.9, which multiple is to be increased if the Company breaches certain covenants contained in the Investor Rights
Agreement among the Company and the purchasers of the convertible preferred stock. As of September 30, 2000, there were no
breaches of the covenants in the Investor Rights Agreement. Accordingly, the total redemption value for Series A preferred stock after
March 31, 2005 is $51,663,000.
2002. EDGAR Online, Inc.
In addition to the rights described above, in the event that the initial public offering price of the shares offered by the Company in its
initial public offering is less than $12.99 per share, then,
F-18
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
instead of converting on a .961-for-one basis upon the completion of the Company's initial public offering, the holders of Series A
preferred stock will receive upon the completion of the offering, in exchange for their shares of Series A preferred stock:
- first, to reflect their pre-offering ownership percentage, such number of shares of our common stock that could be purchased at the
per share initial public offering price for a dollar amount equal to (a) 15.66% multiplied by (b) our total valuation immediately prior to
this offering, minus $27.0 million; and
- second, $27.0 million in common stock at the initial public offering price.
The holders of convertible preferred stock and the Company are parties to an Investor Rights Agreement which provides them with
certain rights, including but not limited to, demand and incidental registration rights.
In May 2000, the Company sold an additional 35,008 shares of Series A preferred stock for approximately $254,000 to third parties.
The Series A preferred stock is net of offering costs of approximately $1,919,000. These costs are being accreted to the value of the
Series A preferred stock to the redemption date.
8. COMMITMENTS AND CONTINGENCIES
Advertising Fund
All domestic franchisees are required to pay a monthly advertising fee to the Company, for contribution to an advertising fund, equal
to 2% of their franchises' gross receipts, as defined, for the preceding month. In accordance with the terms of the franchise agreements,
the Company is required to use all advertising fees it receives for the development, placement and distribution of regional and national
consumer advertising, designed at its discretion to promote consumer demand for services and products available from the franchises.
The Company is required to keep separate advertising fund accounting records and to maintain the advertising funds collected from the
franchisees in a separate bank account. Accordingly, the account balances of the advertising fund are not included in the
accompanying consolidated financial statements. The related balances of the advertising fund as of December 31, 1998, December 31,
1999 and September 30, 2000 (unaudited) are as follows:
DECEMBER 31,
------------------------ SEPTEMBER 30,
1998 1999 2000
----------- --------- -------------
(UNAUDITED)
Advertising fund cash........................ $ 82,625 $ 12,649 $ 159,018
Advertising fund receivables................. 163,269 154,149 105,314
Advertising fund other assets................ 26,381 18,321
Advertising fund accounts payable* (including
$1,850,404, $168,797, and $444,503 of
liabilities due to the Company at December
31, 1998, 1999 and September 30, 2000
(unaudited), respectively)................. (2,012,991) (175,089) (512,036)
----------- --------- ---------
Advertising fund surplus (deficit)........... $(1,767,097) $ 18,090 $(229,383)
=========== ========= =========
2002. EDGAR Online, Inc.
* Management of the Company has adopted a program to reduce the expenditures of the advertising fund relative to amounts collected
by the advertising fund in order to reduce the amounts owed by the advertising fund to the Company. In 1999, the Company wrote off
F-19
115
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
$1,719,731 of amounts due from the advertising fund as uncollectible. At December 31, 1998 and September 30, 2000 (unaudited),
the Company had an allowance against the receivables of $1,499,321 and $150,000, respectively. The net receivable balances at
December 31, 1998, 1999 and September 30, 2000 (unaudited) were $351,083, $168,797, and $294,503, respectively (see Note 2).
Office and Classroom Leases
The Company has entered into various operating leases for its office and classroom site locations. Minimum rental commitments under
these leases, which are in excess of one year as of December 31, 1999 are approximately as follows:
Year ending December 31,
2000...................................................... $
1,991,000
2001......................................................
1,922,000
2002......................................................
1,824,000
2003......................................................
1,678,000
2004......................................................
1,410,000
Thereafter..................................................
5,365,000
-----------
$14,190,000
===========
During 2000, the Company entered into additional operating leases. Minimum rental commitments under these leases, which are in
excess of one year, are as follows: $370,000 in 2000, $786,000 in 2001, $797,000 in 2002, $808,000 in 2003, $849,000 in 2004 and
$5,009,000 thereafter.
Rent expense for the years ended December 31, 1997, 1998, 1999 and for the nine months ended September 30, 1999 and 2000
(unaudited) was approximately $2,619,000, $2,708,000, $3,095,000, $2,361,000 and $2,786,000, respectively. These amounts include
rent expense for the rental of space on a month-to-month basis, as well as those amounts incurred under operating leases for longer
periods. Certain leases provide for early termination without penalty.
The Company has been released from a portion of its rent obligation on certain premises which it is subleasing through 2004; however,
in the event of default by the sublessee, it would remain liable for the balance of the rent obligation, which, at December 31, 1998,
1999 and September 30, 2000 (unaudited), aggregated approximately $630,000, $557,000 and $463,000, respectively.
Legal Matters
The Company is party to various litigation matters in the ordinary course of its business which, in the opinion of management, will not
result in a material loss to the Company.
2002. EDGAR Online, Inc.
In June 1996, an author filed a lawsuit against the Company. On May 10, 2000, the lawsuit was settled and the Company paid the
author $900,000 cash and issued warrants providing for the purchase of such number of shares of the Company's common stock as is
obtained by dividing $1.2 million by the initial public offering price of the Company's common stock. These warrants are exercisable
for an 18-month period, beginning with the date of the completion of an initial public offering by the Company, at an exercise price
equal to the initial offering price of the Company's stock. At September 30, 2000, the Company recorded a $300,000 expense for the
fair value of the warrants. The fair value of the warrants was determined by estimating the value of a warrant with an 18-month life and
with an exercise price equal to the then fair market value of the underlying common stock using the Black-Scholes pricing model. In
addition, as part of the settlement, the Company's royalty agreement with the author was amended. Under the amended royalty
F-20
116
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
agreement, the publisher pays royalties directly to the author. Should royalties paid under the agreement be less than $200,000 per year
through December 31, 2004, the Company is required to pay the difference. As of September 30, 2000, the Company accrued $30,000
for the remaining royalty due to this author for the year.
Publishing Contracts
The Company has entered into several agreements with its publisher, Random House, Inc., which holds an ownership interest in the
Company of approximately 15% as of September 30, 2000, that provide for book royalties to be paid once acceptance advances have
been earned out. Each agreement requires the completion and acceptance of manuscripts by the publisher for predetermined titles in
order to release the final contractual advances (see Note 11).
The Company has recorded $178,820, $65,386 and $392,561, in current deferred book costs at December 31, 1998, 1999 and
September 30, 2000 (unaudited), respectively (see Note 2), for costs incurred to complete publications prior to acceptance of
manuscripts by its publisher.
Co-authorship Agreements
In connection with its publishing agreements, the Company has entered into various co-authorship agreements for the preparation of
manuscripts. These agreements require payment of nonrecourse advances for services rendered at various established milestones. The
Company's future contractual commitments under the co-authorship agreements for manuscripts not yet delivered as of December 31,
1998, 1999 and September 30, 2000 (unaudited) are $46,875, $57,543 and $68,083, respectively. In addition, the co-authors are
entitled to a percentage of the future royalties earned by the Company, which are first to be offset against such advances. The total
costs incurred under these co-authorship agreements by the Company for advances and royalties was $311,067, $278,075 and
$405,352 for the years ended December 31, 1997, 1998 and 1999, respectively, and $318,682 and $199,021 for the nine months
ended September 30, 1999 and 2000 (unaudited), respectively.
The expense related to co-author payments is accrued monthly. This expense is adjusted based upon actual expenditures paid to the
co-authors. These expenditures are a percentage of the royalties paid to the Company by the publisher. Royalties from the publisher
are recorded as revenue with the co-author expenditures recorded as expense.
Class B Non-voting Common Stock
In accordance with a stockholders' agreement dated April 1, 2000, stockholders of Class B non-voting common stock with a total
ownership interest in the Company of approximately 15% at September 30, 2000, have the right to require the Company to purchase
all or a portion of their stock at the earlier of April 18, 2005 or the redemption by the Series A preferred stockholders of at least
one-half of their shares. The purchase price is calculated in accordance with the agreement. This purchase price per share is initially
$7.39, to be adjusted periodically by unanimous consent of a valuation committee or, if a fair market price cannot be agreed to by all
committee members, then a price as determined by an independent appraiser. As of December 31, 1999 and September 30, 2000
(unaudited), the redemption value of the Class B non-voting common stock was estimated to be approximately $20,221,000 and
$24,279,000, respectively.
Upon the completion of an initial public offering of the Company's common stock, the repurchase right of the Class B stockholders
described above terminates.
2002. EDGAR Online, Inc.
F-21
117
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
McGraw-Hill Agreement
Effective September 1, 1998, Princeton Review Publishing, LLC entered into an agreement with Educational and Professional
Publishing Group, a unit of The McGraw-Hill Companies, Inc. ("McGraw-Hill"). Under this agreement, the Company provides
McGraw-Hill with certain materials, including workbooks, to be used by McGraw-Hill in conjunction with their textbooks. In addition,
the Company prepares and administers a "question pool" of test questions for grades 2-12. For these services, the Company receives
various fees from McGraw-Hill. The Company recognized $959,388, $1,029,795, $1,008,544 and $905,638, for the years ended
December 31, 1998, 1999 and the nine months ended September 30, 1999 and 2000 (unaudited), respectively, in income for services
provided to McGraw-Hill.
9. INCOME TAXES
Prior to April 1, 2000, the Company was an S corporation under the provisions of the Internal Revenue Code ("IRC"), which provides
that in lieu of corporate income taxes, each stockholder is taxed on their proportionate share of the taxable income. The Company's
operating subsidiaries were organized as limited liability companies, therefore, income taxes were the responsibility of the members
and not the limited liability companies. Certain state and local jurisdictions in which the Company operates do not recognize S
corporation or limited liability company status. Therefore, for periods prior to April 1, 2000 provision for certain state and local
income taxes was made, as applicable.
Effective April 1, 2000, in connection with its restructuring, the Company converted to a C corporation and is now subject to federal,
state and local income taxes. In connection with this conversion, the Company recorded a one time non-recurring benefit of
approximately $899,000. Such benefit relates to the deferred tax assets and liabilities associated with the difference between the
financial statements and tax basis of the assets and liabilities of the Company.
The (provision) benefit for income taxes consists of the following:
NINE MONTHS
YEARS ENDED DECEMBER 31, ENDED
------------------------- SEPTEMBER 30,
1998 1999 2000
----------- ---------- -------------
(UNAUDITED)
Current........................................ $(184,815) $(71,068) $ (133,206)
Deferred....................................... (30,000) 122,000 6,665,000
--------- -------- ----------
$(214,815) $ 50,932 $6,531,794
========= ======== ==========
Significant components of the Company's deferred tax assets and liabilities are as follows at:
2002. EDGAR Online, Inc.
DECEMBER 31,
-------------------------- SEPTEMBER 30,
1998 1999 2000
----------- ----------- -------------
(UNAUDITED)
Deferred tax assets:
Net operating loss carryforward.......... $ 382,000 $ 548,000 $ 7,838,000
Advertising fund allowance............... 86,000 -- 62,000
Allowance for doubtful accounts.......... 18,000 18,000 199,000
Stock appreciation rights................ 18,000 87,000 2,000
Capitalized inventory costs.............. 3,000 5,000 40,000
Deferred rent............................ -- 4,000 110,000
F-22
118
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31,
-------------------------- SEPTEMBER 30,
1998 1999 2000
----------- ----------- -------------
(UNAUDITED)
Accumulated amortization................. -- -- 29,000
Accumulated depreciation................. -- -- 141,000
Deferred compensation.................... -- -- 125,000
Other.................................... 3,000 12,000 139,000
----------- ----------- -----------
Total deferred tax assets............. 510,000 674,000 8,685,000
----------- ----------- -----------
Deferred tax liabilities:
Unrealized gains......................... -- (1,498,000) (2,512,000)
Software development costs............... (35,000) (66,000) (1,423,000)
Accumulated amortization................. -- -- --
Other.................................... -- (11,000) --
----------- ----------- -----------
Total deferred tax liabilities........ (35,000) (1,575,000) (3,935,000)
----------- ----------- -----------
Net deferred tax asset (liability).... $ 475,000 $ (901,000) $ 4,750,000
=========== =========== ===========
The net deferred tax asset at December 31, 1998 is classified in the Company's consolidated balance sheet as current and noncurrent
deferred tax assets of $110,000 and $365,000, respectively. The net deferred tax asset(liability) at December 31, 1999 and September
30, 2000 (unaudited) is classified in the Company's consolidated balance sheet as noncurrent deferred tax assets of approximately
$560,000 and $6,847,000 respectively and current deferred tax liabilities of approximately $1,461,000 and $2,097,000 respectively.
The Company has a net operating loss carryforward of approximately $18,842,000 which expires in the year 2020, and other timing
differences which will be available to offset regular taxable income during the carryback and carryforward periods. The Company
believes that the related deferred tax benefit amount will more likely than not be recognized during these periods and, accordingly, no
valuation allowance was deemed necessary.
A reconciliation setting forth the differences between the effective tax rate of the Company for the six months ended September 30,
2000 and the U.S. federal statutory tax rate is as follows:
2002. EDGAR Online, Inc.
Pre-tax net loss.......................................... $3,210,915
34%
Effect of S-Corp. non-tax period (January 1 - March 31,
2000)................................................... 1,448,164 15
Effect of minority interest and other permanent
differences............................................. (42,520)
(1)
Effect of state taxes..................................... 1,015,791 11
Effect of conversion to C corporation..................... 899,444 10
---------- ---
$6,531,794
69%
========== ===
Pro Forma Income Tax Adjustments (unaudited)
The Company existed as an S corporation until March 31, 2000. The pro forma (provision) benefit for income taxes represents the
income tax (provision) benefit that would have been reported had the Company been subject to federal, state and local income taxes as
a C corporation
F-23
119
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
during the year ended December 31, 1999. The pro forma income tax (provision) benefit consists of the following:
YEAR ENDED
DECEMBER 31,
1999
-----------------
Current..................................................... $ --
Deferred.................................................... 803,631
--------
$803,631
========
Pro forma deferred income taxes will reflect the net tax effects of temporary differences between the carrying amounts of assets and
liabilities for pro forma financial reporting and the amounts used for income tax purposes. Significant components of the Company's
pro forma net deferred tax liability as of December 31, 1999 are as follows:
2002. EDGAR Online, Inc.
DECEMBER 31,
1999
------------
Deferred tax assets:
Net operating loss carryforward........................... $ 3,330,000
Allowance for doubtful accounts........................... 720,000
Stock appreciation rights................................. 2,603,000
Capitalized inventory costs............................... 141,000
Deferred rent............................................. 141,000
Other..................................................... 138,000
------------
Total deferred tax assets.............................. 7,073,000
------------
Deferred tax liabilities:
Unrealized gains..........................................
(34,796,000)
Software development costs................................
(1,367,000)
Other.....................................................
(231,000)
------------
Total deferred tax liabilities.........................
(36,394,000)
------------
Net deferred tax liability.............................
$(29,321,000)
============
A reconciliation setting forth the differences between the pro forma effective tax rate of the Company and the U.S. federal statutory tax
rate is as follows:
Pre-tax net loss........................................... $712,269
34%
Effect of minority interest and permanent differences...... (49,513)
(3)
Effect of state taxes...................................... 140,875 7
-------- ---
$803,631
38%
======== ===
10. EMPLOYEE BENEFITS AND CONTRACTS
Fully Insured Partial Funding Medical Plan
The Company currently provides a fully insured partial funding medical plan for its employees. The Company is liable for medical
claims submitted (after the deductible and any co-payment by the employee) up to the amount of $20,000 per employee. Any claims in
excess of this amount are covered by the insurance carrier. As of December 31, 1998 and 1999 and September 30, 2000 (unaudited),
the Company had no significant unfunded claims. As of September 30, 2000 and based
F-24
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2002. EDGAR Online, Inc.
on the number of covered employees at that time, the maximum annual liability for medical claims for 2000 would be $680,000.
Employment Agreements
The Company has entered into amended employment agreements with executives which provide for annual compensation to these
individuals of $2,674,000 in 2000, $2,890,000 in 2001, $2,792,000 in 2002, $2,470,000 in 2003 and $550,000 in 2004. In addition,
these employment agreements provide for bonuses. The maximum annual bonus payments, as defined under these agreements, are
approximately $1,200,000.
Retirement Plan
The Company has a defined contribution plan (the "Plan") under Section
401(k) of the IRC which provides that eligible employees may make contributions subject to IRC limitations. Employees become
eligible to participate in the Plan after one year of continuous full-time employment. Under the provisions of the Plan, contributions
made by the Company are discretionary and are determined annually by the trustees of the Plan. The Company's contributions to the
Plan for the years ended December 31, 1998 and 1999 were $65,927 and $71,982, respectively, and for the nine months ended
September 30, 1999 and 2000 (unaudited) were $54,415 and $76,177, respectively.
Stock Appreciation Rights Plan (number of units and per unit prices have been adjusted to reflect changes to the number of
outstanding shares of the Company's common stock as a result of its corporate restructuring and reverse stock split described in Notes
7 and 15).
Until April 2000, the Company maintained a Stock Appreciation Rights Plan (the "SAR Plan"). There were no issuances of Stock
Appreciation Rights units ("SARs") under the SAR Plan since 1996, as the SAR Plan was augmented with a Phantom Stock Plan in
June 1997 (see the Phantom Stock Plan note below). As of December 31, 1997, 1998 and 1999, there were 182,999, 161,209 and
141,625 SARs vested, respectively. Vesting rights of awarded SARs were at the discretion of the Company's management at the time
of the award. The vesting periods varied from immediate to three years based on the circumstances of each award. The number of
vested SARs decreased from 1997 to 1999 due to payouts to certain individuals during this period. The Company determined the fair
value assigned to the SARs to be $2.49 per unit at December 31, 1997, $2.83 per unit at December 31, 1998 and $7.07 per unit as of
December 31, 1999. The annual increase in fair value, as determined by the valuation committee under the SAR Plan, is based upon
various factors including transactions and potential transactions with third parties. The per unit values were derived by dividing the
total value of the Company as determined by the valuation committee by 1,132,460 underlying units under the SAR Plan.
The Company recorded compensation expense of $64,320, $65,131 and $609,068 for the years ended December 31, 1997, 1998 and
1999 respectively, based on the appreciation of the fair value and the change in the number of vested SARs.
Phantom Stock Plan (number of units and per unit prices have been adjusted to reflect changes to the number of outstanding shares of
the Company's common stock as a result of its corporate restructuring and reverse stock split described in Notes 7 and 15).
Effective June 1997, the Company augmented its SAR Plan with a Phantom Stock Plan (the "PSU Plan"). Under this plan, Phantom
Stock Units ("PSUs") could be purchased by eligible employees or awarded by management. Employee purchases of PSUs were made
through bi-weekly
F-25
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
payroll deductions based on annual elections made in December of the prior year. Awarded PSUs were at the discretion of
management. The total number of PSUs issued under the PSU Plan at December 31, 1997 was 103,347 (at an average price of $2.60
per unit), of which 62,977 were vested. In 1998, the Company awarded an additional 5,770 PSUs at an average price of $2.60 per unit.
In addition, during 1998, employees purchased 36,158 PSUs at either $2.96 or $2.60, depending on the date of purchase. As of
December 31, 1998, total issuances under the PSU Plan were 145,275, of which 117,781 were vested. In 1999, the Company awarded
1,513,460 PSUs at a price of $2.96 per unit. In addition, during 1999, employees purchased 27,376 PSUs at either $2.96 or $5.32,
depending on the date of purchase. A total of 11,353 PSUs were forfeited or paid out at December 31, 1999 (3,841 forfeited and 7,512
paid out). As of December 31, 1999, a total of 1,674,758 PSUs had been issued under the PSU Plan, of which 312,682 were vested.
Vesting rights of awarded PSUs were at the discretion of the Company's management at the time of the award. PSUs that were
2002. EDGAR Online, Inc.
purchased by employees were fully vested when purchased. The Company determined the fair value assigned to the PSUs to be $2.96
per unit at December 31, 1998 and $7.39 per unit at December 31, 1999. The annual increase in fair value, as determined by the
valuation committee under the PSU Plan, is based upon various factors including transactions and potential transactions with third
parties. The per unit values for PSUs were derived by dividing the total value of the Company, as determined by the valuation
committee, by 846,000 underlying units under the PSU Plan.
The Company recorded compensation expense of $162,690, $18,443 and $1,879,292 for the years ended December 31, 1997, 1998
and 1999, respectively, based on the actual issue prices of the vested PSUs, the annual appreciation of the fair value and the change in
the number of vested PSUs. The vesting periods for awarded PSUs are based on the circumstances of each award. Some were awarded
with vesting periods based on the passage of time and some were awarded with vesting based on performance.
Termination of SAR and PSU Plans
In April 2000, the Company's SAR and PSU Plans were terminated and replaced by a new stock incentive plan adopted by the
Company. Under the Company's 2000 Stock Incentive Plan, 2,538,000 shares of Class B non-voting common stock are reserved for
future issuance. As a result of the conversion of the SAR and PSU Plans, holders of vested PSUs received stock in the Company
and/or cash, while holders of SARs and unvested PSUs received stock options to purchase common stock under the new stock
incentive plan. Participants in the PSU and SAR Plans also received, on April 18, 2000, a total of 32,168 shares of common stock of
Student Advantage, Inc. with a total public market value of approximately $168,000 on the date of distribution.
At the time of the Company's restructuring (see Note 7), the valuation committee of the PSU Plan determined the per share price of the
Company's common stock to be $7.39 per share. This determination was based on a number of factors, including the $7.27 per share
(adjusted to $8.59 per share for a subsequent .846-for-one reverse stock split of the Company's common stock) price paid by the Series
A preferred shareholders that were then investing in the Company. Applying a discount of approximately 14% to the preferred share
price, the per share value for common stock was estimated to be $7.39 per share. This per share value of $7.39 was used to value the
PSUs and SARs, the exercise price of newly issued options and the stock used to replace the vested PSUs.
In connection with the termination of the PSU Plan in April 2000, the Company issued 890,767 shares of Class B non-voting common
stock with a value of $6,580,519 to the holders of PSUs in exchange for all vested and unvested PSUs and paid related payroll
withholding taxes, for a total compensation expense of approximately $11,962,000. The Company recorded this expense in April
2000, while simultaneously reversing the prior liability for vested PSUs of approximately $3,498,000.
F-26
122
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In addition, certain employees purchased a total of 26,437 additional shares of the Company's Class B common stock, at $7.39 per
share, for a total of 917,204 shares issued during the conversion. In addition to the shares of Class B non-voting common stock,
1,182,507 stock options were awarded as a result of the termination of the PSU Plan. These options were unvested at the time of grant,
have a $7.39 exercise price, which was the estimated fair value at the time of grant, and vest quarterly over periods ranging from 3 to 4
years.
The outstanding SARs, which were all fully vested, were converted into 139,857 stock options on a one for one basis with exercise
prices between $1.73 and $2.29, which equal the initial SAR value at the time of the award adjusted for the increased number of
underlying shares of common stock of the Company. Since these exercise prices are below the estimated fair value of $7.39 per share
at the time of grant, the compensation expense recorded in prior periods to record the expense up to the $7.39 per share fair value was
not reversed at the time of the conversion from SARs to stock options.
F-27
123
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following is a summary of the Company's SAR and PSU activity and related information for the years ended December 31, 1997,
1998 and 1999 and the nine months ended September 30, 2000. Where noted the number of shares and per share prices have been
adjusted to reflect the Company's April 1, 2000 restructuring and the reverse stock split (see Notes 7 and 15).
2002. EDGAR Online, Inc.
SAR'S
---------------------- PSU'S
AVG. VALUE ------------------------------
ADJUSTED AT TIME OF VALUE AT TIME OF
# OF GRANT ADJUSTED GRANT/PURCHASE
SAR'S (ADJUSTED) # OF PSU'S (ADJUSTED)
-------- ---------- ---------- ----------------
YEAR ENDED DECEMBER 31, 1997
Outstanding at beginning of year............ 290,074 $1.88 --
Granted................................... -- 103,347 $2.60
Exercised................................. 15,930 $1.88 --
Cancelled................................. -- --
------- ---------
Outstanding at end of year.................. 274,144 103,347
------- ---------
YEAR ENDED DECEMBER 31, 1998
Outstanding at beginning of year............ 274,144 103,347
Granted................................... -- 5,770 $2.60
Purchased................................. -- 20,659 $2.60
Purchased................................. -- 15,499 $2.96
Exercised................................. 99,589 $1.88 --
Cancelled................................. -- --
------- ---------
Outstanding at end of year.................. 174,555 145,275
------- ---------
YEAR ENDED DECEMBER 31, 1999
Outstanding at beginning of year............ 174,555 145,275
------- ---------
Granted..................................... -- 1,513,460 $2.96
Purchased................................... -- 14,754 $2.96
Purchased................................... -- 12,622 $5.32
Exercised................................... 32,930 $1.88 7,512 $5.32
Cancelled................................... -- 3,841 $5.32
------- ---------
Outstanding at end of year.................. 141,625 1,674,758
NINE MONTHS ENDED SEPTEMBER 30, 2000
Outstanding at beginning of period.......... 141,625 1,674,758
Granted................................... -- 27,664 $5.32
Purchased................................. -- 31,971 $5.32
Exercised................................. 1,768 $1.88 --
Cancelled................................. 139,857 $1.88 1,734,393 $7.39
------- ---------
Outstanding at end of period................ -- --
======= =========
STOCK INCENTIVE PLAN
On April 1, 2000, the Company adopted its 2000 Stock Incentive Plan (the "Plan") providing for the authorization and issuance of up
to 2,538,000 shares of common stock, as adjusted. In June 2000, an additional 211,500 shares were authorized. The Plan provides for
the granting of incentive stock options, non-qualified stock options, restricted stock and deferred stock to eligible
F-28
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
participants. Options granted under the Plan are for periods not to exceed ten years. Other than for options to purchase 139,857 shares
granted to certain employees which were vested immediately, options outstanding under the Plan generally vest quarterly over four
years.
A summary of the activity of the Plan is as follows:
2002. EDGAR Online, Inc.
WEIGHTED-AVERAGE
WEIGHTED-AVERAGE
OPTIONS EXERCISE PRICE FAIR VALUE
--------- ----------------
----------------
Outstanding at December 31,
1999......................... -- $ -- $ --
Granted below market........... 139,857 1.88 5.96
Granted at market.............. 1,363,045 7.40 1.78
Forfeited...................... (57,060) 7.15 1.96
--------- -----
Outstanding at September 30,
2000......................... 1,445,842 $6.88 2.18
========= =====
Stock options outstanding at September 30, 2000 are summarized as follows:
WEIGHTED-AVERAGE
EXERCISE OPTIONS OPTIONS REMAINING
WEIGHTED-AVERAGE
PRICE OUTSTANDING EXERCISABLE CONTRACTUAL LIFE EXERCISE PRICE
-------------- ----------- ----------- ----------------
----------------
$1.73 - 2.29 137,290 137,290 9.5 $1.88
7.39 1,296,538 131,912 9.5 7.39
8.87 12,014 -- 9.9 8.87
--------- -------
1,445,842 269,202 9.5
========= =======
During 2000, the Company granted 139,857 stock options to employees at exercise prices ranging from $1.73-$2.29 per share.
Compensation expense, in accordance with the provisions of APB 25, of approximately $739,000 was recorded by the Company for
the nine months ended September 30, 2000 (unaudited).
Pro forma information regarding net loss is required by Statement of Financial Accounting Standards No. 123, "Accounting for Stock
Based Compensation" ("SFAS 123") and has been determined as if the Company had accounted for its employee stock options under
the fair-value method of that statement. The fair value for these options was estimated at the date of grant using the minimum-value
method, which utilizes a near-zero volatility factor. The remaining assumptions, which are a weighted average, under this method are
as follows:
Expected life (years)....................................... 5
Risk-free interest rate.....................................
5.5%
Dividend yield.............................................. 0
This option-valuation method requires input of highly subjective assumptions. Because the Company's employee stock options have
characteristics significantly different from those of traded options, and because change in the subjective input assumptions can
materially affect the fair value estimate, in management's opinion, the existing method does not necessarily provide a reliable single
measure of the fair value of its employee stock options. The effects of applying SFAS 123 in this pro forma disclosure are not
indicative of future amounts and additional awards in future years are anticipated.
2002. EDGAR Online, Inc.
For purposes of pro forma disclosure, the estimated fair value of the equity awards is amortized to expense over the options' vesting
period.
F-29
125
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's pro forma information is as follows for the nine months ended September 30, 2000 (unaudited):
Pro forma net loss......................................
$(3,319,485)
11. RELATED PARTIES
Publisher
Random House, Inc., a holder of an ownership interest of approximately 15% in the Company at September 30, 2000, is also the
publisher and distributor of certain of the Company's products. The contracts signed with Random House, Inc. typically contain an
advance upon signing with the balance due upon delivery of the completed manuscript. The Company has various publishing
agreements with Random House, Inc. dating from 1997 which are not fully completed. During 1998 and 1999, the Company signed
contracts with Random House, Inc. for 17 and 50 new books, respectively. The total advances received at the time of the contracts for
these books were $370,000 and $562,500 for the years ended December 31, 1998 and 1999, respectively, with the balances of
$285,000 and $562,500 due upon delivery of the completed manuscripts at December 31, 1998 and 1999. There were no new
contracts signed during the nine months ended September 30, 2000.
For the years ended December 31, 1997, 1998 and 1999 and for the nine months ended September 30, 1999 and 2000 (unaudited) the
Company earned $4,003,248, $2,917,467, $2,717,416, $1,689,693 and $1,779,570, respectively, from book and publication income
from Random House, Inc. Total receivables at December 31, 1998, 1999 and September 30, 2000 (unaudited) include $1,074,602,
$1,552,080 and $1,328,138, respectively, due from Random House, Inc. for royalties, book advances, copy editing and marketing fees.
In addition, Random House, Inc. has paid advances of $716,766, $675,000, and $492,500, respectively, to the Company for books that
have not yet been completed as of December 31, 1998, 1999 and at September 30, 2000, which are deferred as book advances. At
December 31, 1999 the Company had a liability to Random House, Inc. of $223,750 for advances previously received on uncompleted
books that were cancelled in 1999. This liability was $149,125 at September 30, 2000 (unaudited). The Company also had an
additional liability of $52,615 at September 30, 2000 (unaudited).
Franchisees
As of May 31, 1995, the Company sold approximately 18% of Princeton Review Publishing, LLC to certain franchisees (which was
reduced to approximately 14% pursuant to subsequent transactions and eliminated entirely on April 1, 2000 (see Note 7)).
For the years ended December 31, 1997, 1998 and 1999 and for the nine months ended September 30, 1999 and 2000 (unaudited),
respectively, the Company earned revenues from these franchisees for management services through royalties of approximately
$2,462,641, $2,585,834, $2,460,111, $2,432,957 and $2,770,673, respectively, and earned revenues of $2,253,926, $2,073,274,
$2,214,936, $1,848,909 and $2,359,688, respectively, through the sale of course materials. Included in accounts receivable at
December 31, 1998, 1999 and September 30, 2000 (unaudited) was $796,253, $835,665 and $1,015,369, respectively, due from these
franchisees.
In conjunction with the Company's restructuring (see Note 7), certain franchisees exercised their preemptive rights to buy more
membership units in Princeton Review Publishing, LLC. These franchisees purchased an additional 280.25 units for $1,100,932.
F-30
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
2002. EDGAR Online, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
12. DISCONTINUED OPERATIONS
Software Division
On June 23, 1998, the Company sold its software division along with a 20-year exclusive license for the use of the Company's brand
and test preparation content in disk-based educational and reference software products for $5,100,000 in cash and future royalties. The
sale has been accounted for as a discontinued operation and resulted in a gain of approximately $4,900,000 which was recognized in
1998. As a result of the sale, net capitalized software costs of approximately $230,000 were written off in 1998.
Student Loans Division
Under a Trust Agreement dated April 30, 1997, Fleet National Bank, as trustee for Apply Technology, LLC ("Borrower"), entered into
an agreement whereby Borrower was granted an option from the Student Loan Marketing Association ("Lender") to request advances
(as defined in the agreement) in an aggregate amount of up to $200,000,000. These advances were used by Borrower to finance loans
made under Parts B and F of Title IV of the Higher Education Act of 1965, as amended from time to time, or any successor federal
act, and all regulations and guidelines promulgated thereunder from time to time. During 1998, the Company decided to exit the
student loan business and, in 1999, sold its student loan portfolio. This transaction was accounted for as a discontinued operation. As
of December 31, 1998, total loan obligations outstanding to the Lender were $2,247,838 and were secured by student loan receivables
of an equal amount. These amounts were netted for balance sheet purposes. No material costs were incurred and no material gains or
losses were recognized as a result of exiting this business that required additional accrual at December 31, 1998 and there were no
remaining balances associated with this division at December 31, 1999.
13. MAJOR CUSTOMERS
One customer accounted for approximately 22%, 16% and 13% of gross accounts receivable as of December 31, 1998, 1999 and
September 30, 2000 (unaudited), respectively. This customer, whose revenues are reported in the Review.com division, accounted for
approximately 12% of the revenue of the Company for the year ended 1997. In addition, a second customer, whose revenues are
reported in the Homeroom.com division, accounted for approximately 15%, 40% and 26% of gross accounts receivable at December
31, 1998, and 1999, and September 30, 2000 (unaudited), respectively and approximately 12% of the Company's revenue for the year
ended December 31, 1999.
14. SEGMENT REPORTING
The operating segments reported below are the segments of the Company for which separate financial information is available and for
which operating income is evaluated regularly by executive management in deciding how to allocate resources and in assessing
performance. The accounting policies of the business segments are the same as those described in the summary of significant
accounting policies (see Note 1).
The following segment results include the allocation of certain information technology costs, accounting services, executive
management costs, office facilities expenses, human resources expenses and other shared services which are allocated based on
consumption. Corporate consists of unallocated administrative support functions. The Company operates its business through three
divisions. The majority of the Company's revenue is earned by the Instruction and Guidance
F-31
127
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
division, which sells a range of services including test preparation, tutoring and academic counseling. Instruction and Guidance derives
its revenue from company operated locations and from royalties from and product sales to independently-owned franchises.
Review.com earns revenue from developing content for books, software and other publications for third-party publishers, sells
advertising and sponsorships and earns marketing fees from higher education institutions. Homeroom.com earns fees from its content
development work and recently launched an Internet-based subscription service for K-12 schools and parents.
2002. EDGAR Online, Inc.
FOR THE NINE MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED SEPTEMBER 30,
--------------------------------------- --------------------------
BUSINESS SEGMENTS 1997 1998 1999 1999 2000
----------------- ----------- ----------- ----------- ----------- ------------
(UNAUDITED)
Revenue
Instruction and Guidance..... $27,379,841 $28,322,062 $29,900,865 $23,644,621 $ 27,282,698
Review.com................... 5,133,837 4,464,169 5,289,095 3,893,628 3,756,393
Homeroom.com................. -- 959,388 5,112,669 3,133,674 3,114,840
----------- ----------- ----------- ----------- ------------
Total revenue............. $32,513,678 $33,745,619 $40,302,629 $30,671,923 $ 34,153,931
=========== =========== =========== =========== ============
Cost of revenue
Instruction and Guidance..... $10,575,607 $ 9,844,248 $ 9,759,264 $ 7,338,387 $ 8,922,321
Review.com................... 2,716,686 1,672,093 1,469,445 816,986 799,420
Homeroom.com................. -- 383,755 1,941,569 800,927 620,336
----------- ----------- ----------- ----------- ------------
Total cost of revenue..... $13,292,293 $11,900,096 $13,170,278 $ 8,956,300 $ 10,342,077
=========== =========== =========== =========== ============
Selling, general and
administrative expenses
Instruction and Guidance..... $12,344,711 $14,617,200 $15,549,146 $11,316,170 $ 18,545,948
Review.com................... 4,149,042 5,270,285 5,816,566 4,067,187 7,952,299
Homeroom.com................. -- 163,277 4,454,429 2,504,023 6,838,317
Other corporate.............. 453,903 909,965 1,433,598 -- 5,946,079
Depreciation and
amortization*............. 970,894 1,069,483 1,561,387 859,937 1,144,958
----------- ----------- ----------- ----------- ------------
Total selling, general and
administrative
expenses................ 17,918,550 22,030,210 28,815,126 18,747,317 40,427,601
Instruction and Guidance --
research and
development............... 1,012,653 1,173,730 878,165 518,616 420,546
----------- ----------- ----------- ----------- ------------
Total operating
expenses................ $18,931,203 $23,203,940 $29,693,291 $19,265,933 $ 40,848,147
=========== =========== =========== =========== ============
Operating income (loss) from
continuing operations........ $ 290,182 $(1,358,417) $(2,560,940) $ 2,449,690 $(17,036,293)
=========== =========== =========== =========== ============
DECEMBER 31,
----------------------------------------- SEPTEMBER 30,
1997 1998 1999 2000
----------- ----------- ----------- -------------
Segment Assets
Instruction and Guidance........... $ 5,026,658 $ 4,001,447 $ 4,476,311 $ 7,685,156
Review.com......................... 5,708,241 5,599,444 41,163,451 14,757,284
Homeroom.com....................... -- 626,438 3,808,307 4,659,452
F-32
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THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2002. EDGAR Online, Inc.
DECEMBER 31,
----------------------------------------- SEPTEMBER 30,
1997 1998 1999 2000
----------- ----------- ----------- -------------
Other Corporate.................... 2,495,468 3,231,385 4,249,488 20,641,107
----------- ----------- ----------- -----------
13,230,367 13,458,714 53,697,557 47,742,999
Discontinued Operations............ 1,650,105 2,247,838 -- --
----------- ----------- ----------- -----------
Total Assets.................... $14,880,472 $15,706,552 $53,697,557 $47,742,999
=========== =========== =========== ===========
* Approximately $574,000 of amortization for the nine months ended September 30, 2000 (unaudited) was directly allocated to
Instruction and Guidance ($137,000), Review.com ($21,000) and Homeroom.com ($416,000). The years 1997 and 1998 exclude
depreciation and amortization on assets from discontinued operations.
15. SUBSEQUENT EVENTS
As more fully described in Notes 1, 3, 7 and 8, effective April 1, 2000, the Company completed its restructuring. Holders of Class B
non-voting common stock have the right to require the Company to repurchase their stock under certain circumstances.
The Company, in conjunction with the aforementioned restructuring, distributed shares of Student Advantage, Inc. stock to
stockholders and employees (see Note 3).
As more fully described in Note 7, on April 18, 2000, the Company sold shares of Series A preferred stock.
As more fully described in Note 10, in April 2000, the Company's SAR and PSU Plans were discontinued and replaced by a new stock
incentive plan.
As more fully described in Note 5, in May 2000, the Company increased its investment in Tutor.com.
As more fully described in Note 8, in May 2000, the Company settled a lawsuit.
On May 30, 2000, the Company entered into an option agreement to acquire the assets comprising the businesses of Princeton Review
of Boston, Inc. and Princeton Review of New Jersey, Inc. Each of these entities provides test preparation courses under The Princeton
Review name pursuant to one or more franchise agreements.
Under this agreement, the Company has the option to acquire the operations of Princeton Review of Boston, Inc. and Princeton
Review of New Jersey, Inc. for a total purchase price of approximately $12,500,000, subject to adjustment in accordance with the
purchase agreement. If the Company exercises this option, it will be required to purchase the operations of both of these entities. This
option becomes effective upon the completion of an initial public offering of the Company's common stock and remains in effect until
December 31, 2000. If the Company exercises the option, the Company must sign a definitive purchase agreement within 30 days of
exercise and consummate the purchase within 90 days of exercise. The option agreement also restricts the Company, subject to a
number of limited exceptions, from consummating the acquisition of any entity holding a Princeton Review franchise for Los Angeles,
California, Denver, Colorado, Westport, Connecticut or the State of Texas, for one year from the date of the agreement, unless the
Company completes the acquisition contemplated by the agreement.
If the Company exercises its option to purchase these operations, 75% of the purchase price will be payable in cash at the time of
closing and 25% of the purchase price is to be paid by
F-33
129
THE PRINCETON REVIEW, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
delivery of a convertible promissory note. The promissory note will be payable in 20 equal quarterly installments beginning with the
17th calendar quarter following the closing date of the acquisition and will bear interest at the rate of 8.25% per year. The promissory
2002. EDGAR Online, Inc.
note will be convertible into common stock of the Company at the price per share at which shares of common stock are sold to the
public in the public offering for a period of 60 days, beginning on the first anniversary date of the closing of the acquisition. During
this period, the holder of the note may convert 100% or any percentage between 0% and 33% of the unpaid principal amount due
under the note into common stock.
For the year ended December 31, 1999, Princeton Review of Boston, Inc. and Princeton Review of New Jersey, Inc. had combined
revenue of approximately $10,300,000.
On October 27, 2000, the Company entered into a Line of Credit Agreement with Excel Bank, N.A. and borrowed $4,500,000. The
line of credit is due on the earlier of October 31, 2001 or 10 days after the Company's initial public offering and bears interest at a
variable rate of prime plus 1% per year.
On October 23, 2000, the Company's Board of Directors approved an .846-for-one reverse stock split of its common stock which
became effective on November 16, 2000. All share and per share amounts have been adjusted to reflect the Company's recapitalization
and stock split.
F-34
130
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of The Princeton Review of New Jersey, Inc. and The Princeton Review of Boston, Inc.
Princeton, NJ
We have audited the accompanying combined balance sheets of The Princeton Review of New Jersey, Inc. and The Princeton Review
of Boston, Inc. as of December 31, 1998 and 1999 and the related combined statements of income, combined statements of changes in
stockholders' equity and combined statements of cash flows for the years then ended. These combined financial statements are the
responsibility of the Companies' management. Our responsibility is to express an opinion on these combined financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the combined financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and disclosures in the combined financial statements. An audit
also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall
combined financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present fairly, in all material respects, the financial position of The
Princeton Review of New Jersey, Inc. and The Princeton Review of Boston, Inc. as of December 31, 1998 and 1999, and the
combined results of their operations and their cash flows for the years then ended in conformity with generally accepted accounting
principles.
/s/ CARAS & SHULMAN, P.C.
---------------------------------------------------
CARAS & SHULMAN, PC
Certified Public Accountants
Burlington, Massachusetts
May 18, 2000
F-35
131
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
2002. EDGAR Online, Inc.
COMBINED BALANCE SHEETS
DECEMBER 31,
---------------------------- SEPTEMBER 30,
1998 1999 2000
------------ ------------ -------------
(UNAUDITED)
ASSETS
Current assets
Cash (Note 1)......................................... $ 979,182 $1,020,142 $4,117,290
Investments (Note 2).................................. -- -- 516,774
Prepaid expenses...................................... 81,410 226,463 49,250
Due from affiliates (Note 5).......................... 30,152 114,541 1,194
Due from officer (Note 5)............................. 8,611 400,496 5,184
Due from landlord..................................... -- 15,711 11,010
Employee advances..................................... 3,640 3,366 1,023
---------- ---------- ----------
Total current assets............................... 1,102,995 1,780,719 4,701,725
---------- ---------- ----------
Fixed assets (Note 1)
Furniture and equipment............................... 250,304 290,348 317,969
Motor vehicle......................................... 107,304 104,548 104,548
Leasehold improvements................................ 14,903 27,903 27,903
---------- ---------- ----------
Total fixed assets................................. 372,511 422,799 450,420
Less accumulated depreciation (Note 3)............. 150,024 202,734 249,474
---------- ---------- ----------
Net fixed assets................................... 222,487 220,065 200,946
---------- ---------- ----------
Other assets
Investments, available for sale (Note 2)................ -- -- 161,181
Security deposits..................................... 24,660 24,660 31,660
Franchise fees, net of accumulated amortization (Note
1)................................................. 169,294 150,484 136,376
USMLE course, net of accumulated amortization (Note
1)................................................. 41,219 37,958 35,513
Goodwill, net of accumulated amortization (Note 1).... 574 503 450
---------- ---------- ----------
Total other assets................................. 235,747 213,605 365,180
---------- ---------- ----------
Total assets............................................ $1,561,229 $2,214,389 $5,267,851
========== ========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable...................................... $ 92,084 $ 84,086 $ --
Accrued payroll....................................... -- 80,361 --
Accrued expenses...................................... 18,074 74,363 220,793
Employee benefits..................................... 1,928 51,409 21,407
Deferred revenues (Note 1)............................ 724,954 992,849 1,490,481
Deposits.............................................. 9,595 -- --
Corporate income taxes payable........................ 243 11,124 29,273
Other current liabilities............................. 344 164 --
---------- ---------- ----------
Total current liabilities.......................... 847,222 1,294,356 1,761,954
---------- ---------- ----------
Stockholders' equity
Common stock, no par value, authorized, issued and
outstanding 503 shares............................. 1,202 1,203 1,203
Additional paid-in capital............................ 647,780 674,579 674,579
Cumulative comprehensive income (Note 2).............. -- -- 161,181
Retained earnings..................................... 65,025 244,251 2,668,934
---------- ---------- ----------
Total stockholders' equity......................... 714,007 920,033 3,505,897
---------- ---------- ----------
Total liabilities and stockholders' equity......... $1,561,229 $2,214,389 $5,267,851
========== ========== ==========
The accompanying notes are an integral part of these statements.
F-36
132
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
2002. EDGAR Online, Inc.
COMBINED STATEMENTS OF INCOME
FOR THE PERIODS ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------- ------------------------
1998 1999 1999 2000
---------- ----------- ---------- ----------
(UNAUDITED)
Revenue.................................. $9,010,582 $10,344,757 $8,486,986 $9,527,872
Cost of services provided................ 4,463,210 4,958,756 3,733,142 4,037,145
---------- ----------- ---------- ----------
Gross profit............................. 4,547,372 5,386,001 4,753,844 5,490,727
Total operating expenses................. 3,565,075 3,748,488 2,389,824 2,741,537
---------- ----------- ---------- ----------
Income from operations................... 982,297 1,637,513 2,364,020 2,749,190
Other income (expense)
Interest income........................ 32,120 55,999 21,937 51,047
Miscellaneous income................... 8,015 2,736 2,636 16,807
Bad debt............................... (10,508) (51,832) (7,451) (68)
Loss on sale of fixed asset............ -- (5,816) (5,816) --
---------- ----------- ---------- ----------
Income before profit sharing plan........ 1,011,924 1,638,600 2,375,326 2,816,976
Profit sharing plan (Note 7)............. 39,476 50,548 28,769 31,608
---------- ----------- ---------- ----------
Income before income tax expense......... 972,448 1,588,052 2,346,557 2,785,368
Income tax expense (Note 1).............. 16,497 18,418 29,371 44,485
---------- ----------- ---------- ----------
Net Income............................... $ 955,951 $ 1,569,634 $2,317,186 $2,740,883
========== =========== ========== ==========
If all of the Company's operations had been subject to income taxes, net income would have been as follows (unaudited):
Historical income before taxes......... $ 972,448 $ 1,588,052 $2,346,557 $2,785,368
Provision for taxes.................... 388,000 633,000 936,000 1,113,100
---------- ----------- ---------- ----------
Pro forma net income................... $ 584,448 $ 955,052 $1,410,557 $1,672,268
========== =========== ========== ==========
The accompanying notes are an integral part of these statements.
F-37
133
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
COMBINED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1998 AND 1999
AND THE NINE MONTHS ENDED SEPTEMBER 30, 2000 (UNAUDITED)
2002. EDGAR Online, Inc.
COMMON STOCK ADDITIONAL CUMULATIVE
--------------- PAID-IN RETAINED COMPREHENSIVE
SHARES AMOUNT CAPITAL EARNINGS INCOME TOTAL
------ ------ ---------- ----------- ------------- -----------
Balance, December 31, 1997.... 501 $1,201 $628,901 $ (108,171) -- $ 521,931
Net income.................... -- -- -- 955,951 -- 955,951
Stockholder distributions..... -- -- -- (782,755) -- (782,755)
Common stock issuance......... 1 1 18,879 -- -- 18,880
--- ------ -------- ----------- -------- -----------
Balance, December 31, 1998.... 502 1,202 647,780 65,025 -- 714,007
Net income.................... -- -- 1,569,634 -- 1,569,634
Stockholder distributions..... -- -- (1,390,408) -- (1,390,408)
Common stock issuance......... 1 1 26,799 -- -- 26,800
--- ------ -------- ----------- -------- -----------
Balance, December 31, 1999.... 503 1,203 674,579 244,251 -- 920,033
Net income (unaudited)........ -- -- -- 2,740,883 -- 2,740,883
Stockholder distributions
(unaudited)................. -- -- -- (316,200) -- (316,200)
Unrealized holding gains
arising during period
(unaudited)................. -- -- -- -- $161,181 161,181
--- ------ -------- ----------- -------- -----------
Balance, September 30, 2000
(unaudited)................. 503 $1,203 $674,579 $ 2,668,934 $161,181 $ 3,505,897
=== ====== ======== =========== ======== ===========
The accompanying notes are an integral part of these statements.
F-38
134
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
COMBINED STATEMENTS OF CASH FLOWS
FOR THE PERIODS ENDED
2002. EDGAR Online, Inc.
DECEMBER 31, SEPTEMBER 30,
-------------------------- ------------------------
1998 1999 1999 2000
----------- ----------- ---------- ----------
(UNAUDITED)
Cash provided by (used for) operating
activities
Net income............................ $ 955,951 $ 1,569,634 $2,317,186 $2,740,883
Items not affecting cash
Depreciation and amortization...... 68,128 78,936 62,881 63,344
Loss on sale of fixed assets....... -- 5,816 5,816 --
Bad debt........................... 10,508 51,832 7,451 68
Changes in current assets and
liabilities
Other current assets............... 158,804 (168,821) 14,747 184,257
Other current liabilities.......... 182,351 403,635 490,202 467,532
----------- ----------- ---------- ----------
Cash provided by operating activities... 1,375,742 1,941,032 2,898,283 3,456,084
----------- ----------- ---------- ----------
Cash provided by (used for) investing
activities
Cash paid for investments............. -- -- -- (516,774)
Acquisition of fixed assets........... (115,667) (60,188) (52,796) (27,621)
Advances to affiliates................ 10,818 (84,391) (64,478) 113,347
Deposits.............................. 6,882 -- -- (7,000)
----------- ----------- ---------- ----------
Cash used for investing activities...... (97,967) (144,579) (117,274) (438,048)
----------- ----------- ---------- ----------
Cash provided by (used for) financing
activities
Officer loans......................... (2,954) (391,885) (537,227) 395,312
Stockholder distributions............. (782,755) (1,390,408) (334,600) (316,200)
Common stock issuance................. 1 1 -- --
Additional paid-in capital............ 18,879 26,799 -- --
----------- ----------- ---------- ----------
Cash provided by (used for) financing
activities............................ (766,829) (1,755,493) (871,827) 79,112
----------- ----------- ---------- ----------
Increase in cash........................ 510,946 40,960 1,909,182 3,097,148
Cash, beginning of period............... 468,236 979,182 979,182 1,020,142
----------- ----------- ---------- ----------
Cash, end of period..................... $ 979,182 $ 1,020,142 $2,888,364 $4,117,290
=========== =========== ========== ==========
The accompanying notes are an integral part of these statements.
F-39
135
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
DECEMBER 31, 1998 AND 1999
SEPTEMBER 30, 1999 (UNAUDITED) AND 2000 (UNAUDITED)
NOTE 1 -- ACCOUNTING POLICIES
A summary of the significant accounting policies applied on a consistent basis by The Princeton Review of New Jersey, Inc. and The
Princeton Review of Boston, Inc. (the "Companies") in the preparation of the accompanying combined financial statements is set forth
below:
Nature of Operations -- the Companies provide test preparation review courses to individuals in the New Jersey and Boston area who
are pursuing entrance into a college or university.
2002. EDGAR Online, Inc.
Use of Estimates -- the preparation of combined financial statements in conformity with generally accepted accounting principles
requires the use of estimates and assumptions regarding certain types of assets, liabilities, revenues and expenses. Such estimates
primarily relate to unsettled transactions and events as of the date of the combined financial statements. Accordingly, upon settlement,
actual results may differ from estimated amounts.
Cash and Cash Equivalents -- the Companies consider all highly liquid debt instruments purchased with an original maturity of three
months or less to be cash equivalents.
The Companies maintain cash balances at various financial institutions. Accounts at each institution are insured by the Federal Deposit
Insurance Corporation up to $100,000. The Companies' accounts at these institutions may, at times, exceed the federally insured limits.
The Companies have not experienced any losses in such accounts.
The Companies maintain a cash balance of approximately $3,052,000 in commercial paper for the nine months ended September 30,
2000. Such balances are not insured. The Companies have not experienced any losses in such accounts.
Investments -- investments in which the Companies have less than a 20% interest are carried at cost adjusted for the Companies'
proportionate share of their undistributed earnings and losses.
The Companies' securities investments that are bought and held principally for the purpose of selling them in the near term are
classified as trading securities. Trading securities are recorded at fair value on the balance sheet date in current assets, with the change
in fair value during the period included in earnings.
Securities investments that the Companies have the positive intent and ability to hold to maturity are classified as held-to-maturity
securities and recorded at amortized cost in investments and other assets. Securities investments not classified as either
held-to-maturity or trading securities are classified as available-for-sale securities. Available for sale securities are recorded at fair
value in investments and other assets on the balance sheet, with the change in fair value during the period excluded from earnings and
recorded net of tax as a component of other comprehensive income.
Deferred Revenue -- the Companies recognize tuition revenue collected from students at the time the courses are conducted.
Fixed Assets -- all fixed assets are stated at cost. Major additions and improvements are charged to the property accounts; while
replacements, maintenance or repairs that do not improve or extend the life of the respective assets are expensed in the year incurred.
Fully depreciated assets are retained in property and equipment until they are removed from service.
F-40
136
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Fully depreciated assets as of December 31, 1998 and 1999, were approximately $59,000 and $61,700, respectively. Fully depreciated
assets as of September 30, 2000 (unaudited) were $61,700.
Realization of Long-Lived Assets -- in March 1995, the Financial Accounting Standards Board (FASB) issued Statement of Financial
Accounting Standards (SFAS) No. 121, Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed
Of. It is the Companies' policy to review its long-lived assets and certain related intangibles for impairment whenever changes in
circumstances indicate that the carrying value of an asset may not be fully recoverable.
Depreciation -- depreciation is computed by the straight-line method. The estimated useful life of each class of assets is as follows:
2002. EDGAR Online, Inc.
ASSETS LIFE IN
YEARS
------
-------------
Furniture and equipment....................... 5-7
Motor vehicles................................ 5
Leasehold improvements........................ 31.5-39
For the years ended December 31, 1998 and 1999, depreciation expense totaled $45,987 and $56,795, respectively. For the nine
months ended September 30, 1999 and 2000, depreciation expense totaled $46,275 and $46,738, respectively.
Unamortized Costs -- the Companies are amortizing the cost of an USMLE course over the life of the agreement. Amortization
expense charged to operations for the years ended December 31, 1998 and 1999, was $3,260 each year. Amortization expense charged
to operations for the nine months ended September 30, 1999 and 2000, was $2,445 each period (unaudited).
Franchise Fees -- the Companies are amortizing the cost of franchising fees over the life of the agreements. Amortization expense
charged to operations for the years ended December 31, 1998 and 1999, totaled $18,810 each year. Amortization expense charged to
operations for the nine months ended September 30, 1999 and 2000 totaled $14,108 each period (unaudited).
Goodwill -- the Companies are amortizing the cost of goodwill over a 14-year period. Amortization expense charged to operations for
the years ended December 31, 1998 and 1999, totaled $71 each year. Amortization expense charged to operations for the nine months
ended September 30, 1999 and 2000 totaled $53 each period (unaudited).
Income Taxes -- effective January 1, 1988, the Companies elected to be taxed as Subchapter S corporations under Section 1362 of the
Internal Revenue Code. As a result of this election, the Companies are no longer subject to corporate level income taxes, and the future
obligation for income taxes are the responsibility of the shareholders. The Companies are responsible for certain state excise taxes and
income taxes when revenue exceeds specified levels.
For the years ended December 31, 1998 and 1999, a provision was recorded for state taxes totaling $16,497 and $18,418, respectively.
For the nine months ended September 30, 1999 and 2000, a provision was recorded for state taxes totaling $29,371 and $44,485,
respectively.
NOTE 2 -- INVESTMENTS
The Princeton Review of New Jersey, Inc. and The Princeton Review of Boston, Inc. had minority interests in Princeton Review
Publishing, LLC, a publisher of books and software
F-41
137
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
products. The investment was carried at cost, adjusted for the Companies' proportionate share of its undistributed earnings or losses.
At December 31, 1998 and 1999, there was no cost or accumulated earnings associated with this investment. In March, 2000
(unaudited), The Princeton Review of New Jersey, Inc. and The Princeton Review of Boston, Inc. purchased an additional 131.83
units in Princeton Review Publishing, LLC, respectively, for a total cost of $516,774. Effective April 1, 2000, these membership units
were converted into 442,247 shares of Class B non-voting common stock of The Princeton Review, Inc.
Investments in securities are summarized as follows at September 30 (unaudited):
2002. EDGAR Online, Inc.
GROSS GROSS
UNREALIZED UNREALIZED FAIR
GAIN LOSS VALUE
---------- ----------
--------
Available-for-sale Securities:
2000 Mutual Funds........................... $161,181 --
$161,181
======== ===
========
Other comprehensive income for the nine months ended September 30, 2000 (unaudited), includes an unrealized holding gain on
available-for-sale securities of $161,181. The before-tax and after-tax amount of unrealized holding gains included in accumulated
comprehensive income is as follows, for the nine months ended September 30 (unaudited):
BEFORE TAX EXPENSE AFTER
2000 TAX (NOTE 1) TAX
---- -------- -----------
--------
Unrealized holding gains........................ $161,181 --
$161,181
======== ===
========
NOTE 3 -- ACCUMULATED DEPRECIATION
Breakdown of accumulated depreciation by each asset class was as follows:
DECEMBER 31,
-------------------- SEPTEMBER
30,
1998 1999 2000
-------- --------
-------------
(UNAUDITED)
Furniture and equipment....................... $100,373 $146,726 $185,644
Motor vehicles................................ 45,479 51,207 58,434
Leasehold improvements........................ 4,172 4,801 5,396
-------- -------- --------
Total......................................... $150,024 $202,734 $249,474
======== ======== ========
NOTE 4 -- LEASING ARRANGEMENTS
Operating Leases
The Companies lease certain operating facilities and vehicles under terms of operating leases expiring in years through 2007. For the
years ended December 31, 1998 and 1999, lease expenses under terms of these operating leases totaled $172,970 and $194,234,
respectively. For the nine months ended September 30, 1999 and 2000 (unaudited), operating leases totaled $145,634 and $188,131,
respectively.
2002. EDGAR Online, Inc.
F-42
138
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Future minimum lease payments under noncancellable operating leases, by year and in aggregate, are as follows:
YEAR ENDING NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
------------ -----------------
(UNAUDITED)
2000......................... $ 197,297 2001......................... $ 279,579
2001......................... 210,844 2002......................... 260,001
2002......................... 198,131 2003......................... 215,095
2003......................... 168,934 2004......................... 169,857
2004 and thereafter.......... 417,285 2005 and thereafter.......... 333,288
---------- ----------
Total future minimum lease
payments................... $1,192,491 $1,257,820
========== ==========
NOTE 5 -- RELATED PARTY TRANSACTIONS
The Companies entered into several related party transactions with other franchisees, parties that share common ownership and
management. The advances are payable on demand and do not carry a stated interest rate.
Due from affiliates consisted of the following:
DECEMBER 31,
------------------- SEPTEMBER
30,
1998 1999 2000
------- --------
-------------
(UNAUDITED)
Princeton Review of Hawaii..................... $ 7,948 $ 49,442 $ 1,037
Princeton Review of Quebec..................... 19,874 65,099 157
------- -------- --------
Total.......................................... $27,822 $114,541 $ 1,194
======= ======== ========
In addition, the Companies entered into a related party transaction with an entity that shares common ownership and management,
Everbare, Inc. The advances are payable on demand and carry no stated interest rate. As of December 31, 1998, advances due from
this entity totaled $2,330.
Fees of $12,500 and $13,500 from The Princeton Review of Hawaii and The Princeton Review of Quebec were recorded for
management services in December 31, 1998 and 1999, respectively. Fees of $10,125 and $15,000 from The Princeton Review of
Hawaii and The Princeton Review of Quebec were recorded for management services in September 30, 1999 and 2000 (unaudited),
respectively.
Due from (to) officers consisted of the following:
2002. EDGAR Online, Inc.
DECEMBER 31,
------------------- SEPTEMBER
30,
1998 1999 2000
------- --------
-------------
(UNAUDITED)
Rob Cohen...................................... $ 3,585 $429,241 $ 1,741
Matt Rosenthal................................. 5,026 (28,745) 3,443
------- -------- --------
Total.......................................... $ 8,611 $400,496 $ 5,184
======= ======== ========
F-43
139
THE PRINCETON REVIEW OF NEW JERSEY, INC. AND
THE PRINCETON REVIEW OF BOSTON, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 6 -- STOCKHOLDERS' EQUITY
As of December 31, 1998, 0.80 shares of common stock were issued to an employee of the Companies. Total issue price of the stock
was $18,880.
As of December 31, 1999, 1 share of common stock was issued to an employee of the Companies. Total issue price of the stock was
$26,800.
NOTE 7 -- PROFIT SHARING PLAN
The Companies maintain a profit sharing plan covering substantially all employees. The amount of contribution is discretionary and is
limited by aggregate compensation of participants during the year. For the years ended December 31, 1998 and 1999, the profit
sharing contribution totaled $39,476 and $50,548, respectively. For the nine months ended September 30, 1999 and 2000 (unaudited),
the profit sharing contribution totaled $28,769 and $31,608, respectively.
NOTE 8 -- RETAINED EARNINGS
The Companies elected to be treated as Subchapter S corporations as of January 1, 1988. Shareholders account for their share of
income on their applicable individual income tax returns.
Retained earnings was comprised of the following:
2002. EDGAR Online, Inc.
DECEMBER 31,
----------------------- SEPTEMBER 30,
1998 1999 2000
--------- ----------- -------------
(UNAUDITED)
C corporation deficit......................... $ (19,482) $ (19,482) $ (19,482)
--------- ----------- ----------
S corporation
Accumulated adjustments, beginning............ (88,689) 84,507 263,733
Net income.................................. 955,951 1,569,634 2,740,883
Stockholder distributions................... (782,755) (1,390,408) (316,200)
--------- ----------- ----------
Accumulated adjustments, ending............... 84,507 263,733 2,688,416
--------- ----------- ----------
Total retained earnings....................... $ 65,025 $ 244,251 $2,668,934
========= =========== ==========
NOTE 9 -- SUPPLEMENTAL DISCLOSURE ON CASH FLOW INFORMATION
The Companies made the following payments for income taxes:
DECEMBER 31, SEPTEMBER 30,
---------------- ----------------
1998 1999 1999 2000
------- ------ ------ -------
(UNAUDITED)
Income Taxes........................................ $36,176 $7,504 $1,757 $26,336
======= ====== ====== =======
F-44
140
[Inside Back Cover]
At the top left is The Princeton Review, Inc. logo. Below the logo are the words "Better Scores, Better Schools" and a color
photograph of a teacher writing on a blackboard. To the right of this photograph is the Review.com logo.
In the center of the page is a color photograph of three students holding books and notebooks. To the left of this photograph is a
graphic depiction of some of the links on our PrincetonReview.com homepage with the words "Test Prep Courses," "Counseling &
Tutoring," "Books & Software," "Corporate," "Contact Us," "Work for Us," "Review.com," "Homeroom.com," "Educators" and "Log
in Here."
At the bottom right of the page is the Homeroom.com logo.
141
5,400,000 SHARES
[TPR LOGO]
COMMON STOCK
PROSPECTUS
2002. EDGAR Online, Inc.
CHASE H&Q
U.S. BANCORP PIPER JAFFRAY
FIRST UNION SECURITIES, INC.
, 2000
You should rely only on information contained in this prospectus. We have not authorized anyone to provide you with information
different from that contained in this prospectus. We are offering to sell, and seeking offers to buy, shares of common stock only in
jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock.
No action is being taken in any jurisdiction outside the United States to permit a public offering of our common stock or possession or
distribution of this prospectus in that jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside the
United States are required to inform themselves about and to observe any restrictions as to this offering and the distribution of this
prospectus applicable to that jurisdiction.
Until , 2000, all dealers that buy, sell or trade in our common stock, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect
to their unsold allotments or subscriptions.
142
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION(1)
The following table sets forth the expenses payable by The Princeton Review in connection with this offering (excluding underwriting
discounts and commissions):
2002. EDGAR Online, Inc.
NATURE OF EXPENSE AMOUNT
-----------------
----------
SEC Registration Fee........................................ $
21,313
NASD Filing Fee.............................................
8,573
Nasdaq National Market Listing Fee..........................
95,000
Accounting Fees and Expenses................................
700,000
Legal Fees and Expenses.....................................
750,000
Printing Expenses...........................................
300,000
Blue Sky Qualification Fees and Expenses....................
7,500
Transfer Agent's Fee........................................
15,000
Miscellaneous...............................................
202,614
----------
Total..................................................
$2,100,000
==========
(1) The amounts set forth above, except for the SEC, NASD and Nasdaq National Market Listing fees, are in each case estimated.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law, or the DGCL, allows a corporation to eliminate the personal liability of
directors of the corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability:
- for any breach of the director's duty of loyalty to the corporation or its stockholders;
- for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
- under section 174 of the DGCL regarding unlawful dividends and stock purchases; or
- for any transaction from which the director derived an improper personal benefit.
The Princeton Review's certificate of incorporation includes a provision that eliminates the personal liability of its directors for
monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability is expressly forbidden
by the DGCL, as it now exists or is later amended.
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by
reason of such person being or having been a director, officer, employee of or agent of the corporation. The statue provides that it is
not exclusive of other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
The Princeton Review's certificate of incorporation requires The Princeton Review to indemnify to the fullest extent authorized or
permitted by the DGCL (as it existed at the time of the adoption of the certificate of incorporation, or, if the DGCL is later amended to
permit broader indemnification, as so amended) each person who was or is a party or is threatened to be made a
2002. EDGAR Online, Inc.
II-1
143
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal administrative or investigative, by
reason of the fact that he is or was a director or officer of The Princeton Review, or is or was serving at the request of The Princeton
Review as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a
director, officer employee or agent, or in any other capacity while serving as a director, officer employee or agent. The Princeton
Review is only required to indemnify any such person seeking indemnification in connection with an action initiated by such person if
such action was authorized by the board of directors. The certificate of incorporation also provides that The Princeton Review must
advance expenses to a director of officer in advance of the final disposition of the matter with respect to which such expenses are being
advanced upon receipt of an undertaking, if such undertaking is required by the DGCL, by or on behalf of such director or officer to
repay such amount if it is ultimately determined that the director or officer is not entitled to be indemnified by The Princeton Review.
The certificate of incorporation further states that The Princeton Review may, by action of the board of directors, provide
indemnification to employees and agents of the company with the same scope and effect as the foregoing provisions relating to
directors and officers.
The certificate of incorporation provides that the rights to indemnification and advancement of expenses conferred by it are not
exclusive of any other right that any person may have or acquire under any statute, any amendment to the certificate of incorporation,
by-laws, agreement, vote of stockholders or disinterested directors or otherwise.
The Princeton Review maintains directors and officers liability insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following is a description of our sales of unregistered securities for the last three years. All share and per share amounts of
common stock have been adjusted to reflect a .846-for-one reverse common stock split effected on November 16, 2000.
(1) On June 2, 2000, we issued two warrants in connection with the settlement of a lawsuit against us. One warrant was issued to the
plaintiff, and the other warrant was issued to the plaintiff's law firm. Together the warrants are exercisable for such number of shares of
our common stock as is obtained by dividing $1.2 million by the initial public offering price of our common stock, at an exercise price
equal to the initial public offering price of our common stock. We received no proceeds from the issuance of these warrants and may
receive aggregate proceeds of up to $1.2 million from their exercise. We issued these warrants in reliance on the exemption provided
by
Section 4(2) of the Securities Act of 1933 as transactions not involving a public offering.
(2)On April 27, 2000, we sold a total of 35,008 shares of Series A preferred stock to The Atkins Family Trust, Ajax Capital, LLC and
Howard
A. Tullman, who is also one of our directors. These shares were sold at a purchase price of $7.27 per share, and we received
approximately $254,530.00 in aggregate gross proceeds paid in cash. We issued these shares of Series A preferred stock in reliance on
the exemption from registration provided by Section 4(2) of the Securities Act of 1933 as transactions not involving a public offering.
(3)On April 18, 2000, we sold a total of 917,204 shares of Series A preferred stock to SGC Capital Partners II, LLC, Olympus Growth
Fund III, L.P. and Olympus Executive Fund, L.P. These shares were sold at a purchase price of $7.27 per share. We received
approximately $27.0 million in aggregate gross proceeds paid in cash. We issued these shares of Series A preferred stock in reliance
on the exemption from registration provided by Section 4(2) of the Securities Act of 1933 as transactions not involving a public
offering.
II-2
144
(4)On April 18, 2000, we issued a total of 1,084,132 shares of Class B non-voting common stock to 65 employees and one of our
directors in connection with their giving up certain rights under our previously existing Phantom Stock and Stock Appreciation Rights
Plans. For purposes of these transactions, we valued our stock at $7.39 per share, and we issued these shares pursuant to our 2000
Stock Option Plan. We received no proceeds from these issuances. We issued 250,492 of these shares of Class B non-voting common
stock in reliance on the exemption from registration provided by Rule 701 promulgated under Section 3(b) of the Securities Act of
1933 as transactions pursuant to compensatory benefit plans or contracts relating to compensation. We issued the remaining 666,712
of these shares of Class B non-voting common stock in reliance on the exemption from registration provided by Section 4(2) of the
Securities Act of 1933 as transactions not involving a public offering.
2002. EDGAR Online, Inc.
(5)Since April 1, 2000, we have granted options to our employees and directors exercisable for a total of 1,437,364 shares of our Class
B non-voting common stock at exercise prices ranging from $1.73 to $7.39 per share. We granted each of these options pursuant to
our 2000 Stock Option Plan. We received no proceeds from these issuances. We issued these options to acquire our Class B
non-voting common stock in reliance on the exemption from registration provided by Rule 701 as transactions pursuant to
compensatory benefit plans or contracts relating to compensation.
(6)On April 1, 2000, we issued a total of 12,561,986 shares of our Class A common stock and 1,820,025 shares of our Class B
non-voting common stock to all 22 of our previous equity holders in connection with the consummation of our corporate restructuring.
These shares were issued in exchange for equity interests in our predecessor corporation and our LLC subsidiaries. For purposes of
these transactions, we valued our stock at $7.39 per share. We received no proceeds from the exchange of the shares, but we received
aggregate proceeds of approximately $1.1 million from the exercise of preemptive rights by our franchisees in relation to the
restructuring. We issued these shares of Class A common stock and Class B non-voting common stock in reliance on the exemption
from registration provided by Section 4(2) of the Securities Act of 1933 as transactions not involving a public offering.
(7)The following table lists the dates, amounts and proceeds of all sales of Phantom Stock Units before our Phantom Stock Plan was
terminated on April 18, 2000. The per-unit prices set forth in the following table have been adjusted to reflect our restructuring
consummated on April 1, 2000 and our .846-for-one common stock split effected on November 16, 2000. We issued these Phantom
Stock Units to our employees, consultants and directors in reliance on the exemption from registration provided by Rule 701 as
transactions pursuant to compensatory benefit plans or contracts relating to compensation.
1998 1999 2000
--------------------------------- --------------------------------- ---------------------------------
NUMBER OF PRICE PER AGGREGATE NUMBER OF PRICE PER AGGREGATE NUMBER OF PRICE PER AGGREGATE
PSUS SOLD UNIT PROCEEDS PSUS SOLD UNIT PROCEEDS PSUS SOLD UNIT PROCEEDS
--------- --------- --------- --------- --------- --------- --------- --------- ---------
20,660 $2.60 $53,724 14,755 $2.96 $43,600 31,972 $5.32 $170,060
15,499 2.96 45,800 12,622 5.32 67,140 -- -- --
II-3
145
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
2002. EDGAR Online, Inc.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1.1* Form of Underwriting Agreement.
2.1** Conversion and Contribution Agreement, dated as of March
31,
2000, by and among The Princeton Review, Inc., the
Non-Voting Members of Princeton Review Publishing LLC, John
S. Katzman and TPR Holdings, Inc.
2.2** RH Contribution Agreement, dated as of March 31, 2000, by
and among Random House TPR, Inc., Random House, Inc., The
Princeton Review, Inc., John S. Katzman, and TPR Holdings,
Inc.
2.3** TPR Contribution Agreement, dated as of March 31, 2000, by
and among The Princeton Review, Inc., each of the persons
listed on Schedule I attached to the agreement and TPR
Holdings, Inc.
2.4 Option Agreement, dated as of May 30, 2000, by and among
Princeton Review Operations, LLC, Princeton Review of
Boston, Inc. and Princeton Review of New Jersey, Inc.
3.1** Restated Certificate of Incorporation.
3.1.1 Amendment to Restated Certificate of Incorporation.
3.2* Form of Amended and Restated Certificate of Incorporation,
to be filed prior to the closing of the offering made under
this Registration Statement.
3.3** By-laws.
4.1* Form of Specimen Common Stock Certificate.
5.1* Opinion of Patterson, Belknap, Webb & Tyler LLP as to the
validity of the securities being offered.
10.1** Stockholders Agreement, dated as of April 1, 2000, by and
among The Princeton Review, Inc., and its stockholders.
10.2** Stock Purchase Agreement, dated April 18, 2000, by and
among
The Princeton Review, Inc., SG Capital Partners LLC,
Olympus
Growth Fund III, L.P. and Olympus Executive Fund, L.P.
10.3** Joinder Agreement, dated April 18, 2000, to the
Stockholders
Agreement dated April 1, 2000, among stockholders of The
Princeton Review, Inc.
10.4** Investor Rights Agreement, dated April 18, 2000, by and
among The Princeton Review, Inc., SG Capital Partners LLC,
Olympus Growth Fund III, L.P. and Olympus Executive Fund,
L.P.
10.5** The Princeton Review, Inc. 2000 Stock Incentive Plan, March
2000.
10.6** Form of Incentive Stock Option Agreement.
10.7** Letter Agreement, dated August 17, 1999, by and between
Princeton Review Operations, LLC and The Chase Manhattan
Bank.
10.7.1 Amendment to Letter Agreement, dated September 26, 2000, by
and between Princeton Review Operations, LLC and The Chase
Manhattan Bank.
10.8** Master Service Agreement, dated June 16, 1999, by and
between Frontier Global Center and The Princeton Review,
Inc.
10.9** Addendum to Master Service Agreement, dated June 18, 1999.
10.10** Software Purchase Agreement, dated as of June 23, 1998, by
and between Learning Company Properties and Princeton
Review
Publishing, LLC.
10.11** The Princeton Review Executive Compensation Policy
Statement.
10.12** Office Lease, dated as of April 23, 1992, as amended, by
and
between The Princeton Review, Inc. and 2316 Broadway Realty
Co. 2002. EDGAR Online, Inc.
10.13** Amendment to Office Lease, dated December 9, 1993.
10.14** Second Amendment to Office Lease, dated February 6, 1995.
10.15** Third Amendment to Office Lease, dated April 2, 1996.
II-4
146
2002. EDGAR Online, Inc.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
10.17** Employment Agreement, dated as of August 7, 2000, by and
between The Princeton Review, Inc. and John S. Katzman.
10.18** Employment Agreement, dated as of April 27, 2000, by and
between The Princeton Review, Inc. and Mark Chernis.
10.19** Employment Agreement, dated as of April 1, 2000, by and
between The Princeton Review, Inc. and Stephen Melvin.
10.20** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Stephen
Quattrociocchi.
10.21** Employment Agreement, dated as of April 18, 2000, by and
between The Princeton Review, Inc. and Evan Schnittman.
10.22** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Linda Nessim-Rubin.
10.23** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Bruce Task.
10.24** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Steven Hodas.
10.25** Employment Agreement, dated as of April 28, 2000, by and
between The Princeton Review, Inc. and Peter Taylor.
10.26** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Mark Chernis.
10.27** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Steven Hodas.
10.28** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Richard Katzman.
10.29** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Stephen Melvin.
10.30** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Linda Nessim-Rubin.
10.31** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Stephen Quattrociocchi.
10.32** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Evan Schnittman.
10.33** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Peter Taylor.
10.34** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Bruce Task.
10.35** Office Lease by and between The Rector, Church-Wardens and
Vestrymen of Trinity Church in the City of New York, as
Landlord, and Princeton Review Publishing, LLC, as Tenant.
10.36+ Agreement, dated September 1, 1998, by and between The
Educational and Professional Publishing Group, a unit of
the
McGraw-Hill Companies, Inc., and Princeton Review
Publishing, LLC.
10.37 Franchise Agreement, dated as of June 14, 1986, by and
between The Princeton Review Management Corp. and Robert
Cohen (Princeton Review of New Jersey).
10.38 Franchise Agreement, dated as of June 14, 1986, by and
between The Princeton Review Management Corp. and Matthew
Rosenthal (Princeton Review of Boston).
10.39 Franchise Agreement, dated as of July 1, 1986, by and
between The Princeton Review Management Corp. and Lloyd
Eric
Cotsen (Lecomp Company, Inc.).
10.40 Franchise Agreement, dated as of September 13, 1986, by and
between The Princeton Review Management Corp. and Robert
Case, Richard McDugald and Kevin Campbell (Test Services,
Inc.).
10.41 Addendum to the Franchise Agreement, dated as of May 31,
1995, by and between The Princeton Review Management Corp.
and the persons and entities listed on the Franchisee
Joinders.
2002. EDGAR Online, Inc.
II-5
147
EXHIBIT
NUMBER DESCRIPTION
------- -----------
10.42 Formation Agreement, dated as of May 31, 1995, by and among
The Princeton Review Publishing Company, LLC., The
Princeton
Review Publishing Co., Inc., the Princeton Review
Management
Corp. and the independent franchisees.
10.43 Distance Learning Waiver, dated as of May 30, 2000, by and
among Princeton Review Management, LLC and Princeton Review
of New Jersey, Inc. and Princeton Review of Boston, Inc.
10.44 Distance Learning Waiver, dated as of June 21, 2000, by and
between Princeton Review Management, LLC and Lecomp, Inc.
10.45 Pledge and Security Agreement, dated as of September 19,
2000, by and between Steven Hodas and The Princeton Review,
Inc.
10.46 Promissory Note, dated as of September 19, 2000, made by
Steven Hodas in favor of The Princeton Review, Inc.
10.47 Commitment Letter, dated as of September 20, 2000, by and
between Excel Bank, N.A. and The Princeton Review, Inc.,
with respect to $4,500,000 line of credit.
10.48 Promissory Note, dated as of October 27, 2000, made by The
Princeton Review, Inc. in favor of Excel Bank, N.A., in the
principal amount of $4,500,000.
10.49 Security Agreement, dated as of October 27, 2000, executed
by The Princeton Review, Inc. for the benefit of Excel
Bank,
N.A.
10.50 Form of Guaranty, dated as of October 27, 2000, made by
each
of Princeton Review Management, L.L.C., Princeton Review
Products, L.L.C., Princeton Review Operations, L.L.C. and
Princeton Review Publishing, L.L.C., for the benefit of
Excel Bank, N.A.
10.51 Form of Subsidiary Security Agreement, dated as of October
27, 2000, made by each of Princeton Review Management,
L.L.C., Princeton Review Products, L.L.C., Princeton Review
Operations, L.L.C. and Princeton Review Publishing, L.L.C.,
for the benefit of Excel Bank, N.A.
16.1 Letter re: change in certifying accountant.
21.1** Subsidiaries of the Registrant.
23.1* Consent of Patterson, Belknap, Webb & Tyler LLP (included
in
Exhibit 5.1 hereto).
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Caras & Shulman, PC.
24.1** Powers of Attorney (included on the signature pages
hereto).
27.1 Financial Data Schedule.
27.2** Financial Data Schedule.
* To be filed by amendment.
**Previously filed.
2002. EDGAR Online, Inc.
+ Confidential treatment requested.
(B) FINANCIAL STATEMENT SCHEDULES (SEE PAGES S-1 AND S-2).
Report of Independent Auditors on Financial Statement Schedule
Schedule II -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in
the financial statements or notes thereto.
ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each
purchaser.
II-6
148
2. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of The Princeton Review, Inc. pursuant to the foregoing provisions, or otherwise, The Princeton Review, Inc. has
been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed
in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by The Princeton Review, Inc. of expenses incurred or paid by a director, officer, or a controlling person of The Princeton
Review, Inc. in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, The Princeton Review, Inc. will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
3. The undersigned registrant hereby undertakes that:
a. For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by The Princeton Review,
Inc. pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was
declared effective.
b. For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
II-7
149
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Princeton Review, Inc. has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York on November
16, 2000.
THE PRINCETON REVIEW, INC.
2002. EDGAR Online, Inc.
By: /s/ JOHN S. KATZMAN
------------------------------------
Name: John S. Katzman
Title: Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN S. KATZMAN Chairman and Chief Executive November 16, 2000
--------------------------------------------------- Officer (Principal Executive
John S. Katzman Officer)
/s/ STEPHEN MELVIN Chief Financial Officer November 16, 2000
--------------------------------------------------- (Principal Financial and
Stephen Melvin Accounting Officer)
* Director November 16, 2000
---------------------------------------------------
Richard Katzman
* Director November 16, 2000
---------------------------------------------------
V. Frank Pottow
* Director November 16, 2000
---------------------------------------------------
John C. Reid
* Director November 16, 2000
---------------------------------------------------
Richard Sarnoff
* Director November 16, 2000
---------------------------------------------------
Sheree T. Speakman
* Director November 16, 2000
---------------------------------------------------
Howard A. Tullman
*By: /s/ STEPHEN MELVIN
------------------------------
Stephen Melvin
Attorney-in-fact
II-8
2002. EDGAR Online, Inc.
150
REPORT OF INDEPENDENT AUDITORS
We have audited the consolidated financial statements of The Princeton Review, Inc. and Subsidiaries as of December 31, 1998 and
1999 and the related consolidated statements of operations, stockholders' equity (deficit) and redeemable stock and cash flows for the
years then ended and have issued our report thereon dated March 16, 2000, except for Note 15, as to which the date is November 16,
2000. Our audits also included the consolidated financial statement schedule listed in Item 16(b) of this Registration Statement. This
schedule is the responsibility of the Company's management. Our responsibility is to express an opinion based on our audits.
In our opinion, the consolidated financial statement schedule referred to above, when considered in relation to the basic consolidated
financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
/s/ Ernst & Young
LLP
New York, New York
March 16, 2000
S-1
151
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
AND NINE MONTHS ENDED SEPTEMBER 30, 2000
BALANCE AT ADDITIONS DEDUCTIONS BALANCE AT
BEGINNING CHARGED TO FROM END OF
OF PERIOD EXPENSE ALLOWANCE PERIOD
---------- ---------- ---------- ----------
ALLOWANCE FOR DOUBTFUL ACCOUNTS
Year Ended December 31, 1997................. 1,142,932 0 22,970 1,119,962
Year Ended December 31, 1998................. 1,119,962 482,670 932,181 670,451
Year Ended December 31, 1999................. 670,451 392,479 342,747 720,183
Nine Months Ended September 30, 2000
(unaudited)................................ 720,183 182,902 422,462 480,623
S-2
152
EXHIBIT INDEX
2002. EDGAR Online, Inc.
EXHIBIT
NUMBER DESCRIPTION
PAGE
------- -----------
----
1.1* Form of Underwriting Agreement..............................
2.1** Conversion and Contribution Agreement, dated as of March 31,
2000, by and among The Princeton Review, Inc., the
Non-Voting Members of Princeton Review Publishing LLC, John
S. Katzman and TPR Holdings, Inc. ..........................
2.2** RH Contribution Agreement, dated as of March 31, 2000, by
and among Random House TPR, Inc., Random House, Inc., The
Princeton Review, Inc., John S. Katzman, and TPR Holdings,
Inc. .......................................................
2.3** TPR Contribution Agreement, dated as of March 31, 2000, by
and among The Princeton Review, Inc., each of the persons
listed on Schedule I attached to the agreement and TPR
Holdings, Inc. .............................................
2.4 Option Agreement, dated as of May 30, 2000, by and among
Princeton Review Operations, LLC, Princeton Review of
Boston, Inc. and Princeton Review of New Jersey, Inc. ......
3.1** Restated Certificate of Incorporation. .....................
3.1.1 Amendment to Restated Certificate of Incorporation.
3.2* Form of Amended and Restated Certificate of Incorporation,
to be filed prior to the closing of the offering made under
this Registration Statement. ...............................
3.3** By-laws. ...................................................
4.1* Form of Specimen Common Stock Certificate. .................
5.1* Opinion of Patterson, Belknap, Webb & Tyler LLP as to the
validity of the securities being offered. ..................
10.1** Stockholders Agreement, dated as of April 1, 2000, by and
among The Princeton Review, Inc., and its stockholders. ....
10.2** Stock Purchase Agreement, dated April 18, 2000, by and among
The Princeton Review, Inc., SG Capital Partners LLC, Olympus
Growth Fund III, L.P. and Olympus Executive Fund, L.P. .....
10.3** Joinder Agreement, dated April 18, 2000, to the Stockholders
Agreement dated April 1, 2000, among stockholders of The
Princeton Review, Inc. .....................................
10.4** Investor Rights Agreement, dated April 18, 2000, by and
among The Princeton Review, Inc., SG Capital Partners LLC,
Olympus Growth Fund III, L.P. and Olympus Executive Fund,
L.P. .......................................................
10.5** The Princeton Review, Inc. 2000 Stock Incentive Plan, March
2000. ......................................................
10.6** Form of Stock Option Agreement. ............................
10.7** Letter Agreement, dated August 17, 1999, by and between
Princeton Review Operations, LLC and The Chase Manhattan
Bank. ......................................................
10.7.1 Amendment to Letter Agreement, dated September 26, 2000, by
and between Princeton Review Operations, LLC and The Chase
Manhattan Bank. ............................................
10.8** Master Service Agreement, dated June 16, 1999, by and
between Frontier Global Center and The Princeton Review,
Inc. .......................................................
10.9** Addendum to Master Service Agreement, dated June 18,
1999. ......................................................
10.10** Software Purchase Agreement, dated as of June 23, 1998, by
and between Learning Company Properties and Princeton Review
Publishing, LLC. ...........................................
10.11** The Princeton Review Executive Compensation Policy
Statement. .................................................
10.12** Office Lease, dated as of April 23, 1992, as amended, by and
between The Princeton Review, Inc. and 2316 Broadway Realty
Co. ........................................................
10.13** Amendment to Office Lease, dated December 9, 1993. .........
10.14** Second Amendment to Office Lease, dated February 6, 1995....
10.15** dated April 2,
Third Amendment to Office Lease,EDGAR Online, Inc. 1996. ......
2002.
10.16** Fourth Amendment to Office Lease, dated July 10, 1998. .....
10.17** Employment Agreement, dated as of August 7, 2000, by and
between The Princeton Review, Inc. and John S. Katzman. ....
153
2002. EDGAR Online, Inc.
EXHIBIT
NUMBER DESCRIPTION
PAGE
------- -----------
----
10.19** Employment Agreement, dated as of April 1, 2000, by and
between The Princeton Review, Inc. and Stephen Melvin. .....
10.20** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Stephen
Quattrociocchi. ............................................
10.21** Employment Agreement, dated as of April 18, 2000, by and
between The Princeton Review, Inc. and Evan Schnittman. ....
10.22** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Linda
Nessim-Rubin. ..............................................
10.23** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Bruce Task. .........
10.24** Employment Agreement, dated as of April 10, 2000, by and
between The Princeton Review, Inc. and Steven Hodas. .......
10.25** Employment Agreement, dated as of April 28, 2000, by and
between The Princeton Review, Inc. and Peter Taylor. .......
10.26** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Mark Chernis. ...............
10.27** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Steven Hodas. ...............
10.28** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Richard Katzman. ............
10.29** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Stephen Melvin. .............
10.30** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Linda Nessim-Rubin. .........
10.31** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Stephen Quattrociocchi. .....
10.32** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Evan Schnittman. ............
10.33** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Peter Taylor. ...............
10.34** Conversion Agreement, dated April 18, 2000, by and between
The Princeton Review, Inc. and Bruce Task. .................
10.35** Office Lease, by and between The Rector, Church-Wardens and
Vestrymen of Trinity Church in the City of New York, as
Landlord, and Princeton Review Publishing, LLC, as
Tenant. ....................................................
10.36+ Agreement, dated September 1, 1998, by and between The
Educational and Professional Publishing Group, a unit of the
McGraw-Hill Companies, Inc., and Princeton Review
Publishing, LLC. ...........................................
10.37 Franchise Agreement, dated as of June 14, 1986, by and
between The Princeton Review Management Corp. and Robert
Cohen (Princeton Review of New Jersey).
10.38 Franchise Agreement, dated as of June 14, 1986, by and
between The Princeton Review Management Corp. and Matthew
Rosenthal (Princeton Review of Boston).
10.39 Franchise Agreement, dated as of July 1, 1986, by and
between The Princeton Review Management Corp. and Lloyd Eric
Cotsen (Lecomp Company, Inc.).
10.40 Franchise Agreement, dated as of September 13, 1986, by and
between The Princeton Review Management Corp. and Robert
Case, Richard McDugald and Kevin Campbell (Test Services,
Inc.).
10.41 Addendum to the Franchise Agreement, dated as of May 31,
1995, by and between The Princeton Review Management Corp.
and the persons and entities listed on the Franchisee
Joinders.
10.42 Formation Agreement, dated as of May 31, 1995, by and among
The Princeton Review Publishing Company, LLC., The Princeton
Princeton Inc.
Review Publishing Co., Inc., theEDGAR Online, Review Management
2002.
Corp. and the independent franchisees.
10.43 Distance Learning Waiver, dated as of May 30, 2000, by and
among Princeton Review Management, LLC and Princeton Review
154
EXHIBIT
NUMBER DESCRIPTION
PAGE
------- -----------
----
10.44 Distance Learning Waiver, dated as of June 21, 2000, by and
between Princeton Review Management, LLC and Lecomp, Inc.
10.45 Pledge and Security Agreement, dated as of September 19,
2000, by and between Steven Hodas and The Princeton Review,
Inc.
10.46 Promissory Note, dated as of September 19, 2000, made by
Steven Hodas in favor of The Princeton Review, Inc.
10.47 Commitment Letter, dated as of September 20, 2000, by and
between Excel Bank, N.A. and The Princeton Review, Inc.,
with respect to $4,500,000 line of credit.
10.48 Promissory Note, dated as of October 27, 2000, made by The
Princeton Review, Inc. in favor of Excel Bank, N.A., in the
principal amount of $4,500,000.
10.49 Security Agreement, dated as of October 27, 2000, executed
by The Princeton Review, Inc. for the benefit of Excel Bank,
N.A.
10.50 Form of Guaranty, dated as of October 27, 2000, made by each
of Princeton Review Management, L.L.C., Princeton Review
Products, L.L.C., Princeton Review Operations, L.L.C. and
Princeton Review Publishing, L.L.C., for the benefit of
Excel Bank, N.A.
10.51 Form of Subsidiary Security Agreement, dated as of October
27, 2000, made by each of Princeton Review Management,
L.L.C., Princeton Review Products, L.L.C., Princeton Review
Operations, L.L.C. and Princeton Review Publishing, L.L.C.,
for the benefit of Excel Bank, N.A.
16.1 Letter re: change in certifying accountant. ................
21.1** Subsidiaries of the Registrant. ............................
23.1* Consent of Patterson, Belknap, Webb & Tyler LLP (included in
Exhibit 5.1 hereto). .......................................
23.2 Consent of Deloitte & Touche LLP. ..........................
23.3 Consent of Ernst & Young LLP. ..............................
23.4 Consent of Caras & Shulman, PC. ............................
24.1** Powers of Attorney (included on the signature pages
hereto). ...................................................
27.1 Financial Data Schedule.....................................
27.2** Financial Data Schedule.....................................
* To be filed by amendment.
**Previously filed.
+ Confidential treatment requested.
1
Exhibit 2.4
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is made as of May 30, 2000 by and between PRINCETON REVIEW
OPERATIONS, L.L.C., a Delaware limited liability company ("TPR"), on the one hand, and PRINCETON REVIEW OF BOSTON,
INC., a Massachusetts corporation; and PRINCETON REVIEW OF NEW JERSEY, INC., a New Jersey corporation (collectively, the
2002. EDGAR Online, Inc.
"Sellers"), on the other.
Recitals
A. Each Seller is a party to one or more franchise agreements with TPR's affiliate, Princeton Review Management, L.L.C.
("Management"), for the operation of a THE PRINCETON REVIEW(R) test preparation business, as set forth in Schedule 1 to this
Agreement. Collectively, the franchise agreements (as amended by that certain Addendum dated May 31, 1995) listed in Schedule 1
are referred to in this Agreement as the "Franchise Agreements" and the businesses operated under them are referred to as the
"Franchised Businesses."
B. The Sellers and TPR desire to provide TPR the option to acquire the Franchised Businesses on the terms and conditions set forth in
this Agreement. Management has consented to the grant of the option and has waived the exercise of its right of first refusal under the
Franchise Agreements with respect to the transactions contemplated by this Agreement.
Agreement
NOW, THEREFORE, in consideration of their mutual undertakings hereunder, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Grant of Option. The Sellers irrevocably grant to TPR the option to enter into an Asset Purchase Agreement in the form of Exhibit
A to this Agreement (the "Purchase Agreement"), under which TPR or its designee shall acquire the Assets (as defined in the Purchase
Agreement) for the aggregate Purchase Price of $12,500,000 (the "Purchase Option").
2. Exercise of Option. The Purchase Option shall become effective (i.e., capable of being exercised) only if an initial public offering of
the common stock of TPR's affiliate, The Princeton Review, Inc. (the "Stock") takes place and the Stock becomes listed on the
NASDAQ national stock market or another national exchange for publicly-traded securities. TPR may exercise the Purchase Option by
giving written notice (the "Exercise Notice") to the Sellers at any time during the period commencing on the date when the Purchase
Option becomes effective and ending at 11:59 p.m. on December 31, 2000 (the "Option Term").
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3. Financial Statements.
3.1 Within thirty (30) days after the execution of this Agreement, the Sellers shall deliver to TPR: (i) audited balance sheets for each
Seller as of December 31, 1998 and December 31, 1999; and (ii) audited income statements for each Seller for the fiscal years ending
December 31, 1998 and December 31, 1999 (collectively, the "Audited Statements"). The audits of the Sellers' financial statements
shall be conducted by Caras and Shulman or another independent certified public accounting firm reasonably acceptable to TPR. The
Sellers shall furnish to TPR, at the time of delivery of the Audited Statements, a letter from the Sellers' accounting firm representing to
TPR that the accounting firm has in effect customary professional liability insurance in the event of any claim based on the firm's audit,
review, or any other services in connection with the financial statements of the Sellers.
3.2 Upon request by TPR, the Sellers shall furnish to TPR balance sheets as of March 31, 2000 and income statements for the three
months then ending. In addition, if TPR has not exercised the Purchase Option by June 30, 2000, the Sellers, at TPR's request, shall
furnish balance sheets and income statements for the quarter ending on that date. Further, if TPR has not exercised the Purchase
Option by September 30, 2000, the Sellers, at TPR's request, shall furnish balance sheets and income statements for the quarter ending
on that date. Each set of quarterly financial statements furnished under this section shall be in comparative format presenting
corresponding figures for the same period of the prior year, and shall be accompanied by a report from the Sellers' accounting firm on
the accountants' review of the quarterly statements.
3.3 The Sellers represent that the figure in the "Total" column for 1997, 1998 and 1999 on the "Revenues" and "EBITDA" lines of
Schedule 2 to this Agreement: (1) were calculated using financial statements that were prepared consistent with each Seller's regular
past accounting policies and practices; and (2) are not overstated by more than five percent (5%) of the Sellers' actual revenues and
actual EBITDA. The Sellers further represent that the figures in the "Total" columns for 1997, 1998 and 1999 on the "Sum of
EBITDA and Adjustments" line are not overstated by more than five percent (5%) of actual figures. (In any independent calculation of
the "Sum of EBITDA and Adjustments" line, TPR shall use the same line-item categories of adjustments shown on Schedule 2.) For
purposes of 1998 and 1999, "actual figures" means figures from or based on the Audited Statements. For purposes of this Section 3,
the term "overstated" includes understatement of losses. TPR shall have the right to terminate this Agreement under Section 12 if the
Audited Statements reveal that any of the figures from Schedule 2 identified above is overstated by more than 5%. Sellers shall have
the right to terminate this Agreement under
Section 12 if the Audited Statements reveal that the figures from Schedule 2 identified above, on average, are understated by more
than 5%.
2002. EDGAR Online, Inc.
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4. Purchase Agreement. If TPR exercises the Purchase Option, the acquisition of the Assets shall be consummated on the terms set
forth in the Purchase Agreement and its exhibits, with the schedules completed as appropriate. The Sellers and TPR or its designee
shall execute and deliver to each other counterparts of the Purchase Agreement within thirty (30) days after delivery of the Exercise
Notice. The Sellers shall cause Matthew Rosenthal and Rob Cohen to execute the Purchase Agreement, and Buyer shall cause
Management to execute the Purchase Agreement.
5. Closing. The Closing shall take place within ninety (90) days after delivery of the Exercise Notice to the Sellers. The Closing may
occur after December 31, 2000 provided that the Exercise Notice was timely delivered. For purposes of this Agreement and the
Purchase Agreement, "Closing Date" means the date on which the Closing is actually completed.
6. Method of Payment. The Purchase Price shall be paid as provided in the Purchase Agreement.
7. Covenants. The Sellers shall comply with the following covenants from the date of this Agreement until the end of the Option Term,
unless TPR exercises the Purchase Option, in which case the Sellers shall comply with the following covenants through the Closing
Date:
7.1 Liens. The Sellers shall keep the Assets free and clear of all liens, claims and encumbrances of any kind, other than the Purchase
Option.
7.2 Operation of the Business.
(a) The Sellers shall operate the Franchised Businesses and keep books and accounts, records and files in the usual and ordinary
manner in which the Franchised Businesses were conducted before the date of this Agreement. The Sellers shall operate the Franchised
Businesses in substantial compliance with the Franchise Agreements and all applicable laws, rules and regulations.
(b) Each Seller shall deliver to TPR the Audited Statements required under Section 3 above. The Audited Statements shall be prepared
in accordance with generally accepted accounting principles and shall present fairly the financial position of the Franchised Businesses
and the results of operations for the period indicated. The Sellers' obligation under this Section is in addition to financial reports
required by the Franchise Agreements.
(c) The Sellers shall use their best efforts to keep intact the business organization of the Franchised Businesses, to retain substantially
as at present the Franchised
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Businesses' employees, consultants and agents, and to preserve the goodwill of the Franchised Businesses' suppliers, advertisers,
customers, and others having business relations with the Sellers.
(d) The Sellers shall keep all tangible personal property included in the Assets in good operating condition and repair (ordinary wear
and tear excepted) and shall maintain supplies of inventory, office supplies, spare parts and other materials consistent with the Sellers'
general practice before the date of this Agreement. The Sellers shall preserve intact the Assets and maintain in effect their current
casualty and liability insurance on the Assets.
(e) The Sellers shall not sell, assign or transfer, or agree to sell, assign or transfer, voluntarily or by operation of law, the Franchised
Businesses, the Franchise Agreements, or any interest therein, except in full compliance with the applicable provisions of the Franchise
Agreements and only if the transferee acquires its interest subject to this Agreement and executes a written assumption, in a form
acceptable to TPR, under which the transferee agrees to be bound by this Agreement.
(f) The Sellers shall not, without TPR's prior written consent:
(i) sell, lease, or transfer, or agree to sell, lease or transfer, or grant an option to purchase or lease any Assets, except for non-material
sales or leases in the ordinary course of business of items which are being replaced by assets of comparable or superior kind, condition
and value;
(ii) except in the ordinary course of business consistent with past practices or as may be required by applicable law, grant any raises to
employees of the Franchised Businesses or pay or agree to pay any substantial bonuses, or enter into or renew any contract of
2002. EDGAR Online, Inc.
employment with any employee of the Franchised Businesses;
(iii) enter into, renew or amend any contract with respect to the Franchised Businesses except in the ordinary course of business; or
(iv) enter into any transaction (including any contract, agreement or arrangement with respect to the purchase, sale or exchange of
property or assets or the rendering or accepting of any service) with any affiliate of Seller, with any officer, manager, member, director
or shareholder of Seller or of any affiliate of Seller (or relative thereof), or with anyone else who is not dealing at arm's length with
Seller.
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7.3 Due Diligence.
(a) Subject to subsections (b), (c) and (d) below, at TPR's request and upon reasonable notice, the Sellers shall give TPR, TPR's
lender(s), the underwriters for the proposed public offering by The Princeton Review, Inc. (the "Underwriters"), and their respective
employees, accountants, counsel, agents, consultants and representatives full access during normal business hours to all facilities,
properties, accounts, books, insurance policies, licenses, agreements, contracts, commitments, records, files, equipment, machinery,
fixtures, furniture, notes and accounts payable and receivable of the Sellers with respect to the Franchised Businesses. The Sellers shall
furnish such other information concerning the affairs of the Franchised Businesses as TPR and its lender(s) may reasonably request.
Any due diligence investigation or examination by TPR and/or its lender(s) shall not diminish or obviate any representations or
warranties of the Sellers made in, or in connection with, this Agreement or the Purchase Agreement. The Sellers shall cause their
accountants and any agent of the Sellers in possession of the Sellers' books and records with respect to the Franchised Businesses to
cooperate with TPR's requests for information pursuant to this Agreement. The Sellers shall bear all costs of complying with
reasonable due diligence requests by TPR, TPR's lender(s), and the Underwriters.
(b) TPR shall make reasonable efforts to obtain desired information via TPR's wide-area network before seeking such information by
other means.
(c) Before delivery of the Exercise Notice, TPR shall not contact employees of the Sellers (other than Joel Rubin) with respect to any
matters related to the prospective purchase of the Franchised Businesses.
(d) If TPR exercises the Purchase Option, TPR shall use best efforts to submit all due diligence requests within forty-five (45) days
after delivery of the Exercise Notice, but TPR shall not be precluded from making reasonable requests thereafter.
7.4 Breach of Representations, Warranties and Covenants. The Sellers shall give detailed written notice to TPR promptly upon
learning of the occurrence of any event that would cause or constitute a material breach of any of the Sellers' representations,
warranties or covenants contained in this Agreement.
7.5 Notice of Proceedings. The Sellers will promptly notify TPR in writing upon: (a) becoming aware of any order or decree or any
complaint praying for an order or decree restraining or enjoining the consummation of the transactions contemplated hereunder; or (b)
receiving any notice from any governmental department, court, agency or commission of its intention (i) to institute an investigation
into, or institute a suit or proceeding to restrain or enjoin,
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the consummation of such transactions, or (ii) to nullify or render ineffective this Agreement or such transactions if consummated.
7.6 Confidentiality.
(a) TPR and the Sellers shall not use for any purpose other than the transactions contemplated by this Agreement or, except as
provided below, disclose to anyone not a party to this Agreement, any information regarding each other's business which TPR and the
Sellers may obtain or of which they may be apprised as a result of the negotiation, preparation or performance of this Agreement and
the Purchase Agreement. TPR and the Sellers may disclose such information to their respective employees, attorneys, accountants,
investment bankers, investors and lenders on a need-to-know basis for the purpose of consummating the transactions contemplated by
this Agreement and the Purchase Agreement, provided that each person to whom such information is disclosed is informed and agrees
that the disclosure is subject to the commitment of confidentiality in this section.
(b) The Sellers or TPR may disclose the existence of this Agreement to other franchisees of TPR. Neither the Sellers nor TPR shall
disclose any of the specific terms of this Agreement or of the Purchase Agreement to any non-party to this Agreement, except that the
2002. EDGAR Online, Inc.
Sellers may disclose the terms to their respective Stockholders, and TPR may disclose the terms to (i) TPR's affiliates and lenders, (ii)
the Underwriters, (iii) government agencies in an SEC Form S-1 registration statement and other filings required by the securities laws;
(iv) prospective investors in The Princeton Review, Inc., and (v) to the extent that TPR offers them similar agreements, to other
franchisees of TPR.
8. Representations and Warranties of the Sellers. Each Seller represents and warrants to TPR as follows:
8.1 Company Status. The Seller is duly formed, validly existing and in good standing under the laws of the state of its incorporation.
The Seller is duly qualified to do business and is in good standing in such states in which the failure to so qualify would have a
material adverse effect on any of the Franchised Businesses. Seller has the requisite power to carry on its Franchised Business as it is
now being conducted and to own and operate the Franchised Business, and Seller has the requisite power to enter into and complete
the transactions contemplated by this Agreement. Seller has not used any name in the operation of the Franchised Business other than
its name as first set forth above and the name(s) licensed under the Franchise Agreements.
8.2 Authority. All company actions necessary to be taken by or on the part of the Seller in connection with the transactions
contemplated by this Agreement have been duly and
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validly taken, and this Agreement has been duly and validly authorized, executed, and delivered by Seller and constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
8.3 No Conflict. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated
hereby will not
(a) conflict with or violate the Seller's governing documents; (b) conflict with or violate or result in any breach of or any default under,
result in any termination or modification of, or cause any acceleration of any obligation under, any contract to which Seller is a party
or by which it is bound, or by which the Franchised Businesses or any of the Assets may be affected, or result in the creation of any
lien upon any of the Assets; or (c) violate any judgment, decree, order, statute, law, rule or regulation applicable to Seller, the
Franchised Businesses, or any of the Assets.
8.4 No Breach. The Seller is not in violation or breach in any material respect of any of the terms, conditions or provisions of any
contract, court order, judgment, arbitration award, or decree relating to or affecting the Franchised Businesses or the Assets.
8.5 Purchase Agreement Representations. Subject to the disclosure schedules to be delivered by the Sellers within thirty (30) days after
the execution of this Agreement, the representations and warranties to be made by the Sellers and their stockholders in the Purchase
Agreement are true in all material respects as of the date of this Agreement. The parties acknowledge that if TPR exercises the
Purchase Option, such disclosure schedules may be updated to allow for changes in the ordinary course of business between their
initial delivery and the execution of the Purchase Agreement.
9. Representations and Warranties of TPR. TPR represents and warrants to the Sellers as follows:
9.1 Company Status. TPR is duly formed, validly existing and in good standing under the laws of the state of Delaware. TPR has the
requisite power to enter into and complete the transactions contemplated by this Agreement.
9.2 Authority. All company actions necessary to be taken by or on the part of the TPR in connection with the transactions
contemplated by this Agreement have been duly and validly taken, and this Agreement has been duly and validly authorized, executed,
and delivered by TPR and constitutes the legal, valid and binding obligation of TPR, enforceable against TPR in accordance with its
terms.
9.3 No Conflict. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated
hereby will not
(a) conflict with or violate TPR's
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governing documents; (b) conflict with or violate or result in any breach of or any default under, result in any termination or
modification of, or cause any acceleration of any obligation under, any contract to which TPR is a party or by which it is bound; or (c)
violate any judgment, decree, order, statute, law, rule or regulation applicable to TPR.
2002. EDGAR Online, Inc.
9.4 Purchase Agreement Representations. The representations and warranties to be made by TPR in the Purchase Agreement are true
in all material respects as of the date of this Agreement.
10. Further Assurances. Until the end of the Option Term (or until the Closing Date, if TPR exercises the Purchase Option), the Sellers
and TPR will each, without payment of any consideration, execute such instruments and take such actions as the other party may
reasonably request to effectuate this Agreement. Without limiting the generality of the foregoing, if TPR exercises the Purchase
Option, TPR may file (and if requested the Sellers shall execute) UCC-1 forms in such jurisdictions as TPR deems appropriate to give
notice that the Assets are subject to this Agreement. The parties shall cooperate fully with each other and with their respective counsel
and accountants in connection with any steps required to be taken as part of their respective obligations under this Agreement.
11. Remedies. If any Seller breaches or threatens to breach any obligation, representation, warranty, or covenant under this Agreement,
TPR shall be entitled, in addition to any other remedy available to it, to an injunction restraining any such breach or threatened breach
and to enforcement of this Agreement by a decree of specific performance requiring the Seller to fulfill its obligations under this
Agreement, in each case without the necessity of showing economic loss or other actual damage and without any bond or other
security being required.
12. Termination. TPR shall have the right to terminate this Agreement by written notice to the Sellers at any time prior to delivery of
the Exercise Notice: (i) as provided in Section 3.3; or (ii) if counsel for the Underwriters or the initial public offering counsel for The
Princeton Review, Inc. determines that this Agreement interferes with or may interfere with the registration of, or the public offering
of, the stock of The Princeton Review, Inc. Sellers shall have the right, as provided in Section 3.3, to terminate this Agreement by
written notice to TPR at any time prior to delivery of the Exercise Notice. Except as provided in Section 13, termination by TPR or the
Sellers shall be without liability to TPR and the Sellers, and upon delivery of the notice of termination, all obligations of the parties
under this Agreement shall be null and void.
13. Expense Reimbursement. If, but only if, TPR either does not exercise the Purchase Option by the end of the Option Term or TPR
terminates this Agreement under clause (ii) of Section 12, TPR shall (a) pay the Sellers a cancellation fee of $80,000, and (b) shall
reimburse
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the Sellers for their reasonable out-of-pocket expenses (including reasonable legal and accounting fees and travel expenses, but
excluding costs related to due diligence, as provided in Section 7.3(a)) incurred in connection with the negotiation and performance of
this Agreement through the end of the Option Term, but such reimbursement shall not exceed $100,000 and shall be subject to
presentation by the Sellers of suitable documentation to verify the expenses for which reimbursement is sought.
14. Assignment. No Seller may assign or delegate any of its rights or duties under this Agreement. TPR may assign its rights under this
Agreement and the Purchase Agreement to one or more affiliated parties without the consent of any Seller, provided that the
assignment does not materially increase the Sellers' risk of nonperformance of the Purchase Agreement and the documents to be
executed thereunder. This Agreement shall be binding upon and inure to the benefit of the Sellers and TPR and their respective
successors and permitted assigns.
15. Restriction on Other Acquisitions.
15.1 For one (1) year from the date of this Agreement (unless specifically relieved from the operation of this provision as provided
below or elsewhere in this Agreement or in the Purchase Agreement), TPR shall not close on the acquisition of a Major Franchisee (as
defined below) unless TPR has consummated the acquisition of the Franchised Businesses. This provision does not restrict TPR during
such one-year period from entering into option agreements or other arrangements with respect to the acquisition of a Major Franchisee
or its business. For purposes of this provision, "Major Franchisee" means an entity holding the The Princeton Review(R) franchise for
Los Angeles, California; Denver, Colorado; Westport, Connecticut; or the state of Texas.
15.2 TPR shall be relieved from the restriction in subsection 15.1 in the following circumstances (in addition to any other
circumstances specified in the Purchase Agreement):
(a) If the Option Term expires and TPR has not exercised the Purchase Option, but TPR thereafter offers to purchase the Franchised
Businesses on the same terms set forth in this Agreement and the Purchase Agreement and the Sellers fail to accept the offer within ten
(10) business days. If TPR makes such an offer, then wherever this Agreement and the Purchase Agreement relate time periods to the
delivery of the Exercise Notice, the date of the offer shall be substituted for the date of delivery of the Exercise Notice.
(b) If TPR discovers, through due diligence or otherwise, that any of the representations by the Sellers with respect to Schedule 2, as
2002. EDGAR Online, Inc.
specified in Section 3.3 of this Agreement, is untrue.
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(c) If the Sellers terminate this Agreement as provided in Section 3.3.
(d) If either party terminates the Purchase Agreement under Section 4.2.2 of that agreement.
(e) If TPR exercises the Purchase Option but TPR subsequently discovers, through due diligence or otherwise, that the Sellers have
made any material misrepresentation or engaged in other wrongful conduct that excuses TPR from closing the acquisition of the
Franchised Businesses.
(f) If the Sellers commit a material breach of this Agreement or the Purchase Agreement that permits termination by TPR under the
terms of this Agreement and the Purchase Agreement or under general principles of contract law.
(g) If TPR is acquiring a Major Franchisee pursuant to the exercise of TPR's right of first refusal under its franchise agreement with the
Major Franchisee.
16. Notices. All notices pursuant to this Agreement shall be in writing and shall be deemed given when delivered by hand, by
overnight courier, or by facsimile transmission, or on the third day after mailing if mailed by express mail or its equivalent, postage
prepaid, return-receipt requested, if available, as follows:
(a) To the Sellers: Mr. Rob Cohen
Princeton Review of New Jersey,
Inc.
252 Nassau Street
Princeton, New Jersey 08542
with a copy to: Greg White
Chappell White LLP
268 Summer Street
Boston, Massachusetts 02110
(b) To TPR: Mr. Mark Chernis
Princeton Review Management, L.L.C.
2315 Broadway
New York, New York 10024
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with a copy to: David W. Koch
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C.
20006
or to such other address as any party shall have designated by a notice in writing so delivered to the other parties. Notices directed to
the Sellers as indicated above shall be effective as to all of the Sellers and their respective stockholders, whether or not they receive
notice individually. Notices to counsel unaccompanied by notices to principals shall not constitute notice.
17. Entire Agreement. This Agreement and its Schedules and Exhibit constitute the entire agreement of the parties with respect to the
subject matter hereof, and supersede all prior negotiations, correspondence, representations, and agreements of the parties, oral and
written, with respect to same subject matter. This Agreement may be amended or modified only by an agreement in writing executed
by the Sellers and TPR.
2002. EDGAR Online, Inc.
18. Survival. All representations, warranties, covenants and agreements made herein or in any certificate to be delivered hereunder or
made in writing in connection with the transactions contemplated herein shall survive the execution and delivery of this Agreement and
the exercise of the Purchase Option (but not termination of this Agreement by TPR under Section 12), and shall survive the Closing to
the extent provided in the Purchase Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York, without giving
effect to New York principles of conflicts of laws.
IN WITNESS WHEREOF, each Seller and TPR have executed this Agreement by their duly-authorized representatives, effective as of
the date first above written.
PRINCETON REVIEW OF BOSTON, INC.
By: /s/ Robert Cohen
-----------------------------
Its: VP
-----------------------------
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PRINCETON REVIEW OF NEW JERSEY, INC.
By: /s/ Robert Cohen
-----------------------------
Its: President
-----------------------------
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PRINCETON REVIEW OPERATIONS, L.L.C.
By: /s/ Mark Chernis
-----------------------------
Mark Chernis
Chief Operating Officer
2002. EDGAR Online, Inc.
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SCHEDULE 1
TO OPTION AGREEMENT
Management and the Sellers are parties to the following The Princeton Review(R) Franchise Agreements:
Date(s) of
Franchise
Franchisee Agreement(s) Defined Territory Office Address
PRINCETON REVIEW OF BOSTON, INC. June 1, 1986 Counties of Essex, 57 Union Street
Middlesex, Norfolk, Suffolk, Suite 1
Plymouth, Bristol, Newton, MA 02159
Worcester, Dukes, Nantucket,
and Barnstable
(Massachusetts)
April 24, 1995 Counties of Addison, 57 Union Street
Bennington, Caledonia, Suite 1
Chittendon, Franklin, Newton, MA 02159
Washington, Windham, and
Windsor
(Vermont)
June 6, 1986 State of New Hampshire and 57 Union Street
State of Maine Suite 1
Newton, MA 02159
PRINCETON REVIEW OF NEW JERSEY, INC. June 1, 1986 Counties of Mercer, Ocean, 252 Nassau Street
Monmouth, Middlesex, Princeton, NJ 08542
Somerset, Union, Essex,
Morris, Hudson, Bergen,
Passaic, and Hunterdon
(New Jersey)
15
SCHEDULE 2
TO OPTION AGREEMENT
1997 1998
NJ Boston TOTAL NJ Boston TOTAL
REVENUES 5,558,491 2,738,641 8,297,132 6,016,148 3,026,550 9,042,698
Income before income tax expense 551,654 279,583 831,237 541,730 494,032 1,035,762
Depreciation and Amortization 36,982 28,799 65,781 44,386 29,196 73,582
EBITDA 588,636 308,382 897,018 586,116 523,228 1,109,344
Executive Salary 917,225 44,200 961,425 970,000 74,000 1,044,000
Medicare Taxes on Executive 13,300 641 13,941 14,065 1,073 15,138
Salary
Profit Sharing 31,426 7,664 39,090 31,088 8,388 39,476
Joel's Stock 13,200 13,200 18,880 18,880
Tax adjustment 0 61,970 61,970
C-Expenses 13,160 17,405 30,565 9,960 19,107 29,067
TPR Pub add back 67,623 34,868 102,491 -51,189 -26,393 -77,582
SUM OF EBITDA AND ADJUSTMENTS 1,644,570 413,160 2,057,730 1,640,890 599,403 2,240,293
SCHEDULE 2
TO OPTION AGREEMENT
2002. EDGAR Online, Inc.
1999
NJ Boston
TOTAL
REVENUES 6,882,041 3,518,708
10,400,749
Income before income tax expense 934,846 702,828
1,637,674
Depreciation and Amortization 35,361 27,412
62,773
EBITDA 970,207 730,240
1,700,447
Executive Salary 862,400 65,242
927,642
Medicare Taxes on Executive 12,505 946
13,451
Salary
Profit Sharing 39,988 10,560
50,548
Joel's Stock 26,800
26,800
Tax adjustment
0
C-Expenses 6,439 20,681
27,120
TPR Pub add back
0
SUM OF EBITDA AND ADJUSTMENTS 1,918,339 827,669
2,746,008
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Revenues, Income before income tax expense and Depreciation and Amortization are off 1999, 1998 and 1997 financial statements.
1997 Boston reflects a consolidation of TPR Boston and TPR NH/Maine.
Executive Salary -- Salary amounts paid to Matt and Rob
Profit Sharing -- Profit Sharing (401k) contributions
Joel's Stock -- Non-cash expense associated with transfer of TPR NJ stock to Joel.
Tax adjustment -- One time charge related to settlement of NJ sales tax audit for period 1995-1998
C-Expense -- Expenses related to meals, auto, and computer equipment taken by Matt and Rob
TPR Pub add back -- Non-cash expense related to ownership of TPR Pub stock
Note 1: Boston's 1997 TPR PUB ADD BACK includes the sum of amounts from TPR Boston and TPR NH/Maine.
Note 2: There are other perqs taken by Matt and Rob that are not
reflected above. They include cell phones, and professional memberships totaling about $10,000 per year
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Note 3: EBITDA and Revenues above includes interest income. Our
accountants believe that since the interest is earned by way of cash management of operational revenues and not off cash reserves it is
appropriately included in EBITDA. For full disclosure
2002. EDGAR Online, Inc.
1997 1998 1999
NJ Boston TOTAL NJ Boston TOTAL NJ Boston TOTAL
Interest Income 25,124 7,314 32,438 22,227 9,889 32,116 34,834 21,158 55,992
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ASSET PURCHASE AGREEMENT
between
PRINCETON REVIEW OF BOSTON, INC. and
PRINCETON REVIEW OF NEW JERSEY, INC.
(the "Sellers") and ROBERT L. COHEN and
MATTHEW ROSENTHAL
(the "Stockholders"),
on the one hand
and
PRINCETON REVIEW OPERATIONS, L.L.C. ("Buyer") and PRINCETON REVIEW MANAGEMENT, L.L.C. ("Franchisor"),
on the other
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TABLE OF CONTENTS
2002. EDGAR Online, Inc.
Page
1. Definitions.................................................................... 1
2. Sale and Transfer of Assets.................................................... 3
3. Assumed Obligations; No Other Assumption of Liabilities or Obligations......... 3
4. Payment of Purchase Price...................................................... 4
5. Closing Adjustments............................................................ 5
6. Allocation of Purchase Price................................................... 10
7. Closing Deliveries............................................................. 10
8. Representations and Warranties of the Sellers and the Stockholders............. 11
9. Representations and Warranties of Buyer........................................ 15
10. Obligations Pending the Closing................................................ 16
11. [Omitted]...................................................................... 16
12. Restrictions on Competition, Solicitation, and Hiring.......................... 16
13. Indemnification................................................................ 17
14. Assignment of Franchise Agreements............................................. 18
15. Post-Closing Obligations of the Sellers and the Stockholders................... 18
16. Post-Closing Obligations of Buyer.............................................. 19
17. Notices........................................................................ 20
18. Entire Agreement............................................................... 21
19. Counterparts................................................................... 21
20. Governing Law.................................................................. 21
21. Costs and Expenses............................................................. 21
22. Survival of Representations.................................................... 21
23. Arbitration.................................................................... 21
-i-
20
24. Prevailing Party Fees and Costs................................................ 22
SCHEDULES
2002. EDGAR Online, Inc.
Schedule 1.2 Valuation of Assets
Schedule 1.2.2 Leases
Schedule 1.2.9 Assumed Contracts
Schedule 6 Allocation of Purchase
Price
Schedule 8.2 Stockholders of the Sellers
Schedule 8.17 Employees of the Sellers
Schedule 8.18 Employee Benefit Plans
EXHIBITS
Exhibit A Form of Lease Assignment
Exhibit B Subordinated Promissory
Note
Exhibit C Guaranty
Exhibit D Bill of Sale
Exhibit E Sellers' Certificate
Exhibit F Assignment and Assumption
of
Certain Agreements
Exhibit G Mutual Release
-ii-
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into by and between PRINCETON REVIEW
OPERATIONS, L.L.C., a Delaware limited liability company ("Buyer"), and PRINCETON REVIEW MANAGEMENT, L.L.C., a
Delaware limited liability company ("Franchisor"), on the one hand, and the following entities (collectively, the "Sellers") and
individuals (collectively, the "Stockholders"), on the other:
PRINCETON REVIEW OF BOSTON, INC., a Massachusetts corporation;
PRINCETON REVIEW OF NEW JERSEY, INC., a New Jersey corporation;
ROBERT L. COHEN; and
MATTHEW ROSENTHAL.
RECITALS
A. The Sellers and Buyer are parties to an Option Agreement dated May 30, 2000 (the "Option Agreement"), under which Buyer was
granted the right to acquire certain assets from each Seller. Buyer exercised the Purchase Option by written notice to the Sellers dated
2002. EDGAR Online, Inc.
________________.
B. In accordance with the terms of the Option Agreement, and in order to consummate the transactions contemplated thereunder, the
Sellers, the Stockholders, Buyer, and Franchisor are entering into this Agreement.
NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants hereinafter set forth, the parties agree as follows:
1. Definitions.
1.1 Capitalized terms used but not defined in this Agreement shall have the same meaning as in the Option Agreement.
1.2 As used in this Agreement, "Assets" shall mean all of the rights and assets of the Sellers, whether real, personal, tangible, or
intangible, which are used or usable in, or relate to, the ownership or operation of the Franchised Businesses (other than the Excluded
Assets, as defined in Section 1.3 below), without regard to whether reflected on the Sellers' financial statements or books, including
but not limited to the following:
1.2.1 All leasehold improvements, furnishings, fixtures, equipment, signs, and other personal property used in the Franchised
Businesses, except as specifically excluded by agreement of the parties;
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1.2.2 Subject to Section 7.8 below, the rights of the Sellers under the leases of real property listed in Schedule 1.2.2 to this Agreement
(the "Leases");
1.2.3 As provided in Section 5.8 below, and subject to the Closing adjustments provided therein, course materials, promotional
materials, books, manuals, workbooks, practice tests, diagnostic tests, and other inventory and supplies on hand in or en route to the
Franchised Businesses as of the Closing Date;
1.2.4 All deposits received by the Sellers and all accounts receivable for course purchases, tutoring service packages, and any other
products or services of the Franchised Businesses that have not yet started as of the Closing Date, provided that, the Sellers shall
receive credit as provided in Section 5.8.2 for "basket of goods" items delivered to students who have paid deposits for course
purchases (not tutoring packages) that have not yet started as of the Closing Date;
1.2.5 The right to a portion of Total Course Revenues and Tutoring Revenues, as defined in and calculated under Sections 5.2 and 5.3
below;
1.2.6 The Sellers' rights in and to all telephone numbers, telephone directory advertising, web sites, domain names, and (subject to
Section 16.3 below) e-mail addresses for the Franchised Businesses;
1.2.7 All franchise rights, patents, copyrights, trade secrets, and intellectual property rights of the Sellers associated with the
Franchised Businesses;
1.2.8 All goodwill of the Sellers associated with the
Franchised Businesses;
1.2.9 The rights of the Sellers under the written
contracts
specifically identified in Schedule 1.2.9 (the "Assumed Contracts") and under any assignable permits and business licenses relating to
the ownership and operation of the Franchised Businesses;
1.2.10 Certain benefits, as specified in Section 15.8 below, in respect of Princeton Review of Boston, Inc.'s I-17 authorization by the
U.S. Immigration and Naturalization Service to enroll non-immigrant aliens in The Princeton Review(R) courses; and
1.2.11 All papers and records (excluding the Sellers' minute books and books of account) pertaining to and necessary for the continued
operation of the Franchised Businesses, including but not limited to student information, prospect information, and the personnel
records (including payroll records) concerning each employee of the Sellers who will become employed by Buyer after the Closing.
1.3 The Assets do not include any of the following items (the "Excluded Assets"):
2002. EDGAR Online, Inc.
1.3.1 Except as provided in Sections 1.2.4 and 1.2.5 above, any cash, cash equivalents, receivables, or bank accounts of the Sellers;
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1.3.2 Security deposits of the Sellers related to the Franchised Businesses, provided that, as a convenience to the parties, the Sellers
shall leave in place their security deposits with respect to the Leases and Buyer shall reimburse the Sellers for such amounts at Closing
as provided in
Section 4.1 below;
1.3.3 Life insurance policies on the life of any Stockholder and/or other officers and directors of the Sellers;
1.3.4 Motor vehicles and cellular telephones owned or
leased by the Sellers;
1.3.5 The equity interest of the Sellers in The
Princeton
Review, Inc. (the "Stock"). Buyer and its affiliates shall furnish the Sellers with such waivers as may be necessary to waive the
operation of any pre-existing contractual provision that would require the Sellers or the Stockholders to sell the Stock concurrently
with the sale of the Franchised Businesses and/or termination of the Franchise Agreements.
2. Sale and Transfer of Assets. The Sellers agree to sell, convey and deliver the Assets to Buyer at the Closing (as defined in Section 7
below), free and clear of all liens, security interests, pledges, and encumbrances.
3. Assumed Obligations; No Other Assumption of Liabilities or Obligations.
3.1 Effective as of the Closing Date, and subject to the allocations described in Sections 5.2 and 5.3 below, Buyer shall assume
responsibility for, and the cost to fulfill, all course and tutoring service sign-ups by students, schools, and corporations to be serviced
by the Franchised Businesses on or after the Closing Date, including "refresher" courses for students who completed courses prior to
the Closing Date.
3.2 Subject to Section 7.8 below, effective as of the Closing Date, Buyer shall assume responsibility for, and the cost to fulfill, the
Sellers' obligations from the Closing Date forward under the Leases. Before the Closing, the Sellers shall present to the lessor under
each Lease a proposed lease assignment in the form of Exhibit A to this Agreement (the "Lease Assignment"). Buyer shall furnish to
the lessors such financial and other information as is customary for similar lease transactions, and shall otherwise cooperate with the
Sellers' efforts to obtain the lessors' consent to assignment of the Leases. If the entity that will assume the Sellers' obligations under the
Leases is not Buyer or a successor owner of the TPR Business (as defined in
Section 4.2.1 below), and if necessary to obtain the lessor's consent to the assignment of a Lease or the release of a Stockholder's
obligations under a guarantee of a Lease, Buyer (or the affiliate of Buyer that then owns the TPR Business) shall offer a guaranty of
the lessee's financial obligations under the Lease. Except as specifically provided in the preceding sentence, Buyer shall have no
obligation to take any action designed to obtain the release of any person or entity from any guarantee of the Sellers' obligations under
the Leases.
3.3 Effective as of the Closing Date, Buyer shall assume responsibility for, and the cost to fulfill, the obligations of the Sellers from the
Closing Date forward under the Assumed Contracts.
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3.4 Except as specifically provided in Sections 3.1, 3.2 and 3.3 above, Buyer has not assumed, and shall not assume, any liability or
obligation of any nature, whether known or unknown, existing or contingent, of the Sellers or Stockholders, including but not limited
to any accounts payable incurred by the Sellers or Stockholders in the conduct of the Franchised Businesses. Buyer assumes no
liability in connection with any actual or alleged breach or default by the Sellers or Stockholders occurring at any time before the
Closing Date with respect to the Leases, the Assumed Contracts, or any other matters referred to in Sections 3.1, 3.2 and 3.3.
4. Payment of Purchase Price.
2002. EDGAR Online, Inc.
4.1 The Purchase Price for the Assets and for the covenants not to compete in Section 12 below, as determined pursuant to Section 3
of the Option Agreement, is Twelve Million Five Hundred Thousand Dollars ($12,500,000), subject to any Purchase Price adjustments
that may be provided for in this Agreement. Subject to the terms of the Option Agreement, Buyer shall pay the following amounts on
the Closing Date:
4.1.1 To the Sellers, an amount equal to seventy-five percent (75%) of the Purchase Price (i) minus the amounts paid to the
Stockholders under Sections 4.1.2 and 4.1.3 below; (ii) minus the aggregate amount of the student deposits referred to in Section 1.2.4;
(iii) plus the aggregate amount of the Lease deposits to be reimbursed by Buyer under Section
1.3.2; (iv) plus or minus the net amount of the Closing adjustments between the Sellers and Buyer pursuant to Section 5.1, to the extent
determined by the parties as of Closing;
4.1.2 To Rob Cohen, in consideration of his obligations under Section 12 below, the sum of Four Hundred Fifty Thousand Dollars
($450,000); and
4.1.3 To Matthew Rosenthal, in consideration of his obligations under Section 12 below, the sum of Four Hundred Fifty Thousand
Dollars ($450,000).
The net amount due to the Sellers under Section 4.1.1, and the amounts due to the Stockholders under Sections 4.1.2 and 4.1.3, shall
be paid by wire transfer to one or more bank accounts designated by the Sellers and the Stockholders, respectively, on the Closing
Date if possible but otherwise on the next business day after the Closing Date.
4.2 At the Closing, Buyer shall execute and deliver to the Sellers a promissory note in the form of Exhibit B to this Agreement (the
"Note"). The original principal amount of the Note will be twenty-five percent (25%) of the Purchase Price.
4.2.1 If Buyer at any time (whether before or after the Closing) reorganizes its corporate structure, transfers or sells the assets
associated with the TPR Business (as defined below), or creates or acquires wholly-owned subsidiaries to operate all or a portion of
the TPR Business, Buyer shall cause the successor to Buyer's interest in the TPR Business to assume the Note or to execute a guaranty
of the Note in the form of Exhibit C to this Agreement (the "Guaranty"). If any such change occurs before the Closing, Buyer shall
furnish the Guaranty (or the successor shall execute the Note) at Closing. If the TPR Business is divided among multiple entities, each
of them shall be deemed a successor for purposes of this provision and shall execute the Guaranty (or assume the Note). The Sellers
agree that, if requested by the successor,
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the Guaranty shall include subordination provisions substantially similar to those contained in the Note. For purposes of this Section,
"TPR Business" means the set of business activities that Franchisor authorizes its franchisees to conduct under the TPR Method, as
that term is defined in the Franchise Agreements and further defined in the Addendum to Franchise Agreement dated May 31, 1995.
The Sellers and Buyer agree that "TPR Business" shall not include any interactive teaching system not requiring the attendance of
students at any fixed premises ("Distance Learning"). If any entity that becomes a guarantor under this Section (a "Guarantor")
reorganizes its corporate structure, transfers or sells the assets associated with the TPR Business, or creates or acquires wholly-owned
subsidiaries to operate all or a portion of the TPR Business, Buyer and the Guarantor shall cause the successor to the Guarantor's
interest in the TPR Business to execute the Guaranty or to assume the Note.
4.2.2 The Sellers and Buyer each acknowledge that the other has negotiated the proposed terms of subordination of the Note and
Guaranty in good faith, and they agree to continue to act in good faith with respect to any further negotiations of the subordination
provisions with Buyer's and/or a Guarantor's senior lender(s). However, before the Closing, if the Sellers and Buyer are unable to
reach agreement on the terms and conditions relating to the subordination of the Note and Guaranty to the rights of the senior lenders,
the Sellers or Buyer may terminate this Agreement by giving written notice to the other, and such termination will be without liability
of or recourse to any party.
4.2.3 The Sellers shall have a one-time right to convert the principal due under the Note to additional Stock, as provided in the Note.
5. Closing Adjustments.
5.1 Calculation and Payment. Except as otherwise specified in Sections 5.2 through 5.9 below, all amounts owed between the Sellers
and Buyer and its affiliates under Sections 5.2 through 5.9 shall, to the extent feasible, be calculated and paid on or before the Closing
Date (with respect to amounts owed between the Sellers and Buyer only, such amounts shall be paid by adding appropriate amounts to
or subtracting them from the Closing Date payment under
Section 4.1). Except as otherwise specified, to the extent not calculated and paid at Closing, amounts owed between the Sellers and
2002. EDGAR Online, Inc.
Buyer and its affiliates under Sections 5.2 through 5.9 shall be presented at the end of each month to the party from which payment is
sought and, unless disputed in good faith, paid by such party within thirty (30) days after presentment. The parties hereby confirm their
intention to avoid double-counting with respect to calculations under this Agreement and agree to adjust any overpayment or
underpayment shown to result from such double-counting.
5.2 Courses In Progress. The Sellers and/or Buyer, as applicable, shall make the following calculations in respect of the obligations
incurred by students who are enrolled in courses that are in progress as of the Closing Date ("Courses In Progress"):
5.2.1 At the Closing, the Sellers and Buyer shall calculate the total course revenues attributable to Courses In Progress ("Total Course
Revenues"). Total Course Revenues shall include all payments collected by the Sellers before the Closing with respect to Courses In
Progress, plus all remaining amounts due from students for Courses In Progress. The Sellers and
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Buyer shall allocate the Total Course Revenues in accordance with Franchisor's Statement of Inter-Franchise Transfer Policy (the
"Transfer Policy"), as if the students enrolled in Courses In Progress were "transfer students" under the Transfer Policy. If the
payments collected by the Sellers before the Closing exceed the amount allocated to the Sellers under the Transfer Policy, the amount
of the excess shall be deducted from the Closing Date payment under Section 4.1. If the payments collected by the Sellers before the
Closing are less than the amount allocated to the Sellers under the Transfer Policy, Buyer shall pay the amount of the shortfall to the
Sellers after the Closing as course revenues are collected from students.
5.2.2 On [DATE SIX MONTHS FROM CLOSING DATE], the Sellers shall pay to Buyer the amount by which the then-uncollected
amounts due from students for Courses In Progress exceed two percent (2%) of the Total Course Revenues calculated by the Sellers
and Buyer at Closing under Section 5.2.1. Buyer shall use commercially reasonable efforts after the Closing to attempt to collect all
course revenues. The Stockholders shall assist Buyer in such collection efforts, provided that, after [DATE SIX MONTHS FROM
THE CLOSING DATE], the Sellers and the Stockholders shall not contact students without prior authorization by Buyer, which shall
not be unreasonably withheld.
5.3 Tutoring Services. At the Closing, the Sellers and Buyer shall calculate the total revenue attributable to each student who
contracted with the Sellers for a specified quantity of tutoring services before the Closing Date but who has unused tutoring hours as of
the Closing Date ("Tutoring Revenue"). Tutoring Revenue shall include all payments collected by the Sellers from the student before
the Closing, plus all remaining amounts due from the student. The Sellers and Buyer shall allocate the Tutoring Revenue from each
tutoring student as follows: (i) If the student has used any portion of the contracted tutoring hours before the Closing, the up-front
materials fee from the student shall be allocated to the Sellers. If the student has not used any portion of the contracted tutoring hours
before the Closing, one-half of the up-front materials fee shall be allocated to the Sellers and one-half shall be allocated to Buyer.
(ii) The Tutoring Revenue remaining after allocation of the up-front materials fee (the "Remaining Revenue") shall be divided between
the Sellers and Buyer as follows: The Sellers and Buyer shall determine whether the date of the test for which the student was
preparing has passed as of the Closing. If the date of the test has passed, the student will be deemed to have ended his or her tutoring
package and the Remaining Revenue shall be allocated to the Sellers. If the date of the test has not passed as of the Closing, the Sellers
and Buyer shall calculate the ratio of the student's unused tutoring hours to the total hours contracted for by the student. That ratio shall
be multiplied by the Remaining Revenue, and the resulting amount shall be allocated to Buyer. If the payments collected by the Sellers
before the Closing exceed the amount allocated to the Sellers under this Section 5.3, the amount of the excess shall be deducted from
the Closing Date payment under Section 4.1. If the payments collected by the Sellers before the Closing are less than the amount
allocated to the Sellers under this Section 5.3, Buyer shall pay the amount of the shortfall to the Sellers after the Closing as revenue is
collected from the tutoring student.
5.4 Employee Expenses. Buyer will offer to hire the Employees of the Sellers listed in Schedule 8.17 whom Buyer deems to meet
Buyer's ordinary pre-employment and post-employment standards and conditions. Buyer shall have no obligation to offer employment
to any specific individual listed in Schedule
8.17 who does not meet Buyer's ordinary standards and
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conditions. Buyer will credit each Employee hired by Buyer with such vacation time and sick leave as have accrued during such
person's employment by the Sellers and remain unused as of the Closing Date, or, at Buyer's option, Buyer will pay such Employee for
any accrued vacation time or sick leave. In addition, Buyer will credit each Employee hired by Buyer with such Employee's
time-in-service to the Sellers for purposes of calculating any bonuses for which such Employee may be eligible. The Sellers and Buyer
shall make the following payments to each other in respect of Employees hired by Buyer:
2002. EDGAR Online, Inc.
5.4.1 Vacation and Sick Leave. The Sellers shall reimburse Buyer for the dollar value of all vacation time and sick leave credited and
paid to Employees by Buyer as provided above. The Sellers may deduct from such reimbursement the dollar value of any vacation
time taken by an Employee before the Closing Date in excess of the actual vacation time accrued by such Employee before the Closing
Date.
5.4.2 Bonuses. With respect to work performed before the Closing, Buyer shall calculate and pay bonuses to Employees hired by
Buyer in accordance with the bonus plans created by the Sellers for such Employees. Any bonuses paid by Buyer to Employees which
relate to periods both before and after the Closing Date shall be prorated as of the Closing Date based on the number of months that
the Employee was employed by the Sellers and by Buyer, respectively, during the period to which the bonus relates. Within thirty (30)
days after payment of the bonus to the Employee, the Sellers shall pay Buyer an amount equal to the pre-Closing portion of the bonus,
as determined according to this Section. Buyer shall have no obligation to pay any Employee any amount that is in excess of Sellers'
bonus plans as disclosed to Buyer. If Buyer voluntarily elects to pay a bonus in excess of the Sellers' disclosed bonus plans, the Sellers'
obligation to reimburse Buyer for the pre-Closing portion of the bonus shall be limited to the bonus calculated in accordance with the
Sellers' disclosed bonus plans. Nothing in this Section is intended or shall be deemed to create any third party beneficiary rights in any
Employee.
5.5 Purchased Materials. The Sellers and Princeton Review Products, L.L.C. ("Products") shall make good faith efforts to resolve any
disputed amounts invoiced to the Sellers by Products or its predecessor for course materials, products, supplies, or other goods and
services, as follows:
5.5.1 At least thirty (30) days before the Closing, Products shall deliver to the Sellers a statement of all amounts outstanding that are
more than ninety (90) days old. Within thirty (30) days after the Closing, Products shall deliver to the Sellers a final statement of all
amounts outstanding. The Sellers shall have no liability for any amounts claimed by Products that do not appear on at least one of the
statements delivered under this provision.
5.5.2 The Sellers shall present to Products in writing at or before the Closing all amounts disputed by the Sellers (except new items
appearing on the final statement delivered by Products after the Closing). Any amounts resolved between the Sellers and Products as
of the Closing shall be paid at Closing, as provided in Section 5.1. Any amounts that remain in dispute as of six months after the
Closing and for which the Sellers have not served a formal demand for arbitration under Section 23 shall be immediately paid to
Buyer.
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5.6 Rent. All rent paid by the Sellers and Buyer under Leases assigned pursuant to Section 7.8 shall, if the rent relates to periods both
before and after the Closing Date, be prorated as of the Closing Date, with the Sellers responsible for the portion which accrued prior
to the Closing Date and Buyer responsible for the portion which accrued on and after such date.
5.7 Other Business Expenses. Except as otherwise provided in Sections 5.5, 5.6, and 5.8, and subject to the terms of this Section 5.7,
bills received by the Sellers or by Buyer in connection with the operation of the Franchised Businesses and/or ownership of the Assets
(including, but not limited to, invoices for real estate taxes, personal property taxes, equipment rental, telephone charges, and utilities)
(collectively, "Bills") shall, if they relate to periods both before and after the Closing Date, be prorated as of the Closing Date, with the
Sellers responsible for the portion which accrued prior to the Closing Date and Buyer responsible for the portion which accrued on and
after such date. The Bills shall be prorated and settled in accordance with the following:
5.7.1 Pre-Closing Bills. All Bills received by the Sellers and Buyer before the Closing Date must be presented at or before the Closing.
Any such Bills not presented at or before Closing shall be excluded from proration under this Section 5.7.
5.7.2 Post-Closing Bills. Bills received by the Sellers and Buyer after the Closing Date shall be presented as provided in Section 5.1. A
Bill received after the Closing shall be excluded from proration under this
Section 5.7 unless the Bill exceeds five hundred dollars ($500).
5.7.3 Responsibility for Calculation. The Sellers shall be responsible for calculating all prorations under this Section 5.7. Buyer shall
have five (5) business days after the receipt of the Sellers' calculation to object to the calculation, or the calculation shall be deemed
approved.
5.8 Special Items. Buyer and the Sellers shall jointly calculate the amount of the items specified below in this Section 5.8:
5.8.1 Prepaid Advertising Expenses. Buyer shall reimburse the Sellers for expenses paid by the Sellers in the ordinary course of
business before the Closing Date for print, direct mail, and all other advertising and promotion that specifically refers to, and that is
2002. EDGAR Online, Inc.
clearly and primarily designed to promote, courses starting after the Closing Date ("Prepaid Advertising Expenses"). The Sellers shall
furnish such documentation as Buyer may reasonably request to verify all expenditures for which the Sellers seek reimbursement.
5.8.2 Basket of Goods Items. Buyer shall pay the Sellers an amount equal to the Sellers' cost for "basket of goods" items on hand in or
en route to the Franchised Businesses as of the Closing Date, provided that: (i) such items are in their original, unbroken shipping
containers; and (ii) the expiration date of such items is not less than three (3) months after the Closing Date. "Basket of goods" items
delivered by the Sellers to students enrolled in courses that have not started as of the Closing Date shall be treated as items on hand in
the Franchised
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Businesses, without regard to clauses (i) and (ii) above. The Sellers may retain any basket of goods items not paid for by Buyer under
this Section.
5.8.3 Marketing Materials. Buyer shall pay the Sellers an amount equal to the Sellers' cost for current marketing supplies purchased
from Products or from third parties (including, but not limited to, brochures and course schedules) that remain on hand in or en route
to the Franchised Businesses as of the Closing Date, provided that (i) such items have not been accounted for under Section 5.8.1; (ii)
the quantity of such items is no greater than the quantity typically maintained by the Sellers in the past or reasonably required for
increased business; (iii) Buyer shall have no obligation to pay for any items that would not ordinarily and reasonably be used within six
(6) months after the Closing Date; and (iv) such items are in their original, unbroken packages or other containers reasonably
acceptable to Buyer. The Sellers may retain any marketing supplies not paid for by Buyer under this Section, provided that, any such
items bearing any proprietary marks of Franchisor shall only be used internally by the Sellers or sold to other franchisees of
Franchisor, and not made available to any other person or entity.
5.8.4 Capital Expenditures. Buyer shall reimburse the Sellers for Capital Expenditures made by the Sellers in the ordinary course of
operating the Franchised Businesses after the date of the Option Agreement but before the Closing, provided that: (i) such Capital
Expenditures were not reflected on any balance sheet delivered to Buyer or its affiliates before execution of the Option Agreement,
and (ii) either: (a) such Capital Expenditures do not exceed $25,000, or (b) the Sellers obtained Buyer's written consent for
expenditures causing the Sellers to exceed the $25,000 threshold and for each subsequent Capital Expenditure for which the Sellers
seek reimbursement. For purposes of this Section, "Capital Expenditure" means the book value of any furniture, equipment, or other
item (i) that is depreciable under GAAP, and (ii) whose original cost to the Sellers exceeded $1,000 (or which is integrated into an
item or group of similar items whose total cost exceeded $1,000).
5.9 Franchise Fees, Etc. The Sellers, Buyer and Franchisor shall calculate and pay in accordance with Section 5.1: (i) the amount of
any unpaid royalty-service fees and unpaid advertising-promotion fees due to Franchisor under the Franchise Agreements as of the
Closing Date; (ii) the amount of any undisputed monies owed by the Sellers to Franchisor or its affiliates (other than Products, as
provided in Section 5.5) as of the Closing Date for course materials, products, supplies, or other goods or services purchased for use or
resale in the Franchised Businesses; and (iii) the amount of any undisputed transfer fees or other undisputed amounts owed to the
Sellers by Franchisor and its affiliates under the Franchise Agreements as of the Closing Date. With respect to clause (i) above: (x) the
deposits referred to in Section 1.2.4 and any other funds transferred by the Sellers to Buyer and its affiliates at Closing on which the
Sellers have not previously paid royalty-service fees and advertising-promotion fees shall not be subject to such fees; (y) any
royalty-service fees and advertising-promotion fees previously paid to Franchisor on amounts payable by the Sellers under Section
1.2.4 or this Section 5 shall be credited back to the Sellers at Closing; and (z) any post-Closing payments made by Buyer to the Sellers
under Sections 5.2 and 5.3 shall be subject to royalty-service fees and advertising-promotion fees which shall be paid by the Sellers.
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6. Allocation of Purchase Price. In accordance with Section 1060 of the Internal Revenue Code of 1986, as amended, the Purchase
Price shall be allocated in the manner set forth in Schedule 6 to this Agreement. The Sellers, the Stockholders, and Buyer each
covenant and warrant that: (i) in no tax return filed by it or any of its respective successors or assigns shall the allocation of the
Purchase Price be treated or reported inconsistently with or differently from the allocation of the Purchase Price set forth in Schedule
6, unless such change in allocation is the result of a determination by a taxing authority for that year or a preceding year; and (ii) in no
tax audit, tax examination, tax or compliance review or tax litigation, will it or any of its respective successors or assigns claim or
assert that the allocation of the Purchase Price is or should be inconsistent with or different from that set forth in Schedule 6, unless as
a result of a determination made by a taxing authority in a preceding year. The parties agree to file all appropriate Internal Revenue
Service forms with their respective Federal income tax returns for their respective tax year in which the Closing Date occurs.
7. Closing Deliveries. The Closing shall take place on [DATE TO BE DETERMINED WHEN ASSET PURCHASE AGREEMENT
IS SIGNED], or such other date as may be mutually agreed upon by the parties. The following events shall occur at the Closing:
2002. EDGAR Online, Inc.
7.1. Buyer shall deliver to the Sellers the amount required under
Section 4.1.
7.2 Buyer shall execute and deliver the Note.
7.3 If applicable, Buyer shall cause its affiliate to execute and deliver the Guaranty.
7.4 The Sellers shall execute and deliver to Buyer a Bill of Sale for the Assets in the form of Exhibit D to this Agreement.
7.5 Each Seller shall deliver to Buyer a good standing certificate from its state of incorporation and from each state in which the Seller
has qualified to do business, each current as of a date not more than five days before the Closing Date.
7.6 Each Seller shall deliver to Buyer a shareholder consent authorizing the Seller's entry into and performance of this Agreement,
executed by shareholders who collectively possess at least the minimum voting power required under the Seller's governing documents
and the law of the state of its incorporation to authorize such action by the Seller.
7.7 The Sellers shall execute and deliver a certificate in the form of Exhibit E to this Agreement (the "Sellers' Certificate").
7.8 With respect to each Lease, the appropriate Seller shall execute and deliver a Lease Assignment, signed by the lessor; and if
applicable, Buyer and/or an affiliate of Buyer shall execute and deliver a guaranty of the lessee's obligations under the Lease. If the
Seller is unable to obtain the lessor's consent to a lease assignment after diligent effort as provided in
Section 3.2, the Seller shall execute and deliver at the Closing a sublease for the premises on the same terms as the Seller's lease, in a
form mutually acceptable to the parties. If the Seller is unable to deliver either the lessor's consent to the Lease Assignment or a
sublease for the premises, the Seller shall deliver evidence acceptable to Buyer that the Seller has made
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arrangements for Buyer to occupy premises of equivalent quality at no higher cost to Buyer, and the Seller shall reimburse Buyer for
moving costs as provided in Section 15.7 below.
7.9 The Sellers and Buyer shall execute an Assignment and Assumption Agreement with respect to the Assumed Contracts, in the form
of Exhibit F to this Agreement; and, if applicable, the Sellers shall deliver to Buyer the written consents of third parties to the
assignment and assumption of the Assumed Contracts.
7.10 The Sellers shall deliver suitable evidence of transfer of the rights referred to in Section 1.2.6.
7.11 The Sellers shall deliver the written consents of all other persons, if any, whose approval or consent to the performance of this
Agreement by the Sellers and the Stockholders or to transfer of the Assets is legally or contractually required.
7.12 The Sellers, the Stockholders, Buyer and Franchisor shall execute a Mutual Release in the form of Exhibit G to this Agreement.
The Sellers shall also cause Joel Rubin to execute the Mutual Release, and Buyer shall also cause Products to execute the Mutual
Release.
7.13 The Sellers shall deliver certificates of insurance satisfactory to Buyer demonstrating that the Sellers have the insurance coverage
described in Section 8.15 below.
8. Representations and Warranties of the Sellers and the Stockholders. The Sellers and the Stockholders, jointly and severally,
represent and warrant to Buyer and Franchisor that:
8.1 Each Seller has been duly organized and is validly existing and in good standing under the laws of the state of its incorporation.
Each Seller has qualified to do business in each jurisdiction where it is carrying on the Franchised Businesses, except where the failure
to qualify to do business would not have a material adverse effect on the Franchised Businesses.
8.2 The issued and outstanding stock of each Seller is owned of record and beneficially by the persons and entities shown on Schedule
8.2, and there are no other shareholders. The execution, delivery, and performance of this Agreement has been duly authorized by the
board of directors of each Seller, and all necessary stockholder action under each Seller's bylaws and state law has been taken for
approval of the execution and delivery of this Agreement by the Seller, performance of the terms of this Agreement by the Seller, and
the consummation by the Seller of the transactions contemplated hereunder. No filing with, notices to, or approvals of any
2002. EDGAR Online, Inc.
governmental or regulatory body or agency or any other person are required to be made or obtained by any Seller or Stockholder in
connection with the consummation of the transactions contemplated hereunder.
8.3 The execution and delivery of this Agreement, the Sellers' performance hereunder, and the consummation of the transactions
herein contemplated do not, and to the best of the Sellers' and the Stockholders' knowledge will not, immediately or with the passage
of time, the giving of notice or otherwise, result in the breach of, constitute a default or violation under, or accelerate any obligation
under any agreement or other instrument to which any Seller or Stockholder is a party, or by which any Seller or Stockholder may be
bound.
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8.4 This Agreement and the other agreements and transactions contemplated herein to which any Seller or Stockholder is or will be a
party will each, upon execution and delivery, be a legal, valid, and binding obligation of the Seller or Stockholder, enforceable in
accordance with its terms.
8.5 The Sellers own the Assets free and clear of any and all liens, security interests, claims and encumbrances.
8.6 All furniture, fixtures and equipment that the Sellers were using in the Franchised Businesses as of the date of execution of the
Option Agreement remain in operation in the Franchised Businesses. Otherwise, the Sellers make no representation as to such
furniture, fixtures and equipment, which are transferred to Buyer "as is."
8.7 The Sellers and the Stockholders are not in material breach or default of any contract or other commitment to Buyer, Franchisor, or
third parties, including without limitation the Franchise Agreements and the Option Agreement.
8.8 The Sellers have not engaged a broker in connection with any transaction represented by this Agreement.
8.9 There is no material claim, investigation, litigation, arbitration, or enforcement proceeding pending or, to the knowledge of any
Seller or Stockholder, threatened against any Seller or the Franchised Businesses.
8.10. The Sellers have previously delivered to Buyer copies of their federal income tax returns for calendar years 1997 and 1998, their
audited balance sheets dated December 31, 1998 and December 31, 1999, and their audited profit-and-loss statements for the years
ending December 31, 1998 and December 31, 1999 [NOTE: ADD 2000 Q1/ Q2/Q3 QUARTERLY STATEMENTS, AS
APPLICABLE] (collectively, the "Financial Statements"). To the best of the Sellers' and the Stockholders' knowledge, the Financial
Statements reflect or provide for all material claims against, and all material debts and liabilities relating to, the Franchised Businesses,
fixed or contingent, as of the dates of the Financial Statements and for the periods covered by them, as determined in accordance with
generally accepted accounting principles, consistently applied. To the best of Sellers' and the Stockholders' knowledge, there has not
been any change since the date of the latest balance sheet which has materially and adversely affected the Franchised Businesses or the
Assets or the financial condition or results of operation of any Seller. Buyer acknowledges the Sellers' right to update the disclosure
schedules attached to this Agreement as provided in the Option Agreement, provided that the updates reflect no material adverse
change in the Franchised Businesses, the Assets, or the financial condition or results of operation of the Sellers. The Financial
Statements are true, correct, and complete in all material respects.
8.11 The Sellers have timely filed all federal, state, local, and foreign income, franchise, payroll, sales, property, and other tax returns
which were required to be filed prior to the date of this Agreement, and have made payment of all taxes shown by those returns to be
due
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and payable. Each such return was prepared in compliance with all applicable laws and regulations, and all such returns are true and
accurate in all material respects.
8.12 To the best of the Sellers' and the Stockholders' knowledge, each Seller has all requisite power and all necessary permits,
certificates, contracts, approvals and other authorizations required by federal, state, city, county or other municipal bodies to own,
lease, and use the Assets and to operate its Franchised Business in the manner in which it is presently operated.
8.13 No Seller or Stockholder has received any notice or is aware of any allegation of any failure to comply with applicable local,
state, or federal laws, regulations, ordinances, administrative orders, or judicial orders in connection with the operation of the
Franchised Businesses and ownership and use of the Assets. To the best of the Sellers' and the Stockholders' knowledge, there are not
now and have not been any material failures to comply with such laws or orders.
2002. EDGAR Online, Inc.
8.14 Except for the liabilities expressly assumed by Buyer under
Section 3, the Sellers and the Stockholders have no knowledge of any agreements, leases, contracts, charges, encumbrances or
restrictions which would restrict Buyer's use or right to use any of the Assets or will create obligations for which Buyer will be liable.
8.15 The Sellers have maintained liability insurance coverage equal to or exceeding Franchisor's minimum requirements for any claims
which may have arisen or causes of action which may have accrued during the Sellers' ownership and/or operation of the Assets and
the Franchised Businesses. Such liability insurance is of the "occurrence" type, so that if the policies are discontinued by the Sellers
after the Closing, coverage will nevertheless continue at the same policy limits (subject to the terms and conditions of such policies)
with respect to such claims and causes of action.
8.16 To the best of the Sellers' and the Stockholders' knowledge, neither this Agreement, nor any Schedule or Exhibit hereto, nor any
certificate or other information or document furnished to Buyer or Franchisor by or on behalf of any Seller or Stockholder in
connection with the transactions contemplated hereunder, contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not misleading.
8.17 Schedule 8.17 is a list of all persons currently employed full time by the Sellers in the Franchised Businesses (the "Employees").
Schedule
8.17 accurately and completely shows the Employees' current rates of compensation, including bonuses. The Sellers have no oral or
written understandings with any Employee that permit the Employee to be employed for a term or that otherwise relate to terms or
conditions of such Employee's employment which Buyer will be required to assume. Except to the extent consistent with Section 5.4,
the Sellers and the Stockholders have made no promises or representations to any of the Employees that Buyer would employ them or
would continue in effect any benefit to which they may now be entitled or believe themselves to be entitled, or would pay or grant any
bonus or benefit which any Employee may have accrued during his or her employment by Seller. The Sellers and the
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Stockholders have made no promises or representations to any of the Employees concerning bonuses that are inconsistent with the
bonus plans disclosed by the Sellers to Buyer.
8.18 Schedule 8.18 lists all Employee Pension Benefit Plans, as that term is defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and all Employee Welfare Benefit Plans, as that term is defined in Section 3(1)
of ERISA, which the Sellers have maintained or contributed to for the benefit of any current or former employee of the Sellers
(collectively, the "Employee Benefit Plans"). The Sellers and the Stockholders represent with respect to the Employee Benefit Plans:
8.18.1 None of the Employee Benefit Plans is a "multi-employer plan," as that term is defined in Section 3(37) of ERISA. No Seller
has ever contributed to or been required to contribute to any multi-employer plan.
8.18.2 Each Employee Benefit Plan (and each related trust or insurance contract) complies in form and in operation with the applicable
requirements of ERISA and the Internal Revenue Code of 1986, as amended (the "IRC"). All required reports and descriptions
(including without limitation Form 5500 Annual Reports, summary annual reports, PBGC-1's, and summary plan descriptions) have
been timely filed or distributed with respect to each Employee Benefit Plan.
8.18.3 All employer contributions and employee salary reduction contributions which were due prior to the date of this Agreement
have been paid to each Employee Pension Benefit Plan, and the Sellers have made provision for payment of all such contributions
which relate to the period up to the Closing Date. All premiums and other payments for all periods ending on or before the Closing
Date have been paid with respect to each Employee Welfare Benefit Plan.
8.18.4 Each Employee Pension Benefit Plan meets the requirements of a "qualified plan" under IRC Section 401(a). The Sellers'
third-party administrator has received a favorable opinion letter from the Internal Revenue Service with respect to a prototype of the
Employee Pension Benefit Plan adopted by the Sellers. The Sellers have not been refused a favorable determination letter from the
IRS as to the Employee Pension Benefit Plan as adopted by the Sellers.
8.18.5 There have been no Prohibited Transactions (as that term is defined in ERISA Section 406 and IRC Section 4975) with respect
to any Employee Benefit Plan, and no Fiduciary (as that term is defined in ERISA
Section 3(21)) is liable for breach of fiduciary duty or any other failure to comply in connection with the administration or investment
of the assets of any Employee Benefit Plan. No claim, proceeding, or investigation (other than routine claims for benefits) with respect
to the administration or investment of the assets of an Employee Benefit Plan is pending or has been threatened, and the Sellers and the
Stockholders are not aware of any basis for any such claim, proceeding, or investigation.
2002. EDGAR Online, Inc.
8.18.6 Except as disclosed in Schedule 8.18, the Sellers have no current obligation to make group medical coverage available to
employees, former employees, or any of
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their beneficiaries under Part 6 of Subtitle B of Title I of ERISA or IRC
Section 4980B. No Seller has ever maintained or contributed to any Employee Welfare Benefit Plan providing health, accident, or life
insurance benefits to former employees or their beneficiaries, other than in accordance with Part 6 of Subtitle B of Title I of ERISA or
IRC Section 4980B.
8.19 Except for sales tax obligations specifically disclosed by the Sellers to Buyer and paid or otherwise discharged by the Sellers, no
sales tax, use tax, excise tax, transfer tax, recording fee or other tax or fee of a material nature (other than income taxes due and owing
by the Sellers) will be payable by the Sellers or Buyer to any governmental agency based on the transfer of the Assets from the Sellers
to Buyer.
THE ABOVE REPRESENTATIONS AND WARRANTIES SHALL SURVIVE THE CLOSING FOR TWO YEARS AS
PROVIDED IN SECTION 12 AND SECTION 23 BELOW, EXCEPT THAT SECTIONS
8.11 AND 8.13 SHALL SURVIVE FOR TWO YEARS OR UNTIL EXPIRATION OF THE STATUTE(S) OF LIMITATIONS
APPLICABLE TO THE MATTERS REFERRED TO IN THOSE SECTIONS, WHICHEVER IS LONGER.
9. Representations and Warranties of Buyer. Buyer represents and warrants to the Sellers and the Stockholders that:
9.1 Buyer has been duly organized and is validly existing and in good standing under the laws of the state of Delaware.
9.2 The execution, delivery, and performance of this Agreement has been duly authorized by the members of Buyer, and all necessary
member action under Buyer's operating agreement and state law has been taken for approval of the execution and delivery of this
Agreement by Buyer, performance of the terms of this Agreement by Buyer, and the consummation by Buyer of the transactions
contemplated hereunder. No filing with, notices to, or approvals of any governmental or regulatory body or agency or any other person
are required to be made or obtained by Buyer in connection with the consummation of the transactions contemplated hereunder.
9.3 The execution and delivery of this Agreement, Buyers' performance hereunder, and the consummation of the transactions herein
contemplated do not, and to the best of Buyer's knowledge will not, immediately or with the passage of time, the giving of notice or
otherwise, result in the breach of, constitute a default or violation under, or accelerate any obligation under any agreement or other
instrument to which Buyer is a party, or by which Buyer may be bound.
9.4 This Agreement and the other agreements and transactions contemplated herein to which Buyer is or will be a party will each, upon
execution and delivery, be a legal, valid, and binding obligation of Buyer, enforceable in accordance with its terms.
9.5 Buyer has not engaged a broker in connection with any transaction represented by this Agreement.
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THE ABOVE REPRESENTATIONS AND WARRANTIES SHALL SURVIVE THE CLOSING FOR TWO YEARS AS
PROVIDED IN SECTION 12 AND SECTION 23 BELOW. In the event Buyer assigns its rights under this Agreement to a subsidiary
formed for the purpose of carrying out the transactions contemplated hereunder, the above representations and warranties shall be
deemed to have been made jointly and severally by Buyer and such subsidiary.
10. Obligations Pending the Closing. The Sellers and the Stockholders shall comply with all of the covenants in Section 7 of the
Option Agreement through the Closing DATE. In addition, the Sellers shall not: (i) increase the compensation or employee benefits of
any employee of the Franchised Businesses without the written consent of Buyer, which shall not be unreasonably withheld, or (ii)
except in the ordinary course of business consistent with the Sellers' past practices, offer or permit any special inducements for course
sign-ups. The Sellers shall promptly notify Buyer of any material adverse change in the Franchised Businesses that occurs prior to the
Closing Date.
11. [Omitted]
12. Restrictions on Competition, Solicitation, and Hiring. The Sellers and the Stockholders shall not, either directly or indirectly
through any other person or entity, without Buyer's prior written consent:
2002. EDGAR Online, Inc.
12.1 For a period of four (4) years from the Closing Date, become engaged or involved in any business or activity which relates to,
involves, or is competitive with the TPR Method (as defined in, and modified by Franchisor pursuant to, the Franchise Agreements),
within one hundred (100) miles of the primary site location of any company-owned or franchised business operated under the TPR
Method. This provision does not prohibit Rob Cohen from entering into an employment or consulting arrangement with any
independent franchisee of Franchisor that is operating under the TPR Method, provided that (i) Mr. Cohen neither holds nor obtains
any ownership interest in such independent franchisee or the business operated under the TPR Method, and (ii) such arrangement shall
cease if the independent franchisee ceases to operate under the TPR Method for any reason. Buyer agrees that neither Mr. Cohen's
existing 1% ownership interest in Princeton Review of Taiwan nor the direct or indirect interest of the Sellers and the Stockholders in
the Stock shall be deemed to violate this Section.
12.2 For a period of four (4) years from the Closing Date, solicit any individuals, businesses, or organizations that were customers of
the Sellers prior to the Closing or disclose any information about such customers to any person, company or other legal entity. This
Section does not prohibit solicitation of any individual or entity whose identity was obtained from a source in the public domain,
provided that such solicitation is not for a purpose that would be contrary to the first sentence of Section 12.1 above.
12.3 Except as permitted under the last sentence of this Section 12.3, for a period of two (2) years from the Closing Date, hire any
person who worked for Buyer, its affiliates, or the Franchised Businesses as of the Closing Date or at any time within six (6) months
before the Closing Date, and for two additional years after the expiration of such two-year period, hire any such person without
complying with Franchisor's employee transfer policy as it existed on the
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Closing Date. Notwithstanding the previous sentence, the Sellers and the Stockholders may hire (i) any person who voluntarily left his
or her employment with Buyer or its affiliates at least six (6) months before being contacted by the Sellers and the Stockholders for the
purpose of discussing possible employment; and (ii) any person whose employment was terminated by Buyer or its affiliates before the
person was contacted by the Sellers and the Stockholders for the purpose of discussing possible employment.
12.4 For a period of four (4) years from the Closing Date, directly or indirectly induce, or attempt to influence, any employee of
Franchisor, Buyer, or their affiliates to terminate his or her employment. This provision shall not be construed as a waiver of any rights
or claims that Buyer, Franchisor, and their affiliates may have against the Sellers or the Stockholders as a result of a breach by any
person of an employment or other agreement with Franchisor, Buyer, or their affiliates after the end of such four-year period. Any
hiring of an employee or former employee of Franchisor, Buyer, or their affiliates that complies with Section 12.3 above shall not be
deemed to violate this Section 12.4.
12.5 If in any dispute over this Section 12 an arbitrator or court deems any provision of this Section 12, as written, to be unreasonable
and unenforceable under applicable law, the parties agree that the arbitrator or court shall reduce the scope of the provision or strike
the provision from this Agreement in order that this Section 12 may impose the maximum duty permitted by applicable law. The
Sellers and the Stockholders agree that they will remain bound by this Section 12 as so modified by the arbitrator or court.
13. Indemnification.
13.1 Without limiting any of their other obligations under this Agreement, the Sellers and the Stockholders, jointly and severally, agree
to indemnify and hold harmless Buyer, Franchisor, their affiliates, and their respective officers, directors, shareholders and employees
against and from any loss, liability, damages, cost or expense (including, but not limited to, reasonable attorneys' and accounting fees
and expenses) based upon, arising out of, or relating to: (i) any materially inaccurate, materially untruthful, or materially erroneous
representation of any Seller or Stockholder set forth in the Option Agreement, this Agreement, or any certificate or document delivered
pursuant to this Agreement; (ii) any material failure to perform with respect to any of the covenants, conditions or agreements of any
Seller or Stockholder set forth in the Option Agreement, this Agreement, or any certificate or document delivered pursuant to this
Agreement; or (iii) the ownership or operation of the Franchised Businesses up to the Closing Date.
13.2 Buyer agrees to indemnify and hold harmless the Sellers and the Stockholders against and from any loss, liability, damages, cost
or expense (including but not limited to reasonable attorneys' and accounting fees and expenses) based upon, arising out of, or relating
to: (i) any materially inaccurate, materially untruthful, or materially erroneous representation of Buyer, Franchisor, and their affiliates
set forth in the Option Agreement, this Agreement, or any certificate or document delivered pursuant to this Agreement;
(ii) any material failure to perform with respect to any of the covenants, conditions or agreements of Buyer set forth in the Option
Agreement, this Agreement or any certificate or document delivered pursuant to this Agreement;
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2002. EDGAR Online, Inc.
38
or (iii) the ownership or operation of the Franchised Businesses by Buyer on and after the Closing Date.
13.3 All claims for indemnification under Sections 13.1 and 13.2 above must be submitted within two (2) years after the Closing,
except that a claim by Buyer with respect to the representations and warranties in Sections 8.11 and
8.13 may be submitted at any time before the expiration of the statute(s) of limitations applicable to the matters referred to in Sections
8.11 and 8.13. If any party becomes aware of any claim in respect to which it believes it is entitled to indemnification pursuant to this
Agreement (a "Claim"), such party (the "Claiming Party") shall give written notice of the Claim to the Sellers and the Stockholders or
to Buyer, as appropriate (the "Indemnifying Party"), within ninety (90) days after the Claiming Party becomes aware of the Claim. In
the case of a Claim based on a loss or liability asserted against the Claiming Party by a third party, the Indemnifying Party shall have
thirty (30) days from its receipt of notice of the Claim to assume defense of the Claim, and if the Indemnifying Party fails to assume
the defense within such thirty-day period the Claiming Party shall have the right to contest, settle, or pay the claim, in the Claiming
Party's sole discretion. Failure to provide timely notice of a Claim:
(i) will not prohibit the Claiming Party from conducting its own defense (including hiring its own legal counsel); and (ii) will relieve
the Indemnifying Party from any obligation to indemnify for that particular Claim, to the extent the Indemnifying Party is prejudiced
by failure to receive notice. The Claiming Party and the Indemnifying Party shall cooperate fully with each other with respect to all
Claims subject to indemnification, and shall keep each other fully advised with respect thereto, including supplying copies of all
relevant documentation promptly as it becomes available.
13.4 Notwithstanding anything to the contrary in this Section 13, payment of a Claim to the Indemnified Party shall not be due until
such time as the aggregate amount of all pending Claims made by the Indemnified Party exceeds $10,000. Any Claims that remain
unpaid solely on account of this provision as of the expiration of the two-year period specified in Section 13.3 shall be deemed
waived.
14. Assignment of Franchise Agreements. The Sellers and Franchisor agree that upon consummation of this transaction, the Sellers'
and Stockholders' interest in the Franchise Agreements will be deemed assigned to Buyer. The Sellers and the Stockholders will have
no further rights or obligations thereunder, except for the post-term covenant not to compete and the post-term obligations of the
Sellers and the Stockholders to: (i) return all materials containing confidential information about Franchisor or the TPR Method; (ii)
discontinue use of such confidential information; and (iii) cease all use of the Proprietary Marks and the TPR Method licensed under
the Franchise Agreements.
15. Post-Closing Obligations of the Sellers and the Stockholders. In addition to any other post-Closing obligations of the Sellers and
the Stockholders set out in this Agreement:
15.1 The Sellers and the Stockholders shall retain and carry out all responsibility for the administration, reporting, continuation, and
termination of the Employee Benefit Plans. The parties acknowledge that a Buyer is acquiring no liability with respect to the Employee
Benefit Plans and no interest in any profit-sharing plan funds or similar funds held for the benefit of Sellers' employees under the
Employee Benefit Plans.
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15.2 The Sellers shall timely file all federal, state, and local income, franchise, payroll, sales, property, and other tax returns relating to
the Sellers or the Franchised Businesses for the period through the Closing which become due on or after the Closing; shall timely pay
all taxes shown by such returns to be due and payable, together with any interest or penalties which may be assessed by taxing
authorities on any taxes which were not timely paid; and, upon Buyer's request, shall deliver to Buyer copies of all tax clearance letters
and closing notices received from government authorities which relate to the Sellers or the Franchised Businesses. Buyer shall
cooperate with the Sellers in satisfying their obligations under this Section 15.2 by providing such copies, documents and information
as are reasonably necessary.
15.3 At Buyer's request, without further consideration, the Sellers and the Stockholders will execute and deliver such further
instruments of conveyance and transfer and take such other action as Buyer may reasonably require for the transfer of the Assets.
15.4 At Buyer's request, Rob Cohen shall devote his full time for the first three (3) months after the Closing, and not fewer than four
(4) hours per week for the following three (3) months, to assisting Buyer with the transition of the Franchised Businesses to Buyer.
Buyer agrees to pay Mr. Cohen $2,000 per week for his services under this Section, provided that Buyer shall have the unrestricted
right to terminate Mr. Cohen's services at any time and without obligation to make any further payments hereunder.
15.5 [Omitted.]
2002. EDGAR Online, Inc.
15.6 Each Seller shall change its corporate name to delete the words "Princeton Review" and shall cancel or transfer to Buyer all
business name and fictitious name registrations containing the words "Princeton Review." The Sellers shall furnish evidence of such
actions to Buyer upon reasonable request.
15.7 As provided in Section 7.8, if the Sellers fail to deliver at Closing a fully-executed lease assignment or a sublease with respect to
any of the existing business premises of the Franchised Businesses, then without limiting the obligations of the Sellers and the
Stockholders under Section 13.1, the Sellers shall promptly reimburse Buyer (i) for any and all out-of-pocket costs that Buyer may
incur as a result of relocating to comparable premises, and
(ii) for any loss of business suffered by Buyer due to an interruption in the Franchised Business in order to relocate.
15.8 The Sellers and the Stockholders shall use their best efforts to assist Buyer in obtaining either: (a) a transfer of the I-17
authorization of Princeton Review of Boston, Inc. referred to in Section 1.2.9, or (b) a new I-17 authorization of Buyer to enroll
non-immigrant aliens, equivalent to the authorization held by Princeton Review of Boston, Inc. The Sellers and the Stockholders shall
bear the first $4,500 of legal fees incurred in connection with this Section.
16. Post-Closing Obligations of Buyer. In addition to any other post-Closing obligations of Buyer set out in this Agreement:
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16.1 Buyer shall furnish copies or permit access by the Sellers and their accountants and legal counsel, upon reasonable notice and
during regular business hours, to any of the Sellers' records delivered to Buyer as a part of the Assets.
16.2 At the Sellers' request, without further consideration, Buyer will execute and deliver such further evidence as the Sellers may
reasonably require of Buyer's assumption of responsibility for the items specified in clauses (i) and (ii) of Section 3.
16.3 Buyer shall permit Rob Cohen to continue to use the email address robc@review.com and shall permit Matthew Rosenthal to
continue to use the email address mattr@review.com during the four-year period of the covenant not to compete in Section 12,
provided that they are not in default under that Section. Messrs. Cohen and Rosenthal agree that such email accounts shall be used
solely for purposes consistent with the letter and spirit of this Agreement and that Buyer and its affiliates shall have no liability to them
for any interruption of service caused by circumstances beyond Buyer's reasonable control.
16.4 If required under Section 4.2.1, Buyer or the Guarantor shall cause the entity or entities succeeding to its or their interest in the
TPR Business to execute and deliver the Guaranty or to assume the Note.
17. Notices. All notices pursuant to this Agreement shall be in writing and shall be deemed given when delivered by hand, by
overnight courier, or by facsimile transmission, or on the third day after mailing if mailed by express mail or its equivalent, postage
prepaid, return-receipt requested, if available, as follows:
(a) To the Sellers and Mr. Rob Cohen
the Stockholders: 34 Baker Circle
Somerville, New Jersey 08876
with a copy to: Greg White
Chappell White LLP
268 Summer Street
Boston, Massachusetts 02110
(b) To Buyer and/or Franchisor: Mr. Mark Chernis
Princeton Review Management, L.L.C.
2315 Broadway
New York, New York 10024
with a copy to: David W. Koch
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
or to such other address as any party shall have designated by a notice in writing so delivered to the other parties. Notices directed to
2002. EDGAR Online, Inc.
the Sellers and the Stockholders as indicated above shall be effective as to all of the Sellers and the Stockholders, whether or not they
receive notice
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individually. Notices to counsel unaccompanied by notices to principals shall not constitute notice.
18. Entire Agreement. This Agreement, together with its Schedules and Exhibits and the Option Agreement, constitute the entire
agreement of the parties with respect to the subject matter hereof, and all prior negotiations, understandings and agreements between
the parties concerning the same subject matter, other than the Option Agreement, are merged herein. This Agreement may not be
modified or rescinded except in a written instrument signed by all of the parties hereto.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York, without giving
effect to New York principles of conflicts of laws.
21. Costs and Expenses. Except as specified in Section 13 of the Option Agreement, each party shall bear its own legal and other costs
and expenses in connection with the negotiation, preparation, and execution of this Agreement and the performance of the transactions
contemplated hereby. The Sellers and the Stockholders agree to indemnify and hold Buyer and Franchisor harmless from any broker's
or finder's fee or alleged broker's or finder's fee incurred by or claimed against the Sellers and the Stockholders. Buyer agrees to
indemnify and hold the Sellers and the Stockholders harmless from any broker's or finder's fee or alleged broker's or finder's fee
incurred by or claimed against Buyer or Franchisor.
22. Survival of Representations. The parties agree that no action or arbitration may be brought based on the alleged breach of any
representation or warranty set forth in Sections 8 and 9 of this Agreement unless such action or arbitration is commenced within two
(2) years after the Closing Date, except that an action by Buyer with respect to the representations and warranties in Sections 8.11 and
8.13 may be brought at any time before the expiration of the statute(s) of limitations applicable to the matters referred to in Sections
8.11 and 8.13.
23. Arbitration. Any dispute involving a monetary obligation under this Agreement, and certain disputes under the Note (as provided
therein) shall, if the amount in dispute is less than $250,000, be resolved by arbitration under the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). The arbitration proceeding shall be conducted in New York City. All matters within the
scope of the Federal Arbitration Act of the United States (9 U.S.C. sec. 1 et seq.) shall be governed by the Act. The parties shall jointly
select a neutral person to serve as the arbitrator, but if the parties have not agreed on the arbitrator within 30 days after the date of the
demand for arbitration, the arbitrator shall be appointed in accordance with AAA rules. The arbitrator shall have no authority to award
exemplary, punitive, or special damages, and each party shall be limited to the recovery of any actual damages sustained by it (and
costs and attorneys' fees, as provided below). The award of the arbitrator shall be conclusive and binding on all parties to this
Agreement, and judgment on the award may be entered in any court of competent jurisdiction. Nothing herein shall be construed or
interpreted to prevent any party
21
42
from commencing appropriate litigation in any court of competent jurisdiction to secure specific performance or equitable relief of any
kind for breach of this Agreement.
24. Prevailing Party Fees and Costs. The prevailing party or parties in any arbitration or litigation involving this Agreement will be
entitled to recover from the losing party or parties its or their reasonable costs and expenses arising out of or incurred by reason of the
action or arbitration, including but not limited to reasonable attorneys fees, AAA administrative fees, and arbitrators fees.
[SIGNATURE PAGES FOLLOW.]
22
43
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives.
PRINCETON REVIEW OF BOSTON, INC.
2002. EDGAR Online, Inc.
By:
Its:
PRINCETON REVIEW OF NEW JERSEY, INC.
By:
Its:
ROBERT L. COHEN, Individually
MATTHEW ROSENTHAL, Individually
PRINCETON REVIEW OPERATIONS, L.L.C.
By: ---------------------------
Mark Chernis
Chief Operating Officer
PRINCETON REVIEW MANAGEMENT, L.L.C.
By: ---------------------------
Mark Chernis
Chief Operating Officer
23
44
SCHEDULE 1.2
VALUATION OF ASSETS
AGREEMENT ALLOCATION WITHIN CLOSING
PROVISION ASSET/RIGHT PURCHASE PRICE ADJUSTMENT
(SEE SCHEDULE 6)
--------------------------------------------------------------------------------------------------------------------
1.2.1 Leasehold improvements, Seller's book value Section 5.8.4
FF&E, signs, etc.
--------------------------------------------------------------------------------------------------------------------
1.2.2 Leases Zero allocation None
--------------------------------------------------------------------------------------------------------------------
1.2.3 Course materials, promotional materials, Zero allocation Section 5.8.2, 5.8.3
books, etc.
--------------------------------------------------------------------------------------------------------------------
1.2.4 Deposits and accounts receivable Zero allocation 1.2.4
--------------------------------------------------------------------------------------------------------------------
1.2.5 Revenues for courses/tutoring in progress Zero allocation Section 5.2, 5.3
--------------------------------------------------------------------------------------------------------------------
1.2.6 Rights to telephone numbers, web sites, $25,000 None
etc.
--------------------------------------------------------------------------------------------------------------------
1.2.7 Franchise rights, patents, copyrights, Sellers' book value None
trade secrets, etc.
-------------------------------------------------------------------------------------------------------------------
1.2.8 Goodwill All residual amounts None
--------------------------------------------------------------------------------------------------------------------
1.2.9 Permits and businesses licenses Sellers' book value None
--------------------------------------------------------------------------------------------------------------------
1.2.10 I-17 authorization Sellers' book value None
--------------------------------------------------------------------------------------------------------------------
1.2.11 All papers and records $100,000 None
--------------------------------------------------------------------------------------------------------------------
45
SCHEDULE 1.2.2
2002. EDGAR Online, Inc.
LEASES
[TO BE COMPLETED WITHIN 30 DAYS AFTER EXECUTION OF OPTION AGREEMENT]
Landlord:
Date of Lease:
Expiration of Current
Lease Term:
Renewal Options:
Current Base Monthly Rent:
46
SCHEDULE 1.2.9
ASSUMED CONTRACTS
[TO BE COMPLETED WITHIN 30 DAYS AFTER EXECUTION OF OPTION AGREEMENT]
I. Contracts for Office Services
II. Written Customer Contracts
47
SCHEDULE 6
ALLOCATION OF PURCHASE PRICE
Agreement
Provision Asset/Right New Jersey Boston
--------- ----------- ---------- ------
1.2.1 Leasehold improvements, FF&E, signs, etc. See Schedule 1.2 See Schedule 1.2
1.2.6 Rights to telephone numbers, web sites, etc. $ 16,500 $ 8,500
1.2.7 Franchise rights, patents, copyrights, trade secrets, See Schedule 1.2 See Schedule 1.2
etc.
1.2.8 Goodwill See Schedule 1.2 See Schedule 1.2
1.2.9 Permits and business licenses See Schedule 1.2 See Schedule 1.2
1.2.10 I-17 Authorization Not Applicable See Schedule 1.2
1.2.11 All papers and records $ 65,000 $ 35,000
12 Covenant Not to Compete--Sellers** $ 65,000 $ 30,000
------------------ -----------------
[TO BE INSERTED WHEN [TO BE INSERTED WHEN
PURCHASE AGREEMENT IS PURCHASE AGREEMENT IS
EXECUTED] EXECUTED]
TOTAL PURCHASE PRICE**
======================= =======================
** The Purchase Price does not include the amounts paid to the Stockholders for their individual Covenants Not to Compete under
Section 12 of the Agreement. Neither the amount allocated to the Sellers' Covenant Not to Compete nor the amounts paid to the
Stockholders under
Section 4.1. of the Agreement is intended to be a limitation of the damages arising from a breach by the Sellers or the Stockholders.
48
2002. EDGAR Online, Inc.
SCHEDULE 8.2
STOCKHOLDERS OF THE SELLERS
[TO BE COMPLETED WITHIN 30 DAYS AFTER EXECUTION OF OPTION AGREEMENT]
49
SCHEDULE 8.17
EMPLOYEES OF THE SELLERS
[TO BE COMPLETED WITHIN 30 DAYS AFTER EXECUTION OF OPTION AGREEMENT]
50
SCHEDULE 8.18
EMPLOYEE BENEFIT PLANS
[TO BE COMPLETED WITHIN 30 DAYS AFTER EXECUTION OF OPTION AGREEMENT]
51
EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE made as of the date set forth below by and between [Princeton Review of
Boston, Inc., a Massachusetts corporation having a usual place of business at 57 Union Street, Suite 1, Newton, MA 02159] [or other
Seller entity] (hereinafter called "Assignor"), and Princeton Review Operations, L.L.C., a Delaware limited liability company having a
usual place of business at 2315 Broadway, New York, New York 10024, (hereinafter called "Assignee").
WHEREAS, Assignee is purchasing substantially all of the assets of Assignor pursuant to the terms of that certain Asset Purchase
Agreement between the Assignor, Assignee, Rob Cohen, Matt Rosenthal, and Princeton Review Management, L.L.C.;
WHEREAS, in connection with the purchase and sale of the business, Assignor desires to assign to Assignee, and Assignee desires to
accept from Assignor an assignment of that certain lease agreement set forth in Exhibit A (hereinafter called the "Lease") between the
Assignor and the lessor described therein (hereinafter called "Landlord").
NOW, THEREFORE, in consideration of ONE ($1.00) DOLLAR and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's interest in the Lease, effective as of the Effective Date, subject, however, to
the respective terms, covenants and conditions contained therein.
2. Assignee accepts such assignment, effective as of the Effective Date, and agrees to assume all of the obligations and liabilities of the
Assignor accruing or arising under the Lease from and after the Effective Date. Assignee does not assume any liability in connection
with any actual or alleged breach or default by Assignor occurring before the Effective Date.
3. This Assignment and Assumption of Lease shall be binding upon and shall inure to the benefit of Assignor and Assignee and their
respective successors and assigns.
4. The Landlord hereby consents to the within assignment by Assignor of its interest under the Lease to the Assignee and agrees that
Assignor (and all guarantors of Assignor's obligations) shall have no further liability under the Lease.
5. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
52
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Assumption of Lease to be duly executed and
delivered under seal as of the effective date set forth below.
Effective Date: As of the date of transfer of all or substantially all of the Assignor's assets to Assignee, but not later than
2002. EDGAR Online, Inc.
_____________. Assignor and Assignee shall hold this instrument in escrow until a copy hereof, with the effective date marked
hereon, shall be faxed or delivered to the Landlord.
PRINCETON REVIEW OF BOSTON, INC.
By:
Name:
Title:
PRINCETON REVIEW OPERATIONS, L.L.C.
By:
Name:
Title:
Consented to by:
[Name of Landlord]
By:
Name:
Title:
2
53
A.
B. COMMONWEALTH OF MASSACHUSETTS
____________, ss. [DATE]
Then personally appeared the above-named ____________________, the ___________ of [Princeton Review of Boston, Inc.], and
acknowledged the foregoing instrument to be his/her free act and deed, the free act and deed of
[Princeton Review of Boston, Inc.], before me,
Notary Public My Commission Expires:_________
3
54
EXHIBIT B TO
ASSET PURCHASE AGREEMENT
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, UNLESS THE MAKER
HAS RECEIVED THE WRITTEN OPINION OF COUNSEL SATISFACTORY TO THE LENDER TO THE EFFECT THAT
SUCH SALE, ASSIGNMENT OR TRANSFER DOES NOT INVOLVE A TRANSACTION REQUIRING REGISTRATION OF
SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SUBORDINATED PROMISSORY NOTE
New York, New York
$3,125,000 _________________, ____
2002. EDGAR Online, Inc.
FOR VALUE RECEIVED, [Maker's name], a [State of Incorporation] corporation (the "Maker"), with principal offices at [Maker's
Address], promises to pay to the order of Princeton Review of Boston, Inc. ("PRB"), a Massachusetts corporation, for itself and as
agent for Princeton Review of New Jersey, Inc. ("PRNJ"), a New Jersey corporation (PRB and PRNJ are referred to collectively
herein as the "Lender"), with principal offices at [Lender's Address], the principal sum of Three Million One Hundred Twenty-Five
Thousand Dollars ($3,125,000), with interest on the unpaid principal balance from time to time outstanding accruing at the rate of
eight and one-quarter percent (8.25%) per annum until maturity and payable as set forth herein. Upon the occurrence of an Event of
Default (as defined herein) this Note shall bear interest at the rate of twelve percent (12%) per annum (the "Default Rate").
Notwithstanding any other provision hereof, Lender does not intend to charge and Maker shall not be required to pay any interest or
other fees or charges in excess of the maximum permitted by applicable law; any payments in excess of such maximum shall be
refunded to Maker or credited to reduce principal hereunder.
This is the Note referred to in that certain Asset Purchase Agreement dated as of__________ (the "Asset Purchase Agreement"), by
and among the Maker, the Lender and the other parties named therein and is subject to all of the terms thereof. This reference shall not
impair the rights of the holder of this Note to receive payments as set forth herein. Capitalized terms used but not otherwise defined in
this Note shall have the same meaning as in the Asset Purchase Agreement.
55
1. Payment.
(a) Payment Schedule. The principal sum of this Note and interest due thereon shall be paid as follows:
(i) Interest accrued on the principal balance outstanding shall be due and payable on the first Business Day (as defined herein) of each
calendar quarter.
(ii) The principal sum of this Note shall be paid in equal, quarterly installments, each in the sum of $_____________, which shall be
due and payable on the first Business Day of each calendar quarter commencing on
[date which is the first Business day of the seventeenth full calendar quarter following the date of issuance of this Note] and on the first
Business Day of each of the next succeeding nineteen calendar quarters until and including the Maturity Date (as defined herein), or
sooner upon the occurrence of an Event of Default. Payments otherwise due on a day other than a Business Day shall be due and
payable on the next Business Day. If Lender exercises the Conversion Option under Section 1(d) below and any portion of the unpaid
principal is not converted, the quarterly payments required by this section shall be recalculated by dividing the unconverted principal
amount by twenty (the number of quarterly payments contemplated by this section).
(iii) In all events, and under all circumstances, all unpaid principal and accrued interest shall be due and payable on the first Business
day of the thirty-sixth quarter after the issuance of this Note (the "Maturity Date").
(b) Manner of Payments. Except as provided in Section 1(d) below, principal and all accrued interest shall be payable in lawful money
of the United States of America, by wire transfer to a bank account designated by the legal holder of this Note, or in such other manner
as the legal holder may designate from time to time in writing to the Maker. Maker shall have no responsibility to see to the application
of any payment made as provided herein as between any persons comprising the Lender. The application of any payment under this
Note shall not affect the allocation made pursuant to Section 6 of the Asset Purchase Agreement.
(c) Prepayment. The Maker may prepay this Note in whole or in part, without premium or penalty, at any time after expiration of the
Option Period, as defined in Section 1(d) below. All payments received shall first be applied to interest then due, and any balance
thereafter remaining to reduction of principal.
(d) Conversion Option. Lender shall have a one-time right to convert either 100% or any percentage between 0% and 33% of the
unpaid principal due under this Note to common stock of The Princeton Review, Inc. ("Stock") at the initial public offering price of
the Stock. Lender may exercise this right by delivering written notice (the "Conversion Notice") to Maker and The Princeton Review,
Inc. during the period beginning on the first anniversary of the Closing Date under the Asset Purchase Agreement and ending on the
sixtieth day after such anniversary date (the "Option Period"). The
2
56
Conversion Notice shall include a calculation of accrued interest due under this Note through the anticipated date of issuance of the
shares of Stock to Lender as provided below. Subject to any applicable requirements or restrictions of federal and state securities laws,
if Lender timely delivers the Conversion Notice, Maker shall promptly cause The Princeton Review, Inc. to issue to Lender the
number of shares of Stock determined by dividing the amount of unpaid principal to be converted by the initial offering price of the
Stock. Concurrently with the issuance of the shares to Lender, Maker shall pay to Lender any accrued interest due for the period
through the date of issuance of the shares. If Lender converts 100% of the unpaid principal to Stock, upon issuance of the appropriate
2002. EDGAR Online, Inc.
number of shares of Stock to Lender and payment of the accrued interest, Lender shall deliver the original of this Note to Maker
stamped "Paid" or with other acknowledgment that this Note has been paid and discharged in full.
2. Late Payment Fee. If the entire amount of any required payment of principal and/or interest is not paid in full within one (1)
Business Day after notice thereof from the Lender, the Maker shall pay to the Lender a late fee equal to one and one-half (1-1/2%)
percent of the required payment (the "Late Fee").
3. Event of Default.
(a) Defined. This Note shall become due and payable upon the occurrence of any of the following events (each an "Event of Default"):
(i) A default by the Maker in the making of any required payment of principal and/or interest under Section 1(a) of this Note
continuing uncured for more than ten (10) calendar days after the giving of notice to the Maker of such default; or
(ii) If the Maker or any Guarantor is adjudicated bankrupt or has a trustee or receiver appointed for all or a substantial part of the
Maker's or Guarantor's property in any involuntary proceeding, or if any court shall have taken jurisdiction of all or a substantial part
of the Maker's or Guarantor's property in any involuntary proceeding for the reorganization, dissolution, liquidation or winding up of
the Maker or such Guarantor; or
(iii) If the Maker or any Guarantor files a petition in voluntary bankruptcy or a petition under Chapter XI of the Federal Bankruptcy
Code or any similar state or federal law, whether now existing or hereafter enacted, or if the Maker or any Guarantor files an answer
not denying jurisdiction of the court or admitting the material allegations in any such proceeding filed against it, or if any such
proceeding shall be approved and not vacated or stayed within 60 days of commencement; or
(iv) If the Maker or any Guarantor makes an assignment for the benefit of its creditors or admits in writing an inability to pay its debts
generally as they become due or consents to the appointment of a receiver, trustee or liquidator of all of its property or a substantial
part thereof; or
3
57
(v) If the Maker or any Guarantor terminates its existence, except that it is not an Event of Default if the Maker or Guarantor
terminates its existence in connection with a reorganization of the corporate structure of the Maker or Guarantor; or
(vi) If the Maker or any Guarantor defaults with respect to, or with the giving of notice or the passage of time would default with
respect to, the Senior Indebtedness (as defined herein); provided, however, that upon the cure of such default with respect to the Senior
Indebtedness, the Maker or any Guarantor shall be deemed to have cured the Event of Default under this Section 3(a)(vii); or
(vii) If the Maker defaults in the making of any Fee Payment (as defined in Section 3(d)) on the applicable Fee Payment Due Date; or
(viii) If the Maker or any Guarantor consummates a sale or transfer of all or substantially all of its assets or capital stock or a merger or
consolidation with another entity without complying with Section 3(b) below.
(b) Sale or Merger.
(i) It shall be an Event of Default under Section
3(a)(viii) if the Maker or a Guarantor:
(A) sells or transfers all or substantially all of its assets or capital stock (excluding the issuance and sale of the Maker's or a Guarantor's
capital stock in connection with a public offering pursuant to an effective registration statement under the Securities Act of 1933, as
amended, or any successor statute); or
(B) merges or consolidates with any other entity, without first satisfying the requirements of clause (ii) or (iii) below (whichever
applies).
(ii) Transaction with Affiliate. If the purchaser, transferee, or entity with which the Maker or Guarantor is merging or consolidating
(the "Transferee") is an entity controlling, controlled by, or under common control with the Maker or Guarantor (an "Affiliate"), then
before consummating the transaction, the Maker or Guarantor shall deliver to the Lender an executed Guaranty from the Transferee, as
required under Section 4.2.1 of the Purchase Agreement. No consent of the Lender is required.
2002. EDGAR Online, Inc.
(iii) Transaction with Unaffiliated Third Party. If the Transferee is not an Affiliate, then in addition to delivering an executed Guaranty
from the Transferee, the Maker or Guarantor shall obtain the Lender's consent as to the financial creditworthiness of the Transferee
and, in the case of a merger, of the surviving entity. The Lender's consent shall not be unreasonably withheld or unduly delayed.
4
58
(iv) It is not an Event of Default under Section
3(a)(v) if the Maker or any Guarantor terminates its existence in connection with a merger or consolidation that complies with this
Section 3(b).
(c) Opportunity to Cure Payment Default. If there shall be an Event of Default under Section 3(a)(i) of this Note, the Maker may, at
any time prior to the entry of a judgment by a court in favor of the Lender for all amounts due and payable hereunder, cure such Event
of Default by paying the entire amount of any overdue scheduled payments of principal and/or interest required to be paid under
Section 1(a) hereof (including interest at the Default Rate, as applicable) and the Late Fee (collectively, the "Overdue Amount"), plus
an amount equal to fifteen percent (15%) of the Overdue Amount (the "Cure Fee"), plus any and all costs of collection (as set forth in
Section 4 hereof) incurred by the Lender in connection with such Event of Default, provided, that there shall be no Event of Default
other than the one pursuant to Section 3(a)(i) hereof. Upon such cure by payment of all amounts required to be paid pursuant to this
Section 3(b), interest on the principal sum of this Note shall again bear interest at the rate of eight and one-quarter percent (8.25%) per
annum, unless and until a further Event of Default shall have occurred and remain uncured.
(d) Fee Payment Disputes. If at any time the Lender asserts, in a notice to the Maker, that the Maker has failed to make any payment
(by way of non-payment or underpayment) of any Late Fee or of any Cure Fee under Section
3(c) hereof (any such amount being a "Fee"), then the Lender shall give notice of such deficiency to the Maker. Either the Maker or the
Lender may submit any Fee dispute for binding arbitration under the terms of the Asset Purchase Agreement at any time. No dispute as
to a Fee payment shall give rise to a default hereunder until non-payment of a Fee after the applicable Fee Payment Due Date. The
term "Fee Payment Due Date" shall mean the earlier to occur of (1) the date on which an arbitration panel determines that a Fee is due
to the Lender or (2) the failure of the Maker to either pay a disputed Fee or to submit any dispute with respect to such Fee to binding
arbitration in accordance with the terms of the Asset Purchase Agreement within thirty (30) days of the date of notice from the Lender
of such Fee dispute if the amount in dispute, together with the amount of any other Fees then in dispute, as stated in the Lender's
notice(s) hereunder, exceeds the Threshold Amount (as defined below). The term "Threshold Amount" shall mean $15,000 prior to the
due date of the seventeenth principal installment due hereunder and $30,000 thereafter. The existence of a Fee dispute shall not affect
any accrual of the amount of any Fee hereunder or alter the obligations of the Maker under any provision of this Note. Prior to the Fee
Payment Due Date with respect to a Fee, the arbitration provisions of the Asset Purchase Agreement shall govern any dispute with
respect to such Fee.
4. Costs of Collection. The Maker hereby waives presentment, demand, protest and notices of every kind and description (except as
expressly required hereby) and agrees to pay all costs and expenses, including reasonable attorneys' fees in connection with the
collection, protection, preservation, defense or enforcement of this Note or any Guaranty of this Note after the occurrence of an Event
of Default, whether or not suit shall be instituted.
5
59
5. Subordination. The Maker, for itself, its successors and assigns, covenants and agrees, and the holder of this Note and each
successor holder of this Note by such holder's acceptance hereof, likewise covenants and agrees, that notwithstanding any other
provision of this Note, the payment of the principal of and interest on this Note shall be subordinated in right of payment, to the extent
and in the manner hereinafter set forth, to the prior payment in full of all Senior Indebtedness (as hereinafter defined) at any time
outstanding. The provisions concerning subordination contained herein shall constitute a continuing representation to all Persons who,
in reliance upon such provisions, become the holders of or continue to hold Senior Indebtedness, and such provisions are made for the
benefit of the holders of Senior Indebtedness, and such holders are hereby made obligees hereunder the same as if their names were
written herein as such, and they or any of them may proceed to enforce such provisions against the Maker or against the holder of this
Note without the necessity of joining the Maker as a party.
(a) Payment of Senior Indebtedness. All Senior Indebtedness shall be paid in full before any payment or distribution (whether in cash,
securities or other property) is made on account of this Note in any insolvency or bankruptcy proceedings, receivership, liquidation,
reorganization or other similar proceedings involving the Maker or its property, or in any proceedings for voluntary liquidation,
dissolution or other winding up of the Maker or distribution or marshaling of its assets or any composition with creditors of the Maker,
whether or not involving insolvency or bankruptcy. Any payment or distribution (except securities which are subordinated and junior
in right of payment to the payment of all Senior Indebtedness then outstanding in terms of substantially the same tenor as set forth
herein) which would, but for the foregoing sentence, be payable or deliverable in respect of this Note shall be paid or delivered
2002. EDGAR Online, Inc.
directly to the holders of Senior Indebtedness in the proportions in which they hold the Senior Indebtedness, until all Senior
Indebtedness has been paid in full. Every holder of this Note, by becoming a holder, designates the holder or holders of Senior
Indebtedness as his or its agents and attorney-in-fact to (i) demand, sue for, collect and receive the Senior Indebtedness holder's share
of payments and distributions referred to above, and (ii) to file any necessary proof of claim therefor and to take all such other action
(including the right to vote such Senior Indebtedness holder's share of this Note), in the name of the holder of this Note or otherwise,
as the Senior Indebtedness holders may determine to be necessary or appropriate for the enforcement of this section. The holder and
each successor holder of this Note, by its or his acceptance thereof, agrees to execute, at the request of the Maker, a separate
agreement with any holder of Senior Indebtedness on the terms set forth herein, and to take all such other action as the holder of Senior
Indebtedness may request in order to enable such holder to enforce this section.
(b) No Payment on Note Under Certain Conditions. If any default occurs in the payment of the principal of or interest on any Senior
Indebtedness (whether as a result of acceleration thereof by the holders of such Senior Indebtedness or otherwise) and during the
continuance of such default for a period up to ninety (90) days and thereafter if judicial proceedings shall have been instituted with
respect to such defaulted payment, or (if a shorter period) until such payment has been made or such default has been cured or waived
in writing by such holder of Senior Indebtedness, then and during the continuance
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60
of such event no payment of principal or interest on this Note shall be made by the Maker or accepted by any holder of this Note who
has received notice from the Maker or from a holder of Senior Indebtedness of such event.
(c) Payments Held in Trust. In case any payment or distribution shall be paid or delivered to any holder of this Note before all Senior
Indebtedness shall have been paid in full, despite or in violation or contravention of the terms of this subordination, such payment or
distribution shall be held in trust for and paid and delivered ratably to the holders of Senior Indebtedness (or their duly authorized
representatives), until all Senior Indebtedness shall have been paid in full.
(d) Subrogation. Subject to the payment in full of all Senior Indebtedness and until this Note shall be paid in full, the holder of this
Note shall be subrogated to the rights of the holders of Senior Indebtedness (to the extent of payments or distributions previously made
to such holders of Senior Indebtedness pursuant to the provisions of subparagraphs (a) and (c) above) to receive payments or
distributions of assets of the Maker applicable to the Senior Indebtedness. No such payments or distributions applicable to the Senior
Indebtedness shall, as between the Maker and its creditors, other than the holders of Senior Indebtedness and the holder of this Note,
be deemed to be a payment by the Maker to or on account of this Note; and for the purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness to which the holder of this Note would be entitled except for the provisions set forth
herein shall, as between the Maker and its creditors, other than the holders of Senior Indebtedness and the holder of this Note, be
deemed to be a payment by the Maker to or on account of the Senior Indebtedness.
(e) Scope of Section. The provisions set forth herein are intended solely for the purpose of defining the relative rights of the holder of
this Note, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained herein or elsewhere in
this Note is intended to or shall impair, as between the Maker, its creditors other than the holders of Senior Indebtedness, and the
holder of this Note, the obligation of the Maker, which is unconditional and absolute, to pay to the holder of this Note the principal of
and interest on the Note as and when the same shall become due and payable in accordance with the terms thereof, or to affect the
relative rights of the holder of this Note and creditors of the Maker other than the holders of the Senior Indebtedness, or to benefit any
other creditors of the Maker other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the holder
of this Note from accepting any payment with respect to this Note or exercising all remedies otherwise permitted by applicable law
upon default under this Note, subject to the rights, if any, under this Note of the holders of Senior Indebtedness in respect of cash,
property or securities of the Maker received by the holder of this Note.
(f) Survival of Rights. The right of any present or future holder of Senior Indebtedness to enforce subordination of this Note pursuant
to the provisions of this Note shall not at any time be prejudiced or impaired by any act or failure to act on the part of the Maker or any
such holder of Senior Indebtedness, including, without limitation, any
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61
forbearance, waiver, consent, compromise, amendment, extension, renewal, or taking or release of security of or in respect of any
Senior Indebtedness or by noncompliance by the Maker with the terms of such subordination regardless of any knowledge thereof the
holder may have or otherwise be charged with.
(g) Amendment or Waiver. The provisions of this paragraph may not be amended or waived in any manner which is detrimental to any
Senior Indebtedness without the consent of the holders of a majority of the then existing Senior Indebtedness.
2002. EDGAR Online, Inc.
(h) Senior Indebtedness Defined. For purposes hereof, "Senior Indebtedness" shall mean any and all loans, advances and extensions of
credit by any institutional lender to the Maker, and all other indebtedness, liabilities and obligations, direct or contingent, of the Maker
to such institutional lender, outstanding from time to time (including without limitation any and all indebtedness to such institutional
lender in respect of future loans or advances or extensions of credit make to the Maker by such institutional lender prior to, during or
following any proceeding in respect of any Reorganization), together with interest thereon and all fees, expenses and other amounts
owing to such institutional lender (regardless of the extent to which such amounts are allowed as claims against the Maker in any
Reorganization and including any interest thereon accruing after the commencement of any reorganization and any other interest that
would have accrued thereon but for the commencement of such reorganization) including reasonable attorneys' fees and disbursements
and all other costs incurred to enforce such institutional lender's loan documents. For purposes hereof, any institutional lender shall
also include its successor and assigns.
6. Certain Defined Terms. As used herein, "Business Day" shall mean any day other than a Saturday, Sunday or other day on which
commercial banks in the State of New York are authorized or required to close under the laws of the State of New York.
7. Notices. Except as otherwise expressly provided herein, all notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed delivered (i) two Business Days after being sent by registered or certified mail, return receipt requested,
postage prepaid or (ii) one Business Day after being sent via a reputable nationwide overnight courier service guaranteeing next
Business Day delivery, in each case to the intended recipient at their principal business addresses or at such other address as the
addressee shall have specified by written notice given to the remaining parties. Except as otherwise expressly provided herein, any
party may give any notice, request, consent or other communication hereunder using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it is actually received by the party for whom it is intended.
Notices hereunder shall be addressed to a party which is a party to the Asset Purchase Agreement at the address of such party as
provided in the Asset Purchase Agreement or at such other address as any such party shall have given notice to the other as provided
therein or herein. Notices to any other party shall be addressed to such party at such address as such party shall have given notice as
provided herein. Notwithstanding any other provision of this
8
62
Note, any notice under Section 3(a)(i) shall be effective when given by telecopier with machine confirmation of transmission to the
Maker, if a copy of such notice is also sent to the Maker via a reputable nationwide overnight courier service guaranteeing next
Business Day delivery. Maker's telecopier number is [to be provided].
8. Governing Law. This Note shall be governed by and construed and enforced in accordance with the law of the State of New York.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
9
63
Executed as an instrument under seal as of the date first written above.
[Maker]
By:____________________________ Name:
Title:
Attest:
Clerk
10
64
EXHIBIT C TO
ASSET PURCHASE AGREEMENT
11
65
GUARANTY
2002. EDGAR Online, Inc.
FOR VALUE RECEIVED, the undersigned hereby unconditionally guarantees to Princeton Review of Boston, Inc. ("PRB"), a
Massachusetts corporation, for itself and as agent for Princeton Review of New Jersey, Inc. ("PRNJ"), a New Jersey corporation (PRB
and PRNJ are referred to collectively herein as the "Payee"), and Payee's successors and assigns, and to each subsequent holder of the
Subordinated Promissory Note dated [DATE], payable to the Payee in the original principal amount of $3,125,000 (the "Note"), that
the unpaid principal of and interest (if any) on the Note will be promptly paid when due in accordance with the terms thereof and
agrees that the time for payment of the Note may be extended or waived or the Note may be renewed, all without affecting the liability
of the undersigned hereunder and without notice to the undersigned.
The undersigned hereby agrees that its obligations hereunder shall be unconditional irrespective of the genuineness, validity, legality
or enforceability of the Note or any other circumstances which might otherwise constitute a legal or equitable discharge of a surety or
guarantor and regardless of any law, rule, regulation, decree or order now or hereafter in effect in any jurisdiction purporting to affect
in any manner any of the terms of the Note or the rights of the Payee or any holder thereof with respect thereto.
The liability of the undersigned hereunder shall be reinstated or revived, and the rights of the Payee and of each subsequent holder of
the Note shall continue, with respect to any amount (or portion thereof) at any time paid on the Note which shall thereafter be required
to be restored or returned by the Payee or such holder, as the case may be, upon the bankruptcy, insolvency or reorganization of the
Maker of the Note or for any other reason, all as though such amount (or portion thereof) had not been paid.
The undersigned hereby waives presentment, protest, all notices (whether of nonpayment, dishonor, protest or otherwise) other than
the notice of nonpayment of the Note which the Payee has agreed to provide solely to the Maker of the Note, with respect to the Note,
acceptance of this Guaranty and all demands whatsoever.
If the undersigned completes a transaction under Section 3(b) of the Note and complies with the requirements of that Section, then
upon delivery of the executed Guaranty of the Transferee to the Payee, this Guaranty shall be void except as to any amounts demanded
by Payee from the undersigned before the delivery of the Guaranty of the Transferee.
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66
This Guaranty, and the liability of the undersigned hereunder, shall be construed in accordance with and governed by the laws of the
State of New York.
[NAME OF PARENT/AFFILIATE]
______________________________ By:___________________________ WITNESS Title:
13
67
EXHIBIT D TO
ASSET PURCHASE AGREEMENT
BILL OF SALE
Princeton Review of Boston, Inc., a Massachusetts corporation, and Princeton Review of New Jersey, Inc., a New Jersey corporation
(together, the "Sellers"), in consideration of $1.00 and other valuable consideration paid to them by Princeton Review Operations,
L.L.C., a Delaware limited liability company ("Buyer"), the receipt and adequacy of which are hereby acknowledged, hereby grant,
sell, transfer, and deliver to Buyer title to all of the Assets (as that term is defined in that certain Asset Purchase Agreement dated
___________ by and between the Sellers, Robert L. Cohen, Matthew Rosenthal, Buyer, and Princeton Review Management, L.L.C., a
Delaware limited liability company (the "Asset Purchase Agreement") pertaining to the The Princeton Review(R) businesses operated
by the Sellers.
Buyer shall have all right and title to the Assets in itself and in its designees, successors, and assigns.
The Sellers are the lawful owners of the Assets, and the Assets are free of all encumbrances. Each Seller has good right to sell the
Assets and will warrant and defend that right against all claims and demands on all persons as provided in the Asset Purchase
Agreement.
IN WITNESS WHEREOF, each Seller has executed this Bill of Sale, intending to be legally bound, effective as of _____________,
_______.
2002. EDGAR Online, Inc.
PRINCETON REVIEW OF BOSTON, INC.
By:_________________________________________
President
PRINCETON REVIEW OF NEW JERSEY, INC.
By:_________________________________________
President
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EXHIBIT E TO
ASSET PURCHASE AGREEMENT
SELLERS' CERTIFICATE
THE UNDERSIGNED, the Presidents of Princeton Review of Boston, Inc., a Massachusetts corporation, and Princeton Review of
New Jersey, Inc., a New Jersey corporation (together, the "Sellers"), in accordance with Section 7.7 of that certain Asset Purchase
Agreement dated ___________ by and between the Sellers, Robert L. Cohen, Matthew Rosenthal, Princeton Review Operations,
L.L.C., a Delaware limited liability company, and Princeton Review Management, L.L.C., a Delaware limited liability company (the
"Asset Purchase Agreement"), hereby certify and warrant that:
1. All representations and warranties of the Sellers and the Stockholders contained in the Asset Purchase Agreement are true as of the
date of execution of this Certificate.
2. Each Seller has performed all agreements on its part required under the Asset Purchase Agreement to be performed on or before the
Closing Date (as defined in the Asset Purchase Agreement).
3. Neither Seller is in default under any of the provisions of the Asset Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate under seal this ___ day of __________,_______.
PRINCETON REVIEW OF BOSTON, INC.
By:__________________________________ (Seal)
President
PRINCETON REVIEW OF NEW JERSEY, INC.
By:__________________________________ (Seal)
President
69
EXHIBIT F TO
ASSET PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF CERTAIN AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is entered into effective as of ________________ by
and between Princeton Review of Boston, Inc. and Princeton Review of New Jersey, Inc. (together, the "Assignors"), and Princeton
Review Operations, L.L.C. ("Assignee").
RECITAL
This Agreement is entered into pursuant to the terms of that certain Asset Purchase Agreement dated ______________ by and among
the Assignors, Assignee, Robert L. Cohen, Matthew Rosenthal, and Princeton Review Management, L.L.C. (the "Purchase
Agreement"). For purposes of this Agreement, the term "Assumed Contracts" shall mean the agreements listed in Schedule 1.2.9 to the
Purchase Agreement.
2002. EDGAR Online, Inc.
1. Assignment. For good and valuable consideration received by the Assignors, the receipt and sufficiency of which are hereby
acknowledged, the Assignors hereby grant, transfer, and assign to Assignee all of the Assignors' right, title and interest in and to each
of the Assumed Contracts.
2. Assumption. Assignee hereby assumes, and agrees to be bound by, all of the covenants, agreements, and obligations of the
Assignors under the Assumed Contracts which arise or are incurred, or are to be performed, on and after the date of this Agreement.
3. Binding Effect. This Agreement shall inure to the benefit of and be binding upon each of the parties and their respective successors
and assigns.
4. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Assignors and Assignee have executed this Agreement, intending to be bound legally.
PRINCETON REVIEW OF BOSTON, INC.
By:
President
PRINCETON REVIEW OF NEW JERSEY, INC.
By:
President
PRINCETON REVIEW OPERATIONS, L.L.C.
By:
Mark Chernis
Chief Operating Officer
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EXHIBIT G TO
ASSET PURCHASE AGREEMENT
MUTUAL RELEASE
THIS MUTUAL RELEASE is entered into effective as of ______________, ____ by and between Princeton Review of Boston, Inc.
and Princeton Review of New Jersey, Inc. (together, the "Sellers"), and Robert L. Cohen, Matthew Rosenthal, and Joel Rubin
(together, the "Stockholders"), on the one hand; and Princeton Review Management, L.L.C. ("Franchisor"), Princeton Review
Operations, L.L.C. ("Buyer"), and Princeton Review Products, L.L.C. ("Products"), on the other hand.
WHEREAS the Sellers, Robert L. Cohen, Matthew Rosenthal, Buyer, and Franchisor are parties to an Asset Purchase Agreement
dated ___________ (the "Asset Purchase Agreement") pursuant to which Buyer is acquiring substantially all of the assets of the The
Princeton Review(R) businesses operated by the Sellers (the "Franchised Businesses");
WHEREAS, pursuant to the Asset Purchase Agreement, the parties are obligated to execute and deliver this Mutual Release as a
condition of closing of the purchase and sale of the Businesses;
NOW, THEREFORE, the parties agree as follows:
1. Release by the Sellers and the Stockholders. Except as provided in Paragraph 3 below, the Sellers and the Stockholders, for
themselves and their respective successors, assigns, heirs, personal representatives, and all other persons acting on their behalf or
claiming under them, hereby release Franchisor, Buyer, Products, and their respective past, present, and future officers, directors,
members, agents, employees, attorneys, insurers, successors, and assigns from any and all actions, causes of action, suits, claims,
damages, expenses, judgments, or demands, which any Seller or Stockholder may have ever had, now has, or may ever have based on
any transaction, event, or circumstance prior to the effective date of this Mutual Release.
2002. EDGAR Online, Inc.
2. Release by Franchisor, Buyer, and Products. Except as provided in Paragraph 3 below, Franchisor, Buyer, and Products, for
themselves and their respective successors and assigns and all other persons acting on their behalf or claiming under them, hereby
release each Seller and Stockholder, their affiliates, and their respective past, present, and future officers, directors, shareholders,
agents, employees, attorneys, insurers, successors, assigns, heirs and personal representatives from any and all actions, causes of
action, suits, claims, damages, expenses, judgments or demands, which Franchisor, Buyer, or Products may have ever had, now has, or
may ever have based on any transaction, event, or circumstance prior to the effective date of this Mutual Release.
72
3. Exceptions.
a. Paragraphs 1 and 2 do not release any person or entity from: (i) any of their representations or obligations under the Option
Agreement, the Asset Purchase Agreement, the Note, the Guaranty, or any other documents executed in connection with the Asset
Purchase Agreement, including but not limited to the parties' respective indemnification obligations under the Asset Purchase
Agreement and such of their obligations under the Franchise Agreements as are specified in the Asset Purchase Agreement to survive
the Closing; or (ii) any claim or liability arising from a breach of the representations and obligations referred to in clause (i).
b. Paragraphs 1 and 2 do not release any person or entity from: (i) any obligation under the Conversion and Contribution Agreement
dated April ____, 2000, the Stockholders Agreement dated _____________, or any other contractual arrangement or statutory
provision relating to the ownership of the Stock; or (ii) any claim that a person or entity may have by virtue of its status as a direct or
indirect owner of Stock, provided that, each of the Sellers and the Stockholders covenants that he or it will not assert any claim
alleging that an act or decision by Franchisor, Buyer, or Products (or by any person controlling Franchisor, Buyer, or Products) was
adverse to his or its former interest in The Princeton Review Publishing Company, L.L.C. if such act or decision was made in the good
faith judgment that the act or decision was in the best overall business interests of The Princeton Review(R) franchisees, separately or
as a group.
4. No prior assignment. The Sellers, the Stockholders, Franchisor, Buyer and Products each represent and warrant that they are the sole
owners of all claims and rights released by each of them hereunder and that they have not assigned or transferred, or purported to
assign or transfer, to any person or entity, any claim, demand, suit, action, or cause of action released by each of them under
Paragraphs 1 or 2 above.
5. Complete defense. The parties to this Mutual Release acknowledge that this Mutual Release will be a complete defense to any claim
released under Paragraphs 1 or 2 above; and hereby consent to the entry of a temporary or permanent injunction to prevent or end the
assertion of any such claim.
6. Successors and Assigns. This Mutual Release will inure to the benefit of and bind the successors and assigns of each party to this
Mutual Release.
7. Applicable law. This Mutual Release shall be governed by and construed under the laws of the State of New York, without giving
effect to New York conflict of law principles.
[Signature pages follow.]
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73
IN WITNESS WHEREOF, the parties have executed this Mutual Release by their duly authorized representatives.
PRINCETON REVIEW OF BOSTON, INC.
By:_____________________________________
President
PRINCETON REVIEW OF NEW JERSEY, INC.
By:_____________________________________
President
ROBERT L. COHEN, Individually
2002. EDGAR Online, Inc.
MATTHEW ROSENTHAL, Individually
JOEL RUBIN, Individually
[Signatures continued on following page.]
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PRINCETON REVIEW MANAGEMENT, L.L.C.
By:_____________________________________
Mark Chernis
Chief Operating Officer
PRINCETON REVIEW OPERATIONS, L.L.C.
By:_____________________________________
Mark Chernis
Chief Operating Officer
PRINCETON REVIEW PRODUCTS, L.L.C.
By:_____________________________________
Mark Chernis
Chief Operating Officer
4
1
EXHIBIT 3.1.1
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE PRINCETON REVIEW, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is The Princeton Review, Inc.
2. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by striking out paragraph (A) of
Article Fourth thereof and by substituting in lieu of said paragraph A the following new paragraph:
FOURTH. (A): The total number of shares of stock the Corporation shall have authority to issue is (i) 25,000,000 shares of Class A
Voting Common Stock, $.01 par value per share ("Class A Common Stock"), (ii) 10,000,000 shares of Class B Non-Voting Common
Stock, $.01 par value per share ("Class B Non-Voting Common Stock") and together with the Class A Common Stock, ("Common
Stock"), and (iii) 5,000,000 shares of Series A Preferred Stock, $.01 par value per share ("Series A Preferred Stock"). Each one share
of authorized Common Stock issued and outstanding or standing in the name of the Corporation at the close of business on the date of
filing and recording (the "Effective Time") of this Certificate of Amendment of Certificate of Incorporation of the Corporation (the
"Amendment") with the Secretary of State of the State of Delaware shall thereupon automatically be reclassified and changed into
0.846 validly issued, fully paid and nonassessable shares of Common Stock of such share's class prior to such reclassification (the
"Stock Combination"). The effect of all other amendments set forth in this Amendment shall take place prior to the Stock Combination
2002. EDGAR Online, Inc.
and the Effective Time. Each holder of record of shares of Common Stock to be so reclassified and changed shall at the Effective
Time become the record owner of the number of shares of Common Stock as shall result from such reclassification and change. Each
such record holder shall be entitled to receive, upon the surrender of the certificate or certificates representing the shares of Common
Stock to be so reclassified and changed at the office of the Corporation in such form and accompanied by such documents, if any, as
may be prescribed by the officers of the Corporation, a new certificate or certificates representing the number of shares of Common
Stock of which it, he or she is the record owner after giving effect to the provisions of this paragraph. The Corporation shall not issue
fractional shares with respect to the reclassification and change, and instead shall in lieu of any fractional share of Common Stock
which would otherwise result, issue to the holder entitled thereto one whole share of Common Stock, which share shall be validly
issued, fully paid and nonassessable.
2
3. The Amended and Restated Certificate of the Corporation is hereby amended by striking out subparagraph (a) of Section 4 of
paragraph (C) of Article Fourth thereof and by substituting in lieu of said subparagraph (a) the following new subparagraph:
(a) Right to Convert. Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, into such number
of fully paid and nonassessable shares of Class A Common Stock as is determined (i) by dividing the Initial Purchase Price by the
Conversion Price (as defined below) in effect at the time of conversion in all cases other than in the case of an Adjustment IPO (as that
term is defined in Section 4(d)(ix) below) and
(ii) at the rate described in Section 4(d)(ix) in the event of an Adjustment IPO. The conversion Price at which shares of Class A
Common Stock shall be deliverable upon conversion of Series A Preferred Stock without the payment of additional consideration by
the holder thereof ("Conversion Price") shall initially be $6.40. Such initial Conversion Price, and the rate at which shares of Series A
Preferred Stock may be converted into shares of Class A Common Stock, shall be subject to adjustment as provided below.
4. The Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by striking out the introductory
paragraph of clause (ix) of subparagraph (d) of Section 4 of paragraph (C) of Article Fourth thereof and by substituting in lieu of said
paragraph the following new introductory paragraph:
(ix) Certain Adjustments in Connection with the Pricing of an Adjustment IPO. In the event that the Corporation is effecting a sale of
its Common Stock in a QIPO (as defined in Section 5 below) at a public offering price per share of less than the product of (x) the
Initial Purchase Price and
(y) 1.5115 (subject to appropriate adjustment, including any stock split, stock dividend or capitalization after the date of the first
issuance of the Series A Preferred Stock) (an "Adjustment IPO"), then, immediately prior to the consummation of such sale and
notwithstanding the Conversion Price in effect at such time, the Series A Preferred Stock shall automatically convert into shares of
Class A Common Stock in accordance with the following:
5. The amendment of the Certificate of Incorporation of the Corporation hereby certified has been duly adopted and written consent
has been given in accordance with the provisions of Section 228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by John Katzman, its Chairman and CEO, this
16th of November 2000.
The Princeton Review, Inc.
By: /s/ John Katzman
______________________
John Katzman
Chairman &CEO
1
Exhibit 10.7.1
September 26, 2000
Mr. John Katzman
2002. EDGAR Online, Inc.
Chairman
The Princeton Review, Inc.
2315 Broadway
New York, NY 10024
Dear John,
We are pleased to advise you that based upon your annual financial statements for the fiscal year 1999, The Chase Manhattan Bank
(the "Bank") has approved your request for a line of credit in the aggregate amount of $1,500,000. Our officers may, at their
discretion, make short term loans to The Princeton Review Operations, LLC on such terms as are mutually agreed upon between us
from time to time.
Borrowings under this line are intended to be used to meet your normal short term working capital needs and will bear interest at such
a rate as shall be mutually agreed upon by each of us from time to time.
All loans under this line of credit are subject to the requirement that for 30 consecutive days prior to the expiration hereof there shall
be no loans outstanding.
This line will carry an annual administrative fee of $15,000 payable semi-annually. As this line is not a commitment, credit availability
is, in addition, subject to your execution and delivery of such documentation as the Bank deems appropriate and the receipt and
continuing satisfaction with the current financial information (including without limitation audited annual and unaudited quarterly
financial statements, promptly prepared and received), which information will be furnished to the Bank as it may from time to time
reasonably request, and continuing satisfaction with your financial condition, business affairs and prospects. This line expires on June
30, 2001.
We are pleased to be of service and trust you will call upon us to assist in any of your banking requirements.
Very truly yours,
/s/ Walter P.
Drury
WPD/bm
cc: Steve Melvin
Chief Financial Officer
1
Exhibit 10.36
AGREEMENT
AGREEMENT (this "Agreement"), made effective September 1, 1998, between The Educational and Professional Publishing Group,
a unit of The McGraw-Hill Companies, Inc., ("McGraw-Hill"), a New York corporation, with an office located at 936 Eastwind Drive,
Westerville, OH 43081 ("EPG"), and the Princeton Review Publishing L.L.C., a Delaware limited liability company with an office
located at 2315 Broadway, 2nd Floor, New York, NY 10024 ("TPR").
WITNESSETH:
WHEREAS, EPG and TPR are each publishers of proprietary educational materials, and
WHEREAS, EPG and TPR intend to establish a long-term relationship, in which TPR provides consulting services and creative
materials which help relate EPG's textbooks to state and national exams through editing of those textbooks and creation of workbooks,
2002. EDGAR Online, Inc.
seminars, and possibly an online product under a separate agreement.
NOW THEREFORE, EPG and TPR agree as follows:
I. DEFINITIONS
Any capitalized term (or grammatical variant) that appears in this Agreement is defined as follows:
A. "Deliverable" means any item that a Project Agreement specifies that TPR is required to deliver.
B. "Display," and "Work Made for Hire" have the same definitions that those terms have in the U. S. Copyright Act, 17 U. S.
C.Section 101, as amended.
C. "Divisions" means the following divisions of EPG:
Glencoe/McGraw-Hill, SRA/McGraw-Hill, CTB/McGraw-Hill, and the McGraw-Hill School Division.
D. "Educational Market" means educational institutions of all types, public and private, at all grade levels, including pre-school,
elementary school, middle, junior and senior high school, and all customer types located therein, including students "taught at home,"
and all K-12 marketing channels of distribution within which EPG directs its marketing and selling efforts. The Educational Market
excludes the retail consumer market, the educational trade book market, the 2- and 4-year college market, and the professional book
market channels of distribution related to the foregoing markets.
2
E. "McGraw-Hill Materials" means all educational materials including text, computer programs, pictorial or graphic works,
know-how, pedagogy, methods, and other works, which McGraw-Hill provides to TPR for inclusion in a Textbook or Workbook.
F. "Textbook" means textbooks, both student and teacher editions, that any EPG Division publishes for the Educational Market and
which TPR supports, e.g. the Textbook contains TPR Textbook Contributions or any part of the Question Pool, has received TPR
Editorial Review, or contains any TPR Mark or a reference to the association with TPR or it is sold using the association with TPR as
part of the advertising or promotional program; or EPG distributes a related Workbook; or TPR provides a related Training Seminar or
online product.
G. "TPR Materials" means all educational text, computer programs, pictorial or graphic works, questions, know-how, pedagogy,
methods, and other creative works, which result from TPR's services under this Agreement or the Project Agreements.
H. Each of the following terms is defined in the Section set forth next to it:
2002. EDGAR Online, Inc.
Acceptance IV.E
Approval Period IV.E
Brand Fee V.C
Change Order IV. C
Confidential Information XVII.B
Derivative Questions II.B.4
Design Document III.A
Educational Publisher XVI.A.
EPG Marks IX.A
EPG Programs V.D.1
Net Sales V.D.6
North America VIII.C
Online Product
III.B.6
Project IV.A
Project Agreement IV.A
Project Manager IV.B
Question Pool II.B.4
Specification IV.A
Third Party Materials VIII.A
TPR Editorial Review II.B.l
TPR Marks IX.A
TPR Textbook Contributions II.B.2
Trademark Materials XI.B
Trademarks IX.A
Training Seminars II.B.5
Workbooks II.B.3
2
3
II. THE PARTIES' PERFORMANCE OBLIGATIONS
A. EPG's responsibilities include the following:
1. prepare Textbooks in accordance with EPG's business judgment, and, unless otherwise agreed, publish them within eighteen (18)
months of Acceptance of TPR's Deliverable agreed under a Project Agreement for that particular Textbook, in such style and manner,
under any imprint of any EPG Division and at a price EPG deems in the best interest of such Textbook; and keep the Textbooks in
print for as long as EPG deems appropriate. EPG's good faith determination of the schedule for, and timing of, publication will be
binding on TPR. If a Textbook is being prepared in anticipation of an adoption, and the adopting agency postpones or otherwise
delays the adoption, the eighteen- (18-) month period referenced above will be extended for a corresponding period;
2. print, publish and sell Workbooks created by TPR, either alone or bundled with each Workbook's corresponding Textbook;
3. contribute McGraw-Hill Materials for TPR's use in the creation of TPR Textbook Contributions and Workbooks;
4. contribute to the Question Pool * questions from its CTB Division in the same subject matters and in approximately the same
relative percentages for each subject matter as the questions that TPR is creating under Paragraph II.B.4;
5. arrange and schedule Training Seminars through EPG's Regional Sales Offices;
6. sell and market the Online Product, if the parties decide to develop it.
B. TPR's responsibilities include the following:
1. review, within the limits of its available resources as TPR will decide in its sole discretion, the first page proofs, in whole or in part,
of pupil and teacher editions of EPG-prepared Textbooks and offer oral or written comments and suggestions for ensuring that sample
test questions and other testing information contained in them is accurate and aligned with state or national standards ("TPR Editorial
2002. EDGAR Online, Inc.
Review"). TPR will inform EPG if it declines to perform TPR Editorial Review in whole or in part, but if it performs, it will report to
EPG as part of the Project Agreement the
3
4
number of pages it will review. TPR Editorial Review is intended to enhance, not replace, EPG's normal editorial and fact-checking
procedures and will be completed in accordance with a schedule to be agreed upon in writing by the parties;
2. prepare one-color pages and other contributions for Textbooks, which may include TPR Materials and McGraw-Hill Materials
("TPR Textbook Contributions");
3. prepare Workbooks in print format, each of which will refer to a particular Textbook, or review and revise existing EPG workbooks
("Workbooks");
4. create a pool of test questions that can be used by students in grades 2-12 to practice for the major state and national exams (the
"Question Pool") and, subject to EPG's determination in Section V.B.4, support the Question Pool so as to keep it technically
up-to-date and able to accommodate minor changes to the exams. The initial Question Pool will include * questions that EPG
contributes from its CTB Division, * questions from TPR's then-current and future inventory, and * that TPR will create (at least * for
each of math and language arts and at least * for each of science and history) on the schedule set out in the attached Exhibit A. If TPR
creates a question by electronically altering a question from one test so that it conforms to the appropriate format of a new test, TPR
will count the new question as * of a question for the purpose of meeting its quota of questions; if TPR creates a question by manually
altering a question from one test so that it conforms to the appropriate format of a new test, TPR will count the new question as * of a
question for the purpose of meeting its quota of questions. All such altered questions shall be known as "Derivative Questions." Each
question in the Question Pool will be tagged so as to identify whether it was created by TPR, contributed by TPR, contributed by CTB
Division, or, if a Derivative Question, from what question it was derived. The major states are Texas, California, Florida, Virginia, and
North Carolina, and the major exams are the SAT, ACT, CTBS, Terra Nova, SAT9, and ITBS. If the parties agree, the Question Pool
may be expanded to include other states or tests;
5. prepare and conduct pre-service, in-service, and other seminars for teachers and administrators about state or national tests, at times
and locations as the parties agree ("Training Seminars"); EPG shall have the right, pursuant to a Project Agreement, to review the
format, content, and materials that TPR uses for the Training Seminars, and TPR will conduct Training Seminars only with the request
and prior approval of the appropriate EPG Regional Sales Office;
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6. sell and market the Online Product, if the parties decide to develop it.
III. DEVELOPMENT OF THE ONLINE PRODUCT
A. Design Document. EPG will pay * toward the creation of a design document which contains specifications, features, schedules, and
cost estimates for an online product for students, their parents, and teachers that complements the Textbooks ("Online Product") to be
delivered through the Internet ("Design Document").
B. Delivery and Approval. Not later than three days after execution of the Agreement, TPR will deliver the Design Document, which
will include TPR's proposed price for the Online Product and a yearly base online fee. After TPR's delivery of the Design Document,
EPG will have up to forty-five (45) days in which to decide whether to proceed with the Online Product at TPR's price. If EPG elects
to go forward, the parties will enter into a separate agreement.
C. Option. If EPG elects not to proceed with the Online Product, TPR will be free to negotiate with a third party for publication of the
Online Product based on the Design Document, except that if TPR negotiates such a deal within the six (6) months following EPG's
rejection of TPR's offer for a price that is less than the price that EPG rejected, TPR must again offer publication to EPG at that price,
and EPG will have ten (10) days in which to accept it.
D. If EPG elects not to go forward with the Online Product, TPR will own all rights including copyright in the Design Document. If
TPR publishes the Online Product with another entity, TPR will repay EPG * from the first proceeds of that publishing venture; if TPR
publishes the Online Product itself, TPR will repay EPG * which will be offset against the royalties due under Section V.D.1 in three
equal amounts over the three years following TPR's publication.
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IV. PROJECT AGREEMENTS AND PROJECT MANAGERS
A. Project Agreements. TPR Editorial Review, TPR Textbook Contribution, Workbook, Training Seminar, Question Pool, and, if
developed, Online Product (collectively or singly, "Project") must be the subject of a Project Agreement that conforms to the Sample
Project Agreement attached to this Agreement as Exhibit B and incorporated in it ("Project Agreement"). No Project Agreement is
effective unless signed by both parties. "Specifications" refers to all the information contained in a Project Agreement or a Change
Order. No Specification in a Project Agreement that conflicts with a provision of this Agreement is valid, unless the Project
Agreement is signed by an officer of each of the parties.
B. Project Manager. Each party must designate a "Project Manager" for each Project Agreement. Each of the Divisions is entitled to
negotiate and enter into Project
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Agreements with TPR. EPG's Project Manager will initiate Project Agreements. Project Managers will be responsible for managing
each party's performance under a Project Agreement. Project Managers will coordinate and facilitate communication between the
parties, direct activity for their respective parties, send and receive notices, schedule meetings, review and accept Deliverables and the
performance of services, and authorize payments, among other management duties.
C. Change Orders. Material changes in the Specifications of a Project Agreement or for any material aspect or detail related to the
performance of a Project, including changes in Deliverables, schedule dates, payment amounts, or other matters will be made by use of
a Change Order that conforms to the Sample Change Order attached to this Agreement as Exhibit C ("Change Order"). A Change
Order will become part of the Project Agreement that it modifies, and will become effective only when it is signed by each party's
Project Manager for the Project Agreement that it modifies, but no Specification in a Change Order that conflicts with a provision of
this Agreement is valid, unless the Change Order is signed by an officer of each of the parties.
D. Progress Reports. Project Managers will notify each other promptly of any factor, occurrence, or event that may affect the party's
ability to meet the Specifications of a Project Agreement or that is likely to occasion any material delay or accelerate completion of the
Project. As reasonably requested, TPR's Project Manager will provide EPG from time to time with oral or written reports on the
progress of services performed and required under each Project Agreement. Unless EPG gives notice of dissatisfaction within five (5)
business days of TPR's report, TPR will be entitled to assume that its progress is satisfactory to EPG, and EPG will not later claim lack
of Acceptance based on circumstances of which it was notified but did not object.
E. Acceptance. TPR will deliver any Deliverable for any Project in accordance with the applicable Project Agreement, including
timetables. The Deliverables for any Project including electronic files and/or camera-ready copy shall be prepared in accordance with
professional standards in the trade. "Acceptance" means that EPG has determined in its reasonable judgment that a Deliverable or
TPR's services meet the agreed Specifications in the applicable Project Agreement and this Agreement, or EPG's Project Manager has
allowed the Approval Period to pass without rejecting TPR's Deliverables or services. The "Approval Period" will be a reasonable
period to keep the Project on schedule, generally not to exceed 14 days after TPR's delivery of a Deliverable.
F. Non-Acceptance. If EPG determines that a Deliverable or service is not Acceptable, EPG will so notify TPR within the Approval
Period specifying to the
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extent practical, how and to what extent, the Deliverable or service is deficient and how it should be modified in order to make it
Acceptable. TPR will make changes in the Deliverable or provide additional services at its own cost to make the Deliverable or
services Acceptable and re-deliver the revised Deliverable to EPG. EPG will indicate its Acceptance of the revised Deliverable
according to the procedure established for Acceptance of any Deliverable.
G. Deliverables and Services that are Not Acceptable. If TPR fails to modify or correct Deliverables or services or if, after
modification, they are still not Acceptable to EPG, EPG will have the right, in its sole discretion:
1. to permit TPR to finish, correct or improve any unsatisfactory Deliverable of a Project by a reasonable date specified by EPG, or
2. either as an alternative or in addition to TPR's revision under (1) above, to make arrangements with third persons or entities, as EPG
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may select, to correct, revise and complete the Deliverable so as to make it Acceptable to EPG. In that event, EPG may charge the
reasonable cost of such arrangements to TPR from funds due to TPR under this Agreement giving TPR credit for any savings EPG
may have realized, but the costs of those changes charged to TPR will not exceed the monies due TPR for the applicable Project
Agreement.
V. PAYMENT FOR PROJECTS AND ROYALTIES
A. Payment Authorization. No royalty or other compensation will be due or payable to TPR in relation to any Project or the exercise
of any rights, except as is expressly provided in this Agreement as duly amended or in a Project Agreement or Change Order.
B. Project Fees.
1. For TPR's services in connection with the TPR Textbook Contributions and Workbooks, EPG shall pay TPR * per one-color page.
The payment may vary upwards upon mutual agreement reflected in a Project Agreement depending on factors such as increased
complexity, additional colors, and, in future years, inflation based on the Consumer Price Index. The payment may also vary
downwards upon mutual agreement if the TPR Workbook or the TPR Textbook Contributions require only minor revisions due to
small changes in a state test or in the related Textbook. Unless otherwise provided in the Project Agreement, EPG shall pay TPR half
of the fee due under each Project Agreement upon signature, and the remainder within 45 days of TPR's final delivery of the
Deliverable under any Project Agreement unless the Deliverable is rejected within the Approval Period.
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EPG's final payment will not by itself be deemed Acceptance of the Deliverable if the Deliverable has been rejected during the
Approval Period, and EPG shall have a right to set off against amounts due to TPR under this Agreement any final payment made on a
Deliverable that is not Accepted within the Approval Period. TPR acknowledges receipt from EPG of a pre-payment of * toward the
services under this provision.
2. For TPR's services in connection with TPR Editorial Review where there has been review only and no TPR Textbook Contribution,
EPG shall pay TPR * for each edited page that EPG submits to TPR for review.
3. For conducting Training Seminars, EPG shall pay TPR monthly * per full-day seminar and * per half-day seminar, plus
reimbursement of costs for travel, lodging, and meals, upon submission of reasonable proof of expenditures over $50 in accordance
with EPG's reimbursement policies and practices, and the TPR regional office will invoice EPG's local regional sales office directly
for such services and costs. EPG is responsible for invoicing and collections from customers.
4. Question Pool. Under a Project Agreement under this Agreement for TPR's preparation of * questions as provided in Paragraph
II.B.4, EPG will pay a total of * according to the following schedule: for contract year * for contract year * and for contract year * The
payment for the 1998-99 contract year is due upon execution of this Agreement, and subsequent payments are due on the anniversary
date of this Agreement. In addition, EPG will pay TPR * annually at the beginning of each contract year in order to support the
Question Pool, except that after the first year and on six (6) months' notice, EPG may discontinue the * support fee if it reasonably
concludes that continued support of the Question Pool is unnecessary to its continued usefulness. The first annual fee will be due upon
execution of the Agreement. If new questions are required because of changed circumstances such as new tests, they will be prepared
under separate Project Agreements that include an agreed fee.
C. Brand Fee. Within 45 days of December 1, 1998, and within 45 days of December 1 of each subsequent year of the contract, EPG
will pay TPR for use of the TPR Trademarks on materials in the EPG Programs as follows: *
D. Royalties.
1. During the term of the Agreement, EPG shall pay TPR the following royalties based upon net sales of all components of all EPG
Programs except those listed on Exhibit D, which may be amended by mutual consent, and upon net sales of any Textbook or
Workbook with a
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copyright date earlier than EPG Programs, to which TPR has contributed or which it supports in any way:
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a. For all language arts programs, *
b. For all non-language arts programs, *
An "EPG Program" means each program for the math subject area beginning with those bearing a 1999 copyright date and each
program for the social studies, science, reading/literature, and language arts subject areas beginning with those bearing a 2000
copyright date, which are published by the Glencoe/McGraw-Hill and McGraw-Hill School Divisions and the Open Court Reading
and Open Court Math programs of the SRA/McGraw-Hill Division. Notwithstanding the foregoing, EPG Programs do not include the
1999 Glencoe/McGraw-Hill "Math Applications and Connections" math program outside of Texas unless TPR later contributes or
supports it in some way.
2. As soon as EPG establishes its divisional sales projections, it will provide TPR with the sales goals (in dollars) for the EPG Program
that make up those projections, which shall constitute Confidential Information under Section XVII.
3. If an EPG Program exceeds its sales goal, EPG will pay an additional royalty as follows:
a. for those net sales that are more than * and less than or equal to * the above goal, an increase of * ,
b. for those net sales that are more than * and less than or equal to * the above goal, an increase of * and
c. for those net sales that are more than * the above goal, an increase of *
4. If an EPG Program fails to meet its sales goal, the royalty rate otherwise payable to TPR on such EPG Program shall be reduced as
follows:
a. if such net sales are less than * of that EPG Program's goal but not less than * of goal, a reduction of * ,
b. if such net sales are less than * of that EPG Program's goal but not less than * of goal, a reduction of * ,
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c. if such net sales are less than * of that EPG Program's goal, a reduction of *
5. After the termination or expiration of this Agreement, EPG will continue to pay TPR royalties at the rates stated in Sections V.D.1
and D.6 for any EPG Program to which TPR contributed in any way during the term of the Agreement.
6. In any contract year, the royalty amounts due TPR will not exceed *
7. Notwithstanding the foregoing royalty obligations, on all copies of any elements of the EPG Programs sold at a * forth in Section
V.D.1 above.
8. No royalties are payable for the following: copies of a Textbook or any component of an EPG Program, distributed or disposed of at
or below cost, including copies provided in connection with the sale of other copies; copies furnished for review, publicity, promotion,
sample or similar purposes, or for charitable or other public purposes; or for copies furnished gratis to TPR or to others at TPR's
request. For purposes of this provision, copies sold or distributed or disposed of at a discount of * or more from the lowest state
adoption price of the Textbook, shall be deemed sold below cost.
9. As used in this Section, V.D, "net sales" means, with respect to EPG's sales, the net cash amount actually received by EPG from
each copy sold of any component or material in the EPG Programs or, after the termination of the agreement, any Textbook, not
credited for return, after discounts, any depository charges and exchange allowances.
10. Beginning after publication of the first Textbook, EPG will render royalty statements in April and October for semi-annual
accounting periods ending December 31, and June 30 of each year in accordance with its regular practices. Each statement will be
accompanied by payment of monies shown to be due after recoupment of amounts payable as recoverable advances, if any.
11. EPG's failure to pay the Brand Fee, royalties, or Project Fees when due, unless excused by TPR, is a material breach of the
Agreement, entitling TPR, in addition to all other remedies, to terminate the Agreement.
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VI. AUDITING
Each party shall keep and maintain accurate books and records with respect to financial
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transactions relating to this Agreement. Where financial figures have been agreed upon as an element of this Agreement or a Project
Agreement, each party and its agents shall have audit rights and access to the other's books and records limited to those financial
figures, upon reasonable notice, at reasonable intervals, to determine the accuracy of such financial figures and the royalties due under
this Agreement or any Project Agreement. Such examination shall be at the examining party's expense unless it discovers accounting
errors of more than four percent (4%) to its disadvantage for any single accounting period, in which case, the examined party will pay
the reasonable costs of the audit.
VII. COPYRIGHT AND LICENSES
A. Ownership. EPG and TPR agree as follows concerning ownership and the respective rights and licenses of each party:
1. McGraw-Hill Materials. As between McGraw-Hill and TPR, McGraw-Hill owns or controls all rights, including copyright in
McGraw-Hill Materials, unless otherwise stated in writing by EPG. EPG may provide TPR with McGraw-Hill Materials, at EPG's sole
cost, for use in or in connection with any Project, together with the right to adapt the McGraw-Hill Materials for the purposes of this
Agreement as stated in a relevant Project Agreement.
2. TPR Materials. As between TPR and EPG, TPR owns or controls all rights, including copyright, in TPR Materials.
3. TPR Editorial Review. TPR Textbook Contributions and Workbooks. Except for TPR Material that is contained in the Question
Pool, Online Product, if developed, and Training Seminars and subject to Section XIII.B, all TPR Materials created in performing the
TPR Editorial Review, and contained in the TPR Textbook Contributions and the Workbooks have been specially commissioned by
EPG as Works Made For Hire, and EPG shall be considered the author and the owner of the copyright in them for all time everywhere
in the world. If it is determined that the TPR Materials that EPG has commissioned as Works Made For Hire are not Works Made For
Hire, then as of the date of this agreement and subject to Section XIII.B, TPR hereby assigns them to EPG outright and forever
throughout the world.
4. Question Pool. TPR and EPG jointly own all right, title and interest in the TPR Question Pool, including copyright, except that (a)
the TPR questions contributed from TPR's inventory and Derivative Questions based on them shall remain the property of TPR, and
(b) any questions supplied by CTB and Derivative Questions based on them shall remain the property of CTB.
5. TPR Training Seminars. TPR owns all right, title and interest, including
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copyright, in the Training Seminars.
6. EPG is not authorized to revise any Textbook or any component of an EPG Program using any TPR Materials or TPR Marks in
which TPR owns rights without entering into a new agreement with TPR. Nothing shall prevent EPG from revising any Textbook or
component of an EPG Program without use of TPR Materials or TPR Marks.
B. Copyright Notices. EPG and TPR will publish respectively EPG Programs and Textbooks (EPG) and Training Seminars and, if
developed, the Online Product (TPR) with copyright notices in conformity with United States copyright law and the Universal
Copyright Convention, including notice of the other's copyright in any TPR Materials or McGraw-Hill Materials. After publication,
each party may, but is not obligated to, register copyright in its respective works in its own name (or, for EPG, the name of one of the
Divisions). Each party is authorized to execute all documents necessary to register copyright or to extend the copyright in any manner
provided by law anywhere in the world, but is not obligated to do so.
C. Further Documents. Each party agrees to execute any document the other party deems necessary to evidence, perfect, record, or
otherwise confirm the rights transferred or licensed under this Agreement.
D. EPG Use of TPR Ideas, Concepts. Any other provision of this Agreement notwithstanding, in connection with its performance
2002. EDGAR Online, Inc.
under this Agreement, EPG and TPR may each use any ideas, concepts, approaches, suggestions and other similar material suggested
or communicated by the other without additional credit or additional compensation of any kind.
E. Other Publishing Ventures. Without limitation of any of the foregoing grants and licenses of this Section VII and so long as EPG
itself receives no revenues, EPG may, without any additional compensation to TPR, itself publish or license others:
1. to publish any component of an EPG Program, including any TPR Materials in whole or in part, in forms and special formats for the
handicapped, such as Braille and recordings for the reading impaired, throughout North America in the English or Spanish language, if
applicable rights have been cleared and special editions of the Textbook, for use in special programs for the learning disadvantaged;
2. to use selected portions of an EPG Program, including TPR Materials for publicity or promotional purposes for the EPG Programs
in print format and on radio and television broadcasts; and
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3. to publish in any form, excerpts, summaries, and serializations of any part of an EPG Program, including Textbook and TPR
Textbook Contributions in audiovisual, computer, or other versions of the Textbooks, only for use in connection with or to assist in use
of a version of the Textbooks or in advertising and promotion of a version of the Textbooks, provided that TPR has reviewed them and
TPR will not unreasonably refuse a request to do so.
4. Display on Closed Circuit Cable Systems. EPG may license others, free of charge, to Display and transmit any part of an EPG
Program, in whole or in part, including any Textbook or Textbook Contribution, by means of closed circuit cable systems intended
primarily for educational purposes.
VIII. LICENSED THIRD-PARTY MATERIALS
A. TPR will obtain written, non-exclusive licenses to include in Projects any third-party material included in the TPR Materials that is
still in copyright as well as any other material for which permission is necessary in connection with TPR's warranties in Section XIV of
this Agreement ("Third Party Materials"). Third Party Materials include text, computer programs, pictorial or graphic works, musical
compositions, sound recordings, audiovisual works and other copyrightable material licensed from a third party. If TPR is unable to
obtain licenses for the rights set forth in Section VIII.C. that are satisfactory to EPG, mutually agreeable material will be substituted.
B. EPG will obtain written licenses to include in Projects any third-party material in copyright that EPG directs TPR to include in
Projects.
C. Scope of Third-Party Licenses. To the extent possible, TPR will obtain rights to Third Party Materials in the English language for
print media and, if appropriate, online publication in the Educational Market (1) in the United States of America, its territories and
possessions, (2) in those jurisdictions outside the United States, which EPG will identify for TPR, that service the U.S. military
(Dodds) and other U.S. agency-related personnel or at which American textbooks are used on a regular basis, such as "American" or
"International" schools established principally to educate American or English speaking nationals, and (3) in the Dominion of Canada
(all the foregoing, "North America"). If the parties agree in specific Project Agreements to designate the Spanish Language or any
other language, electronic or other media publication rights, or other rights, including worldwide rights, then to the extent possible,
TPR will obtain such rights in Third Party Materials.
D. Documentation of Licenses. TPR agrees to deliver to EPG copies of all licenses
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for Third Party Materials and, if not provided in those documents, the source of the Third Party Materials, the grantor's name and
address, and, if for a computer program, the release and version numbers. Licenses for Third Party Materials are to be in a form EPG
provides or, if not provided, in whatever form TPR chooses. TPR will provide this information and documentation as part of the
on-going developmental process but not later than the final delivery of Deliverables for any Project Agreement.
E. Costs of Licenses. EPG will pay the costs of the licenses for Third Party Materials either directly to the third-party owner or by
reimbursing TPR in those cases where TPR has paid the third-party owner.
IX. TRADEMARK LICENSES
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A. Marks. "Trademark" means the trademarks, service marks, and trade names listed in the attached Exhibit E, as amended from time
to time, whether or not registered (collectively, the "Trademarks"). Trademarks owned by TPR are identified as "TPR Marks."
Trademarks owned by McGraw-Hill are identified as "EPG Marks."
B. Ownership of Textbook and Workbook Titles. EPG may obtain trademark or service mark protection for the name that it chooses to
identify any EPG Program, Textbook, Workbook, or other component of it. EPG shall own all rights in such Trademarks. TPR agrees
to cooperate to the extent reasonably requested by EPG in furnishing information and executing documents which may be required in
connection with registration of any such EPG Marks or to confirm EPG's ownership or rights to use any such EPG Marks.
C. Ownership of Training Seminar and Online Product Titles. TPR may obtain trademark or service mark protection for the name that
it chooses to identify any Training Seminars and the Online Product. TPR shall own all rights in such Trademarks. EPG agrees to
cooperate to the extent reasonably requested by TPR in furnishing information and executing documents which may be required in
connection with registration of any such TPR Marks or to confirm TPR's ownership of or rights to use any such TPR Marks.
D. EPG Use of TPR Marks. Subject to the terms and conditions of this Agreement, TPR hereby grants to EPG a non-exclusive,
nontransferable license to use the TPR Marks solely in North America (1) on and in connection with any Textbook that has undergone
TPR Editorial Review or contains TPR Textbook Contributions and on Workbooks, (2) with advertising and promotional materials for
the Projects, and (3) to publicize EPG's relationship with TPR under this Agreement. EPG may not use or reproduce the TPR Marks in
any manner whatsoever other than as expressly permitted by this Agreement.
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E. TPR Use of EPG Marks. Subject to the terms and conditions of this Agreement, EPG hereby grants TPR a non-exclusive,
nontransferable license to use the EPG Marks solely in North America (1) on and in connection with the Training Seminars and the
Online Product, if developed, (2) to publicize the fact of TPR's relationship with EPG under this Agreement, and
(3) to publicize TPR's contribution to and role in preparing the Projects. TPR may not use or reproduce the EPG Marks in any manner
whatsoever other than as expressly permitted by this Agreement.
F. Ownership of Marks. Each party agrees and acknowledges that the other owns and retains all right, title and interest in and to its
respective Trademarks. Except as expressly granted in this Agreement, no party shall have any rights in the other's Trademarks. The
licenses each party has granted the other are personal to the other party, and neither shall assign, transfer or sub-license its rights in the
other's Trademarks in any manner without the prior consent of the party owning the Trademarks, and any transfer in violation of this
restriction will not be valid. Neither party will use or take any action with respect to the other party's Trademarks except in a manner
that does not interfere, derogate or diminish the party's rights in its Trademarks, either during the term of this Agreement or afterwards.
Each party agrees not to adopt, use or register any corporate name, trade name, trademark, service mark or certification mark, or other
designation similar to, or containing in whole or in part, the Trademarks belonging to the other. Any and all goodwill arising from use
of the EPG Marks and TPR's Marks shall inure solely to the party owning said Trademarks respectively. Upon termination of this
Agreement, each party shall cease use of the other's Trademarks.
X. TRADEMARK IDENTIFICATION; CREDIT
A. Trademark Notices on Textbooks. EPG shall cause to be imprinted irremovably and legibly marked on each copy of Trademark
Materials, appropriate trademark notices with respect to the TPR Marks (and any component of them) as TPR specifies in each case,
including the initials "TM" or the letter "R" encircled, or "*" (asterisk), and such legend(s) as TPR may require, including a legend
indicating that the TPR Marks are owned by TPR, and are being used by EPG under license from TPR. The size, location and other
details of placement of the TPR Marks on the Trademark Materials, shall be determined by EPG in consultation with TPR's Project
Manager.
B. EPG will credit TPR for its contributions to the Projects.
Attribution credit will generally be as follows, but must be approved by TPR:
1. TPR's Trademark will appear on the title page of a Textbook (both student and teacher edition);
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2. TPR will be listed as an author or contributor (as applicable) on those pages where like authors of the Textbook are listed;
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3. TPR will be listed as a content reviewer on the reviewer page of the Textbook, if TPR performs TPR Editorial Review.
XI. TRADEMARK QUALITY, INSPECTION AND APPROVAL
A. Quality of Textbooks. EPG agrees to maintain the quality of the Textbooks and Workbooks on which the TPR Marks are used at
least equal to the quality of textbooks and other materials currently published by EPG, which employ EPG's own trade name and TPR
Marks. The Textbooks will comply with applicable National Association of State Textbook Administrators standards. TPR will
likewise maintain the current level of quality of the materials on which it uses EPG Marks.
B. Samples and Review of Marks. At each party's request, the other party shall supply the requesting party with suitable specimens of
the Projects and advertising and promotional materials (singly or collectively, "Trademark Materials"), which demonstrate its use of
the other's Trademarks in the manner specified in the Agreement. Each party shall cooperate fully with the other party to facilitate
periodic review of its use of the other's Trademarks and its full compliance with the quality standards described in this Agreement.
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C. Approval of Trademark Use. Each party will abide by the other's reasonable requirements with respect to Trademark usage. Each
party reserves the right to approve the other's use of its Trademarks in promotional materials and in any press/public releases of
information. Each party reserves the right to approve use of its Trademarks before the other party's use. Accordingly, each party agrees
to submit to the other for approval, before use, distribution or disclosure all Trademark Materials. Each party shall act promptly in
granting or denying approval. Once a usage of the marks has been approved, the same usage need not be resubmitted for approval and
may be used again in the like manner unless approval is withdrawn by the owner. Any disapproval shall specifically state the reason(s)
for which approval is being denied. Any approval or denial of approval shall be made within five (5) business days of submission for
review. If either party fails to respond to a request for review, the submission shall be deemed approved and may be used by the
submitting party without liability to the other. Approval for any such presumed usage may subsequently be withdrawn by the owner of
the marks, and the other party shall take all reasonable actions to curtail and cease such disapproved usage but may use any existing
materials, and any materials which are required to be produced immediately to meet immediate adoption delivery deadlines. If
problems occur with the foregoing approval process, either party may request a reasonable change in the process to alleviate the
problem.
D. No Assumption of Liability. Review and approval by either party of the use of the other's Trademarks shall be limited to trademark
usage, but reasonable and responsible comment may also be volunteered as to content and context, and each party will consider the
other's comments. Neither party assumes any liability for the content of the other's advertising, promotional statements or other
materials, even if it has reviewed and approved usage of its Trademarks in such materials or communications.
E. For purposes of trademark application, registration, recordation, and registration in the U. S. or elsewhere in the world, each party
agrees, at the other's reasonable request, to provide necessary information and samples of Trademark Materials, and to execute and
return promptly to the other any necessary document, including documents which evidence a party's ownership, assignment or license
of rights with respect to the Trademarks.
XII. FAILURE TO PUBLISH; REVERSION OF RIGHTS
A. TPR Request for Publication. If EPG does not publish a Textbook within the period provided in Section II.A.1, TPR may at any
time thereafter deliver to EPG a request under Section XVIII.H to publish the Textbook within twelve (12) months after EPG's receipt
of TPR's request. If EPG fails to comply with TPR's request within such period, (1) this Agreement and the respective Project
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Agreement for the Textbook will terminate without further notice at the end of such period, and (2) all of TPR rights in the TPR
Materials in the specific unpublished Textbook will revert to TPR without further obligation or liability on the part of either party to
the other, except for any questions, which will become part of the Question Pool. The termination and reversion of rights provided in
this Section XII.A shall be TPR's sole remedy if EPG fails for any reason to Publish a Textbook in which TPR Materials were
intended to appear.
B. Reversion of Rights. Five years after the copyright date of any Textbook, all of TPR's rights in the TPR Materials for that Textbook
and any related Project shall revert to TPR, except for any questions, which will become part of the Question Pool. Notwithstanding
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that reversion, EPG shall have the right, subject to the royalty payment provisions of this Agreement, to continue selling Textbooks
and related Projects as part of the EPG Programs developed during the term of this Agreement, and any licenses previously granted
will continue in effect to the end of their terms, and EPG will be entitled to its share of amounts received under any such licenses. EPG
agrees to execute such documents as TPR reasonably requests to confirm any reversion of rights under this section.
C. Rights After Reversion of Rights. In the event of reversion of rights under Section XIII.B, EPG shall be entitled to prepare and
publish new or different textbooks using the same or similar concepts, approaches and organization as were used in the Textbooks, but
shall not publish anything that infringes TPR's rights in TPR Materials.
XIII TERM AND TERMINATION
A. Term. Except for the payment of royalties due after termination and any provision that survives termination under
Section XVIII.E, the Term of the Agreement in which the parties may commence new Project Agreements is four (4) years, and then
the Agreement will renew automatically for one-year terms unless either party gives one (1) year's prior notice of termination.
B. EPG's Termination of the Agreement. EPG may terminate this Agreement under the following circumstances:
1. TPR enters into any voluntary or involuntary declaration of bankruptcy or there is a general assignment for the benefit of TPR's
creditors occurring before TPR's delivery to EPG of the final Deliverables due under any completely executed Project Agreement, or
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2. TPR materially breaches this Agreement and fails to cure the breach within the time period specified in
Section XIII.F, or
3. upon notice to TPR, if TPR's failure to perform Project Agreements is substantial, material, and repetitive, and TPR has received
notice of such failure(s) and has been accorded a commercially reasonable opportunity to cure such failures, but has not done so, with
the result that the intent of this Agreement is frustrated.
C. EPG's Termination of a Project Agreement for Cause. EPG may terminate a Project Agreement under any of the following
circumstances:
1. if a Deliverable, as corrected, revised, or completed pursuant to Section IV.G is not acceptable to EPG, or
2. TPR's performance or delivery is so untimely that EPG is unable to publish Textbooks in accordance with the school adoption
schedules; or
3. TPR materially breaches a Project Agreement and fails to cure the breach within the time period specified in Section XIII.F.
D. TPR's Termination of the Agreement. TPR may terminate this Agreement, in whole or in part in accordance with this Section XIII
if:
1. during the period when a Textbook is being prepared, EPG or McGraw-Hill enters into any voluntary or involuntary bankruptcy or
there is a general assignment for the benefit of EPG's or McGraw-Hill's creditors, or
2. EPG breaches a material provision of this Agreement and fails to cure the breach within the time period specified in Section XIII.F.
E. EPG's Termination or Delay of a Protect Without Cause.
Notwithstanding any other provision of this Agreement and any Project Agreement, EPG shall have the right in its sole discretion, to
terminate or to delay a Project Agreement based upon changed business circumstances, including cancellation of an adoption for
which the work is being prepared. Upon EPG's notice to TPR of any such termination or delay, each party will cooperate to
immediately cease performance of said Project Agreement so as to mitigate costs for each party. EPG will pay TPR for all services
performed that EPG has approved in accordance with the Project Agreement, up to the date of termination. EPG will also pay TPR the
amount of any bona fide "cancellation fees" payable to third parties arising from TPR's canceled commitments to others. In addition,
EPG shall pay to TPR, ten percent (10%) of the amount remaining of the unpaid Project fees as stated in this
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2002. EDGAR Online, Inc.
20
Agreement and the relevant Project Agreement, as modified by any Change Order, as liquidated damages, and not as a penalty, for
cancellation. Upon payment, neither party will have any further obligation or liability to the other under the terminated Project
Agreement, except those that survive under
Section XVIII.E. If EPG delays a Project, the parties will cooperate to make for a smooth, economical transaction under the
circumstances by adding other Project(s) or by taking other appropriate measures.
F. Right to Cure. Except for termination under Section XIII.E above, neither party may terminate this Agreement or any Project
Agreement unless and until the party seeking termination gives notice to the other party stating that it intends to terminate this
Agreement or any Project Agreement and specifying the nature of the breach or default and unless the receiving party fails to cure such
breach or default within thirty (30) days after receipt of the notice (or such longer period of time as may be specified in the notice).
G. Consequences of Termination
1. Upon EPG's notice of termination of a Project Agreement under Section XIII.C. l above, EPG may elect to: (a) retain any
Deliverable in its latest form of completion (including all prior drafts, versions, builds or releases) and to own whatever rights in it that
have been granted in accordance with this Agreement and the Project Agreement for that Project, with no additional payments by EPG
other than what has been made as of termination; or
(b) return the Deliverable to TPR and grant back to TPR, without warranty of any kind, all rights TPR granted to EPG under this
Agreement and the Project Agreement for that Project, and TPR will return payments made under the Project Agreement but not
expended before notice of termination.
2. Upon termination or expiration of this Agreement, TPR will own all right, title, and interest, including copyrights and other rights in
the Online Product, if developed, and the parties will divide the Question Pool evenly and randomly by subject between the two
parties, except that (a) the questions TPR initially contributed from its inventory shall be allotted to TPR, (b) the questions CTB
initially contributed shall be allotted to EPG; and (c) the Derivative Questions shall be assigned to whichever party is allotted the
question from which the Derivative Question was derived. Each party hereby assigns to the other party as of the date of termination its
joint right, title, and interest, including copyright, in the remaining questions in the Question Pool allotted to the other party. Each
party agrees to execute such documents as the other reasonably requests to confirm such assignment of rights under this section.
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3. All the assignments under this Section XIII.G are subject to the exclusive license granted to TPR in
Section XVI.A.2.
4. If either party terminates this Agreement, the rights and remedies of the parties are cumulative, and each party also has all the rights
and remedies provided by law or equity.
H. Effect of a Project's Termination on Other Projects.
Termination of a portion of this Agreement or any Project Agreement relating to a Project shall not affect those provisions relating to
the rights in copyrights or payment of royalties or other monies based upon the sale or licensing of Projects containing TPR Materials
or bearing TPR Marks already published under this Agreement or EPG's recovery of any advance in royalties EPG paid to TPR.
XIV. REPRESENTATIONS AND WARRANTIES
A. McGraw-Hill warrants and represents as follows:
1. McGraw-Hill has the full right, power, and authority to enter into this Agreement, and McGraw-Hill has not and will not assign,
pledge or encumber its rights in the Question Pool to any other person or entity.
2. Except for TPR Materials, the EPG Programs, the Projects and Textbooks contain nothing that is obscene, libelous, defamatory, or,
when taken as a whole is substantially inaccurate, or injurious, and appropriate warnings and safety instructions are included in
Projects concerning any particular hazards.
3. Except for TPR Materials, the EPG Programs, the Projects, Textbooks, and EPG Marks contain nothing that violates or infringes a
copyright, patent, trade secret, or other literary property rights; or that violates the rights of any person, including the right of privacy,
publicity, or moral right; or that violates any EPG contract, express or implied; or that discloses any information that EPG has obtained
in confidence or with the understanding that it would not be disclosed or published.
2002. EDGAR Online, Inc.
4. EPG will use the TPR Marks on and in connection with any Project solely as provided in this Agreement and any applicable
provision of any Project Agreement and will not use the TPR Marks on or in connection with other goods, products or services.
5. EPG makes no representation or warranty concerning the timing of a Textbook's publication or the number of copies of a Textbook
that will be sold.
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B. TPR hereby warrants and represents as follows:
1. TPR has the full right, power, and authority to enter into this Agreement and to grant, transfer, and assign the rights granted and
transferred in this Agreement and TPR has not and will not assign, pledge or encumber such rights or its rights in the Question Pool to
any other person or entity.
2. Except for Third-Party Materials and any public domain material, TPR is the sole developer of TPR Materials, and TPR Materials
are original and previously unpublished, except as may be disclosed in a Project Agreement.
3. TPR Materials contained in any Projects contain nothing that is obscene, libelous, defamatory, or, when taken as a whole, are
substantially inaccurate, or injurious, and appropriate warnings and safety instructions are included in Projects concerning any
particular hazards.
4. TPR Materials and TPR Marks contained in any Project, including any programming code, contain nothing that violates or infringes
a copyright, patent, trade secret, or other literary property rights; or that violates the rights of any person, including the right of privacy,
publicity, or moral right; or that violates any TPR contract, express or implied; or that discloses any information that TPR has obtained
in confidence or with the understanding that it would not be disclosed or published.
5. TPR will use the EPG Marks on and in connection with any Project solely as provided in this Agreement and any applicable
provision of any Project Agreement and will not use the EPG Marks on or in connection with other goods, products or services.
6. TPR makes no representation or warranties relating to the content of any Project that is not TPR Materials.
C. Each party shall abide by all applicable laws in performing this Agreement.
XV. INDEMNIFICATION
A. Each party will defend and indemnify the other party, its successor and assigns, and any seller or licensee of the EPG Programs
against all damages (including settlement), costs, and expenses, including reasonable attorney's fees, based on any third-party claim
that said party's contribution infringes that third party's copyright, trademark, patent, trade secret, other proprietary right, or that third
party's personal property right, or any third-party claim, which, if proved, breaches any of
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the representations or warranties made by said indemnifying party in this Agreement, whether or not the claim results in a judgment. If
such a claim has occurred, or in the opinion of the party is likely to occur, the other party agrees to permit the indemnifying party, at its
option and expense, to settle any claim, action, change or proceeding on such terms as it deems advisable, or either to procure the right
to continue selling, promoting or using the allegedly infringing contribution, or to replace its contribution or Trademark so that the
allegedly infringing contribution or Trademark is non-infringing or non-offending. Modification of the infringing or offending
contribution shall not negate the indemnifying party's obligation to indemnify the other party in accordance with the terms of this
Agreement.
B. Each indemnifying party will have the right to defend with counsel of its own choosing. If the indemnified party desires to retain its
own counsel, it will do so at its own cost. The indemnifying party shall pay any resulting costs, damages, liabilities and expenses,
including reasonable attorney's fees, provided that the party seeking to be indemnified promptly notifies the indemnifying party of the
claim and cooperates in the defense at the indemnifying party's expense, and that the indemnifying party has sole control of the defense
and all related settlement negotiations.
XVI. NON-COMPETITION
2002. EDGAR Online, Inc.
A. TPR
1. Competition During the Term of the Agreement. During the term of the Agreement, TPR agrees it will not enter into a similar
agreement with a person or that part of a firm, corporation, company, partnership or other entity engaged in the development,
publication, and distribution of proprietary educational materials to the Educational Market ("Educational Publisher"). Also during the
term of the Agreement, each party (including the Divisions) is entitled to use the questions that it contributed to the Question Pool
from inventory in other ventures so long as such ventures do not compete with this Agreement.
2. Competition After the Term of the Agreement. For so long as a Textbook is being sold as part of an EPG Program, TPR will not, for
itself or an Educational Publisher, without EPG's prior consent, use or publish more than forty percent (40%) of the TPR Materials in
another secondary school textbook or elementary school program, so that such textbook or program might compete with or injure the
profitability of that Textbook or the EPG Program.
3. TPR Trade Books. Both during and after the term of this Agreement,
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regardless of which party terminates the Agreement, TPR will have the exclusive right, without any compensation to EPG, to use the
Question Pool, except for the CTB questions and derivatives for trade print publications and for products which are noncompetitive
with the EPG Programs, so long as not more than forty percent (40%) of any such trade publication includes questions from the
Question Pool. If the parties do not go forward with the Online Product under Section III, each party will have the right to use 50% of
the Question Pool without accounting to the other party, except that neither party will be able to use the questions that the other party
initially contributed to the Question Pool from inventory and the Derivative Questions based on those contributed questions.
B. EPG. During the term of the Agreement, EPG will not retain another person or business entity to substitute for TPR in connection
with the services that TPR performs under this Agreement.
C. Ability to Compete. Except as expressly stated in this Section XVI, each party acknowledges that the other may publish textbooks,
test questions, or materials within the same or similar areas of general or specific interest as a Textbook published under this
Agreement, and nothing in this Agreement shall inhibit a party from that practice. Each party understands that the other party is in the
business of providing goods and services of many types, and it is not the intent of this Section XVI to unduly curtail the freedom of
either party to conduct its business affairs, to enter into agreements with others, or to offer goods or services to its customers in
accordance with its business judgment. This
Section XVI is to be construed in a reasonable manner with the intent of protecting each party's right to carry on its own business while
ensuring that each enjoys the benefits of its bargain under this Agreement.
XVII. CONFIDENTIAL INFORMATION
A. Nondisclosure. Confidential Information is and remains the property of the disclosing party. The parties will hold Confidential
Information in confidence and treat it as each treats its own Confidential Information and will not disclose it to any third person
without the express consent of the other party, except that the parties may disclose Confidential Information, including the terms of this
Agreement, for the purpose of obtaining legal, financial or tax advice. A material failure to abide by these provisions shall constitute a
material breach and cause for termination of this Agreement.
B. Definition of Confidential Information. "Confidential Information" means all information that either party discloses to the other and
identifies as "confidential"
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or "proprietary," or which, under all of the circumstances, should reasonably be treated as confidential or proprietary, including the
content of a Textbook, its publication date, the development fees, royalties rates and amounts paid, all information that relates to each
party's past, present, and future research, development, plans, sales and business activities, as well as all information, conclusions,
drafts, programming and associated materials and Textbook product resulting from TPR's performance under this Agreement. Upon
termination or expiration of this Agreement, each receiving party will return all Confidential Information to the disclosing party, or
destroy it and certify its destruction. The terms and conditions of this Agreement and information learned during an audit conducted
under Section VI are Confidential Information, except that either party may disclose the terms of the Agreement for the purpose of
seeking legal, financial, or auditing advice so long as such advisors agree to abide by the confidentiality restrictions of this
Section XVII.
2002. EDGAR Online, Inc.
C. Information that is Not Confidential. Confidentiality obligations shall not apply to any Confidential Information
(1) that at or after disclosure is available to the general public, other than through a breach by the receiving party;
(2) that is already known to the receiving party before disclosure; (3) that is developed through the independent efforts of the receiving
party; (4) that the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (5) whose
disclosure is required by law or is requested by legal or administrative process, except that the party who is served with process will
give immediate notice to the disclosing party of the process and make reasonable efforts not to disclose the Confidential Information
until the disclosing party has had an opportunity to make a motion to quash the request.
D. Press Releases. The parties will coordinate and cooperate with each other in making any public announcement or press release
concerning this Agreement, any Project Agreement, or the relationship between the parties under the Agreement. To that end, each
party will give the other party reasonable prior opportunity to comment upon any such release or announcement and to approve the
subject matter, details, and use of the other's Trademarks in it. Neither party will unreasonably withhold its approval.
XVIII. MISCELLANEOUS
A. Independent Contractors. Nothing in this Agreement shall be construed so as to constitute the parties as joint venturers, partners, or
agents of each other, and neither party shall have the power to obligate or bind the other in any way whatsoever.
B. Entire Agreement. This Agreement, Exhibits A-D attached to it, and the related
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Project Agreements constitute the complete agreement between the parties and supersede all other agreements, promises,
representations, and negotiations, whether written or oral, between the parties regarding the subject matter of the Agreement, including
the parties' June 10, 1998 letter agreement.
C. Amendment: Waiver. No amendment or waiver of any provision of this Agreement will be valid unless in writing and signed by all
parties affected by the amendment or waiver. No waiver shall be deemed a waiver of a subsequent breach.
D. Assignment. Neither party may assign this Agreement or assign or delegate its obligations under it without the other's prior consent,
except that TPR can assign any monies payable to it, and any assignment in violation of this provision shall be null and void.
Notwithstanding the foregoing, each party may assign this Agreement as a whole in connection with the transfer and sale of a Division,
line of business, substantially all its assets or the sale or transfer of its voting shares, upon notice to the other. Should such transfer
create a material conflict of interest for the non-assigning party, that party may terminate this Agreement upon reasonable grounds
upon prior notice. Subject to the foregoing, this Agreement will be binding on the parties signing it and on all their successors and
permitted assignees.
E. Survival. The rights and obligations of Sections VI, VII, XIV, XV, XVI.A.2, XVII, and XVIII, and those other provisions which by
their nature survive will survive the expiration or termination of this Agreement and will bind the parties and their successors and
assigns in accordance with their terms.
F. Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall not be
affected and shall remain in effect, unless doing so would deprive one of the parties of the benefit of the Agreement.
G. Applicable Law and Forum. This Agreement will be construed in accordance with and governed by the laws of the State of New
York applicable to agreements made and to be performed there and without regard to it conflict of laws rules. Any disputes arising out
of or related to this Agreement will be brought in the state or federal courts with jurisdiction in New York County, New York, and the
parties expressly consent to the exclusive jurisdiction and venue of such courts.
H. Notices. Notices, approvals, disapprovals, excuses, requests, and consents concerning day-to-day administrative and performance
matters must be in writing and sent to the respective party's Project Managers. Notices, approvals, disapprovals, requests, and consents
of a substantive or legal nature required by this Agreement for either party are to be in writing and shall be forwarded as follows:
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TPR:
John Katzman, President The Princeton Review
2315 Broadway, 2nd Floor New York, N.Y. 10024
2002. EDGAR Online, Inc.
Telephone: (2l2) 874-8282 Facsimile: (212) 874-0775
with a copy to:
John P. Schmitt, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Telephone: (212) 336-2849 Facsimile: (2l2) 336-2222
EPG:
Jack Witmer, President The Educational and Professional Publishing Group a unit of McGraw-Hill Companies, Inc.
936 Eastwind Drive
Westerville, Ohio 43081
Telephone: (614) 899-4300 Facsimile: (614) 899-4304
with a copy to:
Vice President and General Counsel Educational Publishing Group 1221 Avenue of the Americas New York, New York 10020-1095
Telephone: (212) 512-4427 Facsimile: (212) 512-4415
Changes in address by either party shall be made by notice to the other party in accordance with this provision. Notices required by
this Agreement shall be deemed received (1) upon delivery, when delivered in person or by commercially receipted courier, (2) upon
the date sent by facsimile or other electronic media, if the sender confirms by sending a copy by courier delivery or U.S. Postal
Service, or (3) five
(5) days after deposit with the U.S. Postal Service by registered or certified mail.
I. Force Majeure: Neither party shall be liable to the other for any failure or delay caused by events beyond its reasonable control,
including, acts of God, sabotage, accidents, failures or delays in transportation or communication, labor disputes, shortages of labor,
fuel, raw materials or equipment, or other matters. Each party shall promptly inform the other of any such event. Should the event
prevent performance of this Agreement for more than sixty (60) days, the other party may terminate this Agreement or the applicable
Project Agreement; rights granted under this Agreement shall revert to the grantor; and each party shall retain its rights in the Question
Pool specified in Section VIII.A.4, may exploit those rights to the extent permitted by law, and need not account to the other party with
any proceeds from that exploitation.
J. Headings. Headings and captions throughout this Agreement are for convenience only and should not be considered part of the
substantive terms of this Agreement.
K. Including. "Including" means "including but not limited to" and "including without limitation."
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L. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above.
2002. EDGAR Online, Inc.
EDUCATIONAL AND PROFESSIONAL PRINCETON REVIEW
PUBLISHING GROUP, A UNIT OF PUBLISHING L.L.C.
THE MCGRAW-HILL
COMPANIES, INC.
By: /s/ Jack Witmer By: /s/ John Katzman
Title: President Title: President
Date: 12/24/98 Date: 12/28/98
Taxpayer ID No.
13-303-9184
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Exhibit A: Question Pool Schedule
This chart represents the numbers of questions that The Princeton Review will create, not edit, broken down by grade grouping, major
subject area, and the school year during which the questions will be delivered.
--------------------------------------------------------------------------------
CONTRACT YEAR Math Reading Social Studies Science
TOTAL
1998-1999
--------------------------------------------------------------------------------
K-2 * * * * *
--------------------------------------------------------------------------------
3-6 * * * * *
--------------------------------------------------------------------------------
7-8 * * * * *
--------------------------------------------------------------------------------
9-12 * * * * *
--------------------------------------------------------------------------------
TOTAL * * * * *
--------------------------------------------------------------------------------
*
--------------------------------------------------------------------------------
2002. EDGAR Online, Inc.
--------------------------------------------------------------------------------
CONTRACT YEAR Math Reading Social Studies Science
TOTAL
1999-2000
--------------------------------------------------------------------------------
K-2 * * * * *
--------------------------------------------------------------------------------
3-6 * * * * *
--------------------------------------------------------------------------------
7-8 * * * * *
--------------------------------------------------------------------------------
9-12 * * * * *
--------------------------------------------------------------------------------
TOTAL * * * * *
--------------------------------------------------------------------------------
*
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
CONTRACT YEAR Math Reading Social Studies Science
TOTAL
2000-2001
--------------------------------------------------------------------------------
K-2 * * * * *
--------------------------------------------------------------------------------
3-6 * * * * *
--------------------------------------------------------------------------------
7-8 * * * * *
--------------------------------------------------------------------------------
9-12 * * * * *
--------------------------------------------------------------------------------
TOTAL * * * * *
--------------------------------------------------------------------------------
*
--------------------------------------------------------------------------------
2002. EDGAR Online, Inc.
--------------------------------------------------------------------------------
SUMMARY Math Reading Social Studies Science
TOTAL
--------------------------------------------------------------------------------
K-2 * * * * *
--------------------------------------------------------------------------------
3-6 * * * * *
--------------------------------------------------------------------------------
7-8 * * * * *
--------------------------------------------------------------------------------
9-12 * * * * *
--------------------------------------------------------------------------------
TOTAL * * * * *
--------------------------------------------------------------------------------
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Exhibit B: Sample Project Agreement
Instructions: A Project Agreement is to be prepared by the EPG Contracts, Copyright & Permissions Department as part of the
Contract Request Form procedures. EPG's Project Managers should initially complete this form and send it to the Contract Department
together with other required materials.
This is a PROJECT AGREEMENT between the Educational and Professional Publishing Group of The McGraw-Hill Companies, Inc.
("EPG") and Princeton Review Publishing L.L.C. ("TPR") under a master Agreement dated _______________ 1998, between EPG
and TPR (the "Master Agreement"). The Master Agreement will govern preparation and publication of the Textbook. Please complete
additional pages, if necessary.
Any capitalized term (or grammatical variant of it) in this Project Agreement has the same definition as does that term in the Master
Agreement.
NAME OF PROJECT:
PROJECT AGREEMENT DATE:
NAME OF EPG DIVISION:
TYPE OF PROJECT: Ownership rights, including copyright rights, to the various Deliverables that comprise TPR Materials are
determined under the Master Agreement in accordance with Section VII and Section XIII. Therefore, it is important to correctly
classify the various components of TPR Materials, since such classification will determine each party's ownership rights to these
components of the Textbook. Please circle one:
Editorial Review
Workbook
Question Pool
Online Product
Training Seminar
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NAME OF PROJECT MANAGERS:
2002. EDGAR Online, Inc.
EPG: TPR:
Name: _____________________ Name: ______________________
Telephone: _________________ Telephone:
__________________
Fax: _______________________ Fax:
________________________
EPG: TPR:
E-mail: _______________________ E-mail: _______________________
(1) NAME OF EPG TEXTBOOK: Insert the title of the Program/Textbook (if applicable) for which TPR is preparing a contribution
("Project"). Identify the title by name, proposed copyright date, Edition Number (if applicable), Author's Name (if applicable),
copyright, and other identifying details.
(2) DESCRIPTION OF SERVICES AND DELIVERABLES: Insert a description of the services TPR is to perform and the TPR
Materials that TPR is to deliver ("Deliverable") hereunder. Attach additional pages, if needed.
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33
(3) Will TPR use any McGraw-Hill Materials in the preparation if this TPR Work? yes / no If yes, please describe.
(4) MILESTONE EVENTS AND DELIVERY DATES: List all delivery dates for services and Deliverables of the Project. Use
additional page(s), if needed:
Delivery/Performance
Dates
--------------------
-----
(Deliverables/Services to be performed)
(5) OWNERSHIP/LICENSE OF RIGHTS; RIGHTS OBTAINED FOR PERMISSIONS. Will EPG have the right to publish and
distribute the Textbook in the following languages in addition to English (If Spanish or other rights are specified, TPR will be
obligated to obtain such rights for all Third Party Materials, as stated in
Section VIII.C of the Master Agreement):
Spanish/Other (specify)/English only
(6) TOTAL PROJECT FEE: Insert the total Project Fee or Budget for the Project, including payment dates or events; attach additional
pages, if needed. Unless otherwise noted, half payment will be made at the start of the project, and half on acceptance.
Total Project Fee:
(7) LICENSED THIRD-PARTY MATERIALS: Describe the nature, sources, and cost of any Third Party Materials that TPR will be
licensing under Section VIII of the Agreement:
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Under Section VIII.E, EPG will pay the cost of the Third Party Materials
2002. EDGAR Online, Inc.
_____ directly to the Third Party (identify):
_____ to TPR, which will pay the Third Party.
(8) SPECIAL PROVISIONS: Describe any other special provisions, if necessary:
EPG TPR:
Division:
By: ____________________________ By:
____________________________
Title: __________________________ Title: ___________________________
Date: __________________________ Date: ___________________________
Note: Please provide the EPG Contracts, Copyrights & Permissions Department with other relevant documentation such as
correspondence exchanged between the parties, any "Request for a Proposal" issued by EPG, or any Proposal or Response to
Proposal, or Bid issued by TPR when submitting a Contract Request Form for this Project Agreement.
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Exhibit C: Sample Change Order
This is a CHANGE Order to a PROJECT AGREEMENT between the Educational and Professional Publishing Group of The
McGraw-Hill Companies, Inc. ("EPG") and Princeton Review Publishing L.L.C. ("TPR") under a Master Agreement dated
_____________ 1998, between EPG and TPR (the "Master Agreement"). Any capitalized term (or grammatical variant of it) in this
Change Order has the same definition as does that term in the Master Agreement.
This Change Order affects the following Project Agreement:
Date: __________________________________ EPG Division: ___________________________ Title of
Program/Textbook:__________________
Insert a description of the material changes in TPR's services or TPR Materials, for example, any change in the scope of services to be
provided by TPR, Deliverables, scheduled delivery dates, amount and dates of payment of Total Project Fee, etc. Attach Additional
Page(s), if necessary.
I) SCOPE OF CHANGE: (TPR services or materials to be added or deleted)
II) COMPENSATION OR PAYMENT SCHEDULE:
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III) OWNERSHIP RIGHTS:
IV) OTHER SUBSTANTIAL CHANGES:
2002. EDGAR Online, Inc.
EPG: TPR:
Division:
By: ____________________________ By: ____________________________
Title: __________________________ Title:
___________________________
Date: __________________________ Date: ___________________________
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Exhibit D: Excluded Materials
Sales of the following materials are excluded from the calculation of royalties under Section V.D. l of the Agreement:
SCHOOL DIVISION
*
GLENCOE/MCGRAW-HILL
SOCIAL STUDIES
*
LANGUAGE ARTS
*
SCIENCE
*
MATH
*
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Exhibit E: List of Licensed Trademarks
A list of Trademarks, service marks and logos which are cross-licensed under the Agreement between EPG and TPR.
"TPR MARKS" LICENSED TO EPG:
THE PRINCETON REVIEW
"EPG MARKS" LICENSED TO TPR:
EPG Marks:
Corporate:
McGraw-Hill
McGraw-Hill logo THE MCGRAW-HILL COMPANIES
2002. EDGAR Online, Inc.
The McGraw-Hill Companies, Inc.
The Educational and Professional Publishing Group of the McGraw-Hill Companies, Inc.
Glencoe Marks:
Glencoe
Glencoe/McGraw-Hill/
Mindjogger
SRA Marks:
SRA
SRA/McGraw-Hill
Science Research Associates
SRA logo
Open Court
OC Design (Open Court)
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School Division:
School Division
Math in My World
Marks may be added or deleted from this Exhibit during the term of the Agreement with written notice.
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AGREEMENT BETWEEN
THE EDUCATIONAL AND PROFESSIONAL PUBLISHING GROUP,
A UNIT OF THE MCGRAW-HILL COMPANIES, AND
THE PRINCETON REVIEW
2002. EDGAR Online, Inc.
TABLE OF CONTENTS
I.
DEFINITIONS......................................................1
II. THE PARTIES' PERFORMANCE
OBLIGATIONS.............................3
III. DEVELOPMENT OF THE ONLINE
PRODUCT................................5
IV. PROJECT AGREEMENTS AND PROJECT
MANAGERS..........................5
V. PAYMENT FOR PROJECTS AND
ROYALTIES...............................7
VI.
AUDITING........................................................11
VII. COPYRIGHT AND
LICENSES..........................................11
VIII. LICENSED THIRD-PARTY
MATERIALS..................................13
IX. TRADEMARK
LICENSES..............................................14
X. TRADEMARK IDENTIFICATION;
CREDIT................................16
XI. TRADEMARK QUALITY, INSPECTION AND
APPROVAL......................16
XII. FAILURE TO PUBLISH; REVERSION OF
RIGHTS.........................17
XIII. TERM AND
TERMINATION............................................18
XIV. REPRESENTATIONS AND
WARRANTIES..................................21
XV.
INDEMNIFICATION.................................................22
XVI.
NON-COMPETITION.................................................23
XVII. CONFIDENTIAL
INFORMATION........................................24
XVIII.
MISCELLANEOUS...................................................26
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2002. EDGAR Online, Inc.
Exhibit A: Question Pool
Schedule.......................................29
Exhibit B: Sample Project
Agreement.....................................31
Exhibit C: Sample Change
Order..........................................35
Exhibit D: Excluded
Materials...........................................37
Exhibit E: List of Licensed
Trademarks..................................39
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Exhibit 10.37
THE PRINCETON REVIEW FRANCHISE AGREEMENT
AGREEMENT made in the City of Princeton, State of New Jersey, by and between Princeton Review Management Corp., a Delaware
Corporation (hereinafter referred to as "Franchisor"), and Robert Cohen whose address is 13 Olden Street, Princeton NJ, 08540
(hereinafter referred to as "Franchisee").
WITNESSETH:
RECITALS
Franchisor has developed and acquired a comprehensive method known as The Princeton Review ("TPR") Method for conducting,
operating, and marketing a test preparation business which prepares students to take college and graduate school admission tests and
other courses ("the business"). The TPR Method, consisting, in part, of confidential and proprietary educational materials, teaching
aids, techniques, systems, and formats was developed through considerable expenditures of time, effort and money, and is identified by
and with certain proprietary names and marks owned by Franchisor.
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Franchisor is in the business of licensing and franchising others, who desire to engage in the business, rights to use the TPR Method,
the Franchisor's proprietary names and marks associated with it, and teaching aids and materials as currently developed and as
expanded and improved in the future. In order to assist Franchisees to use the TPR Method efficiently and effectively in the operation
of the business, and to provide high quality and uniform standards of service, Franchisor provides or makes available to Franchisees
various initial and continuing training and services.
Franchisee desires to use the Princeton Review Method in the operation of a franchised The Princeton Review test preparation
business under a franchise granted from Franchisor by, and in conformance with the terms of, this Agreement, at a location or locations
within a territory hereafter described. Franchisee also desires to obtain and to derive the benefits of Franchisor's initial and continuing
services, training, guidance, expertise, know-how and information for its use in operating and managing the business.
Franchisee acknowledges as essential conditions of this Agreement and the rights granted hereunder, and as consideration exchanged
by and for the mutual benefit of all licensed users of the TPR Method and name, that Franchisee adhere to the uniform standards of
quality, procedure and format prescribed by the TPR Method; preserve the confidentiality of the TPR Method; and comply fully with
the obligations hereafter set forth.
In consideration of the foregoing recitals, of the mutual promises hereafter set forth, and of other good and valuable consideration,
Franchisor and Franchisee hereby agree as follows:
I. GRANT, TERRITORIAL RIGHTS, AND TERM
A. Grant of Franchise. Franchisor hereby grants to Franchisee, and Franchisee hereby
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accepts from Franchisor a franchise and license for the term and upon the conditions and terms hereafter set forth:
1. To use the TPR Method in connection with the operation of a franchised Princeton Review test preparation business at specific,
approved site locations within the following geographical area: NJ Counties of Mercer, Ocean, Monmouth, Middlesex, Somerset,
Union, Essex, Morris, Hudson, Bergen, Passaic and Hunterdon. Franchisor shall not unreasonably withhold approval of specific site
locations proposed by Franchisee. As used herein, the term "site locations" means the place or places at which Franchisee conducts
courses available under the TPR Method. For so long as this Agreement continues in effect, Franchisor itself shall not, nor will it
franchise or license any other party or parties to, nor will it permit any officer of Franchisor to, establish and operate a similar test
preparation business under any name or mark at any location within the geographical area above described, except to the extent
provided by Subparagraph VI. B. l. c. of this Agreement.
2. To use confidential and proprietary educational materials, trade secrets and techniques, operating manuals and bulletins, and other
business methods and know-how disclosed by Franchisor, solely in connection with the operation of the business conducted at the
locations heretofore described and in accordance with the terms of this Agreement;
3. To use Franchisor's proprietary names, marks, and methods franchised and licensed hereunder only in the above described
geographical area (except with respect to media advertising or with Franchisor's advance written consent), and only in the manner
provided by this Agreement, and only for so long as this Agreement shall remain in effect
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and Franchisee is in compliance with its terms;
B. Term, Commencement of Operations, and Renewal. The term of this Agreement and of the franchise and license granted herein
shall be for a period of twenty (20) years commencing on June 1, 1986, and ending on May 31, 2006, unless sooner terminated in
accordance with the terms of this Agreement. Franchisee hereby agrees to commence operations hereunder no later than no calendar
days following the execution of this Agreement. For purposes of this Agreement, Franchisee's fiscal year shall begin on the first day of
January and end on the 31st day of December for so long as this Agreement remains in effect, unless changed with the written consent
of Franchisor.
Franchisee shall have the option to renew the license granted herein for successive ten (10) year terms provided all of the following
conditions have been fulfilled:
1. Franchisee gives written notice to Franchisor of Franchisee's intention to so renew no later than one hundred eighty
(180) days, nor earlier than one (1) year, prior to the expiration of this or any renewal term of this Agreement and this Agreement has
not otherwise been previously terminated; and
2. At the scheduled date of renewal, there is no pending uncured default or breach of this Agreement constituting cause for termination
under Paragraph XIII. hereof; and
3. Franchisee executes no later than one hundred twenty (120) days prior to the expiration of the term of this Agreement or any
renewal or extension hereof a renewal agreement on the terms and conditions then being offered to new licensees, except that (a) no
initial license fee shall be payable by Franchisee upon renewal; (b) periodic
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payments shall be of no higher percentages nor payable more frequently than those provided by this Agreement; and (c) reporting
and/or record keeping requirements shall be no more extensive or frequent than those provided by this Agreement; and
4. Franchisee, either in the year immediately preceding the expiration date of the renewal option hereby provided, or on an annual
basis averaged over the last three (3) years preceding the expiration date of the renewal option hereby provided, has made royalty
payments to Franchisor of no less than thirty percent (30%) of Franchisee's initial franchise fee hereunder adjusted to correspond with
changes in the national consumer/price index or makes a supplemental cash payment in the amount of the difference between actual
payments made and the percentage payments provided herein.
II. INITIAL FRANCHISE FEE
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In consideration of the franchise and license granted by this Agreement, Franchisee shall pay to Franchisor the sum of $206,176 as an
initial franchise fee payable in consecutive, non-interest bearing installment payments as follows: 15% upon execution of this
Agreement; 15% within each and every 180 day period following thereafter for five payments; and, a final payment of the full balance
remaining outstanding within the next succeeding 180 day period.
Each installment payment of the initial franchise fee shall be deemed fully earned by Franchisor upon payment thereof, and no
installment payment of the initial fee shall be refundable, in whole or in part, at any time under any circumstances except as provided
by Paragraph VI. A. l. of this Agreement.
If prior to the completion of Franchisee's first three (3) years of operation hereunder, Franchisee is by law required to cease conducting
the business franchised and conducted pursuant
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to the terms of this Agreement by reason of any unlawful act of Franchisor, Franchisee shall, as liquidated damages therefor, be
released and discharged from any obligation to make any future unpaid initial fee installment payment.
The initial fee is in addition to the periodic royalty-service fee payable pursuant to Paragraph III., the advertising fee payable under
Paragraph V., and any other fee or payment which Franchisee may incur or owe to Franchisor from time to time under this or any other
Agreement.
III. CONTINUING ROYALTY-SERVICE FEES
A. Amount and Payment of Periodic Fees. In further consideration of the rights and entitlements granted under this Agreement,
Franchisee agrees to pay to Franchisor monthly, within ten (10) days after the last day of each and every calendar month ("monthly
payment periods") during the term of this Agreement, a combined royalty-service fee in the amount equal to eight percent (8%) of
Franchisee's gross receipts collected during the preceding monthly payment period. For purposes of this Paragraph III.A., gross
receipts means the total revenues received by Franchisee for sale of goods or services made by or from Franchisee's franchised The
Princeton Review test preparation business or businesses, and shall include all revenues that have been received by Franchisee for
purchases of goods or services similar or of the same nature as those offered by the TPR Method made by current or former students
of Franchisee's The Princeton Review business. There shall be excluded from gross receipts taxes added to the sales price and
collected from the customer, credit card charges, and bona fide refunds.
B. Throughout the term of this Agreement, Franchisee shall pay to Franchisor a minimum annual royalty service fee calculated in
accordance with the following schedule:
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1st Year of Operation -- 5% of Initial Franchise Fee
$10,308.80
2nd Year of Operation -- 10% of Initial Franchise Fee
$20,617.60
3rd and Subsequent Years of Operation -- 15% of Initial Franchise Fee
$30,926.40
Beginning with the fourth year of this Agreement, the dollar amount of the minimum annual royalty-service fee shall be adjusted as of
the anniversary date of this Agreement to correspond to any change in the national consumer-price index for the preceding year. If at
the end of each year of this Agreement, total royalty-service fee payments made during the year total less than the aforesaid minimum
annual royalty-service fee due for such year, Franchisee shall pay Franchisor the difference within thirty (30) days following the end of
such year.
Royalty-service fee payments received by Franchisor under this Agreement shall be under no restriction whatever but shall be
considered general funds of Franchisor for all purposes.
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When, in any same calendar year, a majority of individual TPR franchises fails to attain the minimum fee, the minimum fee percentage
applicable to such year will be reduced to the percentage actually attained by a majority of franchisees.
IV. REPORTS AND RECORDS
A. Franchisee shall submit to Franchisor, at the time each monthly payment of royalty-service fee is due, an accurate and complete
statement of gross receipts (as defined in Paragraph III. A.) on forms specified, approved or provided by Franchisor and completed
according to their terms.
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B. Within thirty (30) days after each quarterly period of Franchisee's fiscal year during the term of this Agreement, Franchisee shall
submit to Franchisor a statement of financial condition (a balance sheet) and a statement of income and expense relating to the
business as of and for the period ending on such quarterly period, on forms specified, approved, or provided by Franchisor and
completed according to their terms in accordance with generally accepted accounting practices.
C. Within sixty (60) days after the close of Franchisee's fiscal year, Franchisee shall furnish to Franchisor a year-end income and
expense statement in the form requested, and certified to by Franchisee, including an entry showing the total gross receipts for the said
previous fiscal year. If this statement shows that there has been any underpayment of royalty-service fees for such fiscal year based on
gross receipts as finally adjusted and reconciled after the closing and review of Franchisee's books and records, Franchisee shall pay to
Franchisor, at the time of submitting such statement, the amount of any such underpayment. Any overpayment shall be refunded to
Franchisee within thirty
(30) days.
Franchisor shall provide Franchisee with a computer program designed to generate the financial information required to be supplied by
Franchisee under Subparagraphs IV. B. or C. If said computer program, when used according to Franchisor's instruction or direction,
is defective and fails to generate the financial information herein required, Franchisee shall be under no obligation to provide such
information during the time such defective condition persists.
D. Franchisee shall maintain appropriate books and records in such a manner as to clearly and accurately show gross receipts as
defined herein. All such books and records, and income tax returns applicable to the test preparation business of Franchisee shall be
open at all
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reasonable times to inspection and verification by Franchisor or its duly authorized representatives. Franchisor shall be entitled at any
time during normal business hours to have Franchisee's books and records examined or audited at Franchisor's expense upon
seventy-two (72) hours' notice and Franchisee shall cooperate fully with the parties making such examination or audit on behalf of
Franchisor. Franchisee shall promptly pay to Franchisor or Franchisor shall refund to Franchisee, as the case may be, any under or
overpayment or royalty-service fees revealed by the examination or audit. If an examination or audit is performed due to Franchisee's
failure to submit statements of gross receipts or to maintain books and records as provided herein, or in the event that the gross
receipts reported by Franchisee for any period of twelve consecutive months are more than five percent (5%) below the actual gross
receipts of Franchisee for such period as determined by any such examination or audit, then Franchisee shall within fifteen (15) days
following notice, pay to Franchisor the reasonable and customary cost of such an examination or audit as well as all additional
amounts of royalty-service fee charges, advertising charges, and any other charges or fees shown to be due. Payment and acceptance of
such amounts shall not waive or prejudice any right of Franchisor to exercise any other remedy of this Agreement, including
termination in accordance with Paragraph XIII of this Agreement. Any delinquent royalty-service fee or other fees or charges due
Franchisor from Franchisee shall bear interest at the annual rate of eighteen percent (18%) from thirty (30) days after the date such
amount was due until paid.
V. PROMOTION AND ADVERTISING
In addition to, and along with, the Royalty-Service fee provided herein, Franchisee shall pay monthly to Franchisor an advertising fee
equal to two percent (2%) of Franchisee's gross
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receipts as heretofore defined for the preceding month. All Franchisor-owned TPR test preparation business units shall make a
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monthly contribution to the advertising fund in an amount equal to two percent (2%) of their gross receipts for the preceding month,
and Franchisor shall use all such funds it receives hereunder for the development, placement, and distribution of regional and national
consumer advertising designed in its discretion to promote consumer demand for services and products available from The Princeton
Review franchises under the TPR Method.
Franchisor shall deposit and maintain all unexpended advertising funds collected from franchisees in an appropriately identified bank
account separate and distinct from any other and used for no other purpose. In the months of January and July of each year throughout
the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising funds collected and
specifically how such funds were expended during the preceding six-month period.
Franchisee may in its own right and at its own expense promote and advertise its franchised business, provided that all such
promotional materials and advertising proposed to be used shall prior to use or publication be submitted to and approved by
Franchisor in the interest of maintaining the integrity, force, quality, image and goodwill associated with the proprietary names and
marks of Franchisor. Unless Franchisor disapproves proposed advertising within seven (7) days following its receipt thereof, approval
hereunder shall be deemed to have been given.
VI. OBLIGATIONS OF FRANCHISOR
A. Undertakings Prior to Commencement of Operations. Prior to Franchisee's commencement of operations hereunder Franchisor
shall:
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1. Training: Conduct a training program for Franchisee covering the TPR Method and courses currently available thereunder. The
training program will be at such location and time as Franchisor shall designate, and shall be at no extra charge for not more than two
(2) persons designated by Franchisee and acceptable to Franchisor. All expenses of travel, lodging, meals and other living expenses
incurred by Franchisee's personnel in attending such program shall be borne and paid for by Franchisee.
The grant of the franchise herein is conditioned upon successful completion of the training program by Franchisee or its personnel as
determined by Franchisor. If during the course of the training program or within fifteen (15) days thereafter Franchisor concludes that
Franchisee or its designee has not exhibited the aptitude, abilities, or personal characteristics necessary or desirable to operate
successfully a test preparation business in accordance with the standards and procedures of the Princeton Review Method and as a
Franchisee of Franchisor, Franchisor may, in its sole discretion and judgement, cancel this Agreement and all rights hereunder, where
permitted by applicable law, by giving notice to Franchisee and tendering to Franchisee a refund of its initial franchise fee. Franchisee
agrees that such refund shall be the full extent of Franchisor's liability and responsibility in the event of such cancellation, and that
upon cancellation Franchisee shall return to Franchisor all materials, manuals, information and all other items that Franchisee received
from Franchisor, including all copies thereof and notes thereon which Franchisee may have or control. Franchisee further agrees to
maintain strictly the confidentiality of all information received relating to the TPR Method and not to use in the operation of a test
preparation or similar business, any trade secrets or confidential information obtained from
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Franchisor in the course of the training program or otherwise.
2. Materials. Lend in trust to Franchisee the computer software and data and other course materials needed to conduct the franchised
business in accordance with the TPR Method which Franchisor may revise from time to time to reflect changes, additions and
improvements to suggested and required course offerings, procedures, policies, standards and specifications. Such material shall at all
times remain the property of Franchisor.
Franchisee agrees to follow the procedures and adhere to the policies set forth in any operating manuals or bulletin, and to maintain
their confidentiality. Upon expiration or termination of this Agreement, or upon reasonable request of Franchisor, Franchisee shall
return such materials to Franchisor.
3. Provide assistance in locating, selecting and equipping the specific business premises within the Franchisee's geographical area
suitable for conducting the franchised business activities.
B. Continuing Undertakings. Franchisor shall provide the following continuing services for the benefit of Franchisee:
1. Method Improvements and Program Additions.
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a. Make available to Franchisee from time to time all improvements and additions to the TPR Method that are circulated generally to
all other franchisees, and, except as otherwise provided hereunder, to Franchisor-owned TPR test preparation businesses. Franchisor
shall exercise due diligence to keep materials current.
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b. New, additional, or improved course programs developed by Franchisor which are designed to prepare students for college or
graduate school admissions tests will be offered exclusively for marketing by Franchisees. After any such program has been tested by
Franchisor for a period of at least one year, Franchisee shall be required to accept and put into use such program in the franchised
business. They may be subject to a fee or charge based only on the Franchisor's costs for providing Franchisee's personnel with
training necessary to incorporate and implement such programs in Franchisee's business. Franchisee shall not be required to accept
more than two (2) new programs in any calendar year.
c. Any new course developed by Franchisor other than one provided for in subparagraph b. above will be offered to Franchisee on a
first option basis before being offered to any other party. Until any such program has been tested by Franchisor for a period of at least
one year, and Franchisee has been extended a written option notice by Franchisor, Franchisee shall have the first option right to
exclusively market each program within the geographical area described in Paragraph I.A.1. of this Agreement. The first option right
herein provided shall be exercised by Franchisee by giving Franchisor written notice of its election to do so within thirty (30) days
following Franchisee's receipt of a statement of Franchisor describing the program, reciting Franchisee's right to obtain exclusive
marketing rights in said geographical area, and setting forth the fee or charge payable by Franchisee to secure such right and program.
The fee or charge payable shall be
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based on Franchisee's pro rata share of Franchisor's costs to develop the course and program. As used herein, the term "pro rata share"
means the proportionate value of the formula amount of Franchisee's initial franchise fee calculated on the basis of factors existing as
of a date six (6) months prior to the date the option offer is made ("the adjusted initial fee value") in relation to the total adjusted initial
franchise fee value on such date of all TPR franchises and of all Franchisor-owned TPR units assuming they were franchises.
In the event Franchisee does not exercise the first option rights herein provided, Franchisor shall have the right to grant said marketing
rights to any other party or parties within the aforesaid geographical area, but only under a name or mark other than THE
PRINCETON REVIEW or any other proprietary name or mark hereunder licensed to Franchisee.
(Except as otherwise agreed, Franchisor unilaterally represents that (i) it will not market any computer or videotape programs
purporting to prepare students for a college or graduate school admissions test, but nothing herein shall be understood to preclude
Franchisor from publishing and/or marketing any book designed to prepare students for the school admissions process including any
admissions or qualifications test; and, (ii) it will not engage in any business under any other name similar to or competitive with the
business franchised hereunder.)
As used herein, a program "tested by Franchisor" must have included, but is not limited to, conducting the new program among no less
than 100 participants, checking the results, and making the results available to Franchisee.
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2. Software Warranty. If Franchisee notifies Franchisor of the existence of an error in computer software that has been provided to
Franchisee by Franchisor which materially impairs Franchisee's ability to properly conduct its franchised TPR business, Franchisor
warrants to correct or rectify such error within five (5) days following its receipt of written notice from Franchisee ("the grace
period"). If any such computer software error is not corrected or rectified by Franchisor within the said grace period, Franchisor will
waive, or refund, payment of royalty-service fees otherwise payable in accordance with the following formula: 1/60 x D x R, where D
represents the number of days elapsing between the expiration of the grace period and the day on which the error was corrected, and R
represents the royalty-service fees payable by Franchisee to Franchisor for the specific test in which the error occurred for the year in
which the error occurred.
3. Assistance. Provide telephone counseling to Franchisee at reasonable times and frequency with respect to the operation and
management of the business, and make available to it the benefit of Franchisor's information, advice, expertise and know-how.
4. Advertising. Make available to Franchisee from time to time, national and/or regional TPR advertising programs as they are
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developed with advertising funds collected pursuant to Paragraph V. hereof and generally circulated. In the months of January and July
of each year during the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising
funds collected and specifically how such funds were expended during the preceding six-month period.
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5. Continuing Training. Provide, at the option of Franchisor, mandatory training program/meetings. Franchisee agrees to attend (or to
cause its designated employees to attend) one mandatory training/program meeting per year, but failure to attend because of illness or
other physical incapacity shall not be a default hereunder. All mandatory training/program meetings will be held at a location within
the continental United States designated by Franchisor. Franchisor will not charge Franchisee a fee for mandatory meetings, but all
travel, living, and personal expenses incurred by Franchisee in connection with meeting attendance will be the sole obligation of
Franchisee.
VII. OBLIGATIONS OF FRANCHISEE
A. Promotion of The Princeton Review Method and Business.
1. Franchisee agrees during the term of this Agreement to promote at all times the sale of test preparation services available from
Franchisee pursuant to the TPR Method, using its best efforts to develop and enlarge Franchisee's market for such services. Franchisee
agrees to accept new, additional, and improved course programs developed by Franchisor and designed to prepare students for college
or graduate school admissions tests, and to pay to Franchisor a new program training fee based on Franchisor's costs for providing
such training for each such program to personnel of the Franchisee as is reasonably necessary to incorporate and implement such
programs in Franchisee's business, provided, that Franchisor has tested such program (in the manner required under Paragraph VI.B.1.
hereof) for a period of at least one (1) year.
New courses or programs developed by Franchisor for inclusion in the TPR Method other than those designed to prepare students for
college or graduate school
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admissions tests will be offered to Franchisee on a first option basis as provided by Paragraph VI.B. of this Agreement.
2. Franchisee hereby agrees to operate its franchised business in accordance with methods and procedures prescribed by Franchisor in
its operating manual or other bulletins, as revised from time to time, and to equip the franchised business in accordance with the
standards of the Franchisor, including, specifically, those items listed on Appendix A of this Agreement.
B. Management Responsibility and Business Conduct.
1. Franchisee agrees that at all times during the term of this Agreement Robert Cohen, or a successor, shall devote substantial time and
effort in the active management and operation of its test preparation business, shall be responsible for the management and operation
thereof, and shall act on behalf of Franchisee in all dealings with Franchisor. The person herein identified may be changed upon giving
written notice to Franchisor.
Franchisee understands, hereby acknowledges, and agrees that the kinds and extent of business results achieved, and the financial
returns and profits, if any, expected or realized from the investment in, and the operation of, the business franchised hereunder depend
principally and substantially on Franchisee's direct, personal and active continuous participation in the management, administration
and operation of such business.
2. Franchisee will at all times give efficient service to the public meeting the performance standards set forth in Appendix B of this
Agreement. Franchisor and Franchisee shall adhere to high standards of business ethics, integrity and fair dealing, and
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do nothing which would tend to discredit or in any manner damage the reputation and good will of Franchisor, the TPR Method,
Franchisee or other Franchisees of Franchisor. Franchisee will in a reasonably timely manner provide Franchisor with reports and
information concerning the identities, test scores and other results of enrolled students in the form and manner requested.
3. Franchisee shall make all payments and reports provided herein, and pay all debts owed to Franchisor, when they shall become due.
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4. Franchisee shall conduct its business in accordance with all applicable laws and regulations, and at its own expense shall obtain and
maintain all permits, certificates, and licenses required to engage in the test preparation business franchised hereunder.
5. Franchisee warrants and covenants that during the term of this Agreement it will not engage in any capacity (a) in any educational
business activity with high school or college students except as provided herein, or (b) in any test preparation service business with any
person, without the advance, written consent of Franchisor.
C. Mandatory Attendance at Training/Program meetings. Franchisor shall have the right at its option to require Franchisee or its duly
authorized management representative to attend one training/program meeting per year, and Franchisee agrees it or its representative
will attend one such meeting at Franchisee's sole expense for all travel, living and incidental costs. Failure to attend because of illness
or other physical incapacity shall not be a default hereunder. The Franchisor shall charge Franchisee no fee for mandatory meetings.
D. Insurance. Franchisee alone shall be responsible for all loss or damage arising out of or relating to the operation of Franchisee's
business or arising out of the acts or omissions of
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Franchisee or any of its agents, employees, servants, or contractors in connection with services offered or rendered by Franchisee, and
for all claims for damage to property of for injury or death of any persons directly or indirectly resulting therefrom, and Franchisee
agrees to indemnify and hold Franchisor harmless against and from any and all such claims, loss, and damage, including costs and
reasonable attorneys fees, except for acts of the Franchisor or those committed at its direction. Franchisee at its own cost and expense
shall obtain and at all times during the term of this agreement maintain in full force and effect automobile and public liability insurance
with limits of liability for death and bodily injury of not less than $1,000,000.00 for each person injured and $50,000.00 for property
damages on each occurrence or a combined single limit of $1,000,000.00.
Said policies of insurance shall be on forms, upon terms and with insurers reasonably satisfactory to Franchisor.
Said policies of insurance shall expressly insure and protect both Franchisee and Franchisor. Franchisee shall furnish to Franchisor a
certified copy of certificate with respect to each such policy which provides that such policy shall not be canceled or modified except
upon 30 days prior written notice to Franchisor. If Franchisee fails to obtain or maintain in force any insurance as provided herein or to
furnish the certificates required hereunder, Franchisor may, in addition to other remedies it may have, maintain or obtain such
insurance and/or certificates, and Franchisee shall promptly reimburse Franchisor for all premiums and other costs incurred thereby.
VIII. PROPRIETARY MARKS
A. Validity and Use. The franchise granted hereunder and the Princeton Review Method are operated in connection with and through
the use of various trademarks, trade names,
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and service marks along with certain related words, slogans, letters, and symbols (all of which are hereafter collectively referred to as
"the Propriety Marks"). The Proprietary Marks include, but are not limited to, those registered, or which may become registered, in the
United States Patent and Trademark Office.
The following comprise the proprietary names and marks licensed and protected hereunder: THE PRINCETON REVIEW; TPR.
Franchisor reserves the right to alter, change or amend the Proprietary Marks referred to herein and to add proprietary names and
marks to those licensed hereunder. Franchisor does not warrant the availability or validity of said marks. In the event that the right to
use any name or proprietary mark granted to franchisee in connection herewith is threatened by anyone else, or if a registration
application for any such name or mark is denied or invalidated, Franchisor at its option shall have the right to either:
a. defend against any such claim or action which threatens use of the name or mark at Franchisor's sole expense; or
b. substitute a different name or mark nationally with all franchisees, in which case the substituted name or mark shall be accorded the
same treatment as provided herein; or
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c. discontinue use of the name or mark only with respect to Franchisee hereunder, in which event the parties agree that this Agreement
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shall be modified to provide that, and to limit the extent of liability to, a reduction of the royalty rate payable hereunder by Franchisee
under Paragraph III. A. from eight percent (8%) to four percent (4%), and the elimination of Franchisee's obligation to pay any
advertising fee to Franchisor whatsoever.
As between the parties hereto, Franchisee acknowledges the validity of the Proprietary Marks and acknowledges that they are the
property of Franchisor. Franchisee hereby agrees to use the Proprietary Marks only for so long as the franchise and license granted
herein remain in force, and only in connection and in accord with the Princeton Review Method, and in compliance with this
Agreement and guidelines and bulletins issued by Franchisor relating to the proper use of the Proprietary Marks.
Franchisee shall not, either during or after the term of this Agreement, do anything, or aid or assist any other party to do anything,
which would infringe upon, harm, dilute or contest the rights of Franchisor in any of the Proprietary Marks or in any other mark or
name which incorporates the name Princeton Review. Franchisee acknowledges and agrees that all rights, benefits and goodwill that
may develop in the Proprietary Marks shall inure and accrue to the full and exclusive benefit of Franchisor.
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B. Firm Name. Franchisee shall operate, advertise, and promote the business and its services under the name The Princeton Review,
and shall designate in conjunction therewith that Franchisee is an independent franchisee. Franchisee shall not, however, use the name
The Princeton Review, or any other name containing such name, or any of the Proprietary Marks in or as part of the firm or corporate
name of Franchisee. Franchisee shall, upon request of Franchisor at any time, immediately stop the use of any such name or word in its
firm or corporate name, and shall promptly take such steps as may be necessary or appropriate in the judgment of Franchisor to
remove any such name or word from Franchisee's firm or corporate name.
C. Unauthorized Use. Franchisee shall promptly report to Franchisor any unauthorized use of the Proprietary Marks that come to its
attention in any manner whatever. Upon request of Franchisor, Franchisee agrees to cooperate with Franchisor in preventing
unauthorized use of the Proprietary Marks, or any confusingly similar mark, at the sole expense of Franchisor.
IX. CONFIDENTIALITY OF THE PRINCETON REVIEW METHOD
Franchisee hereby acknowledges that only Franchisor can license rights in and to the Princeton Review Method and any parts thereof,
including all material and information divulged to Franchisee relating to the Method. Franchisee further acknowledges that all parts of
the Method whether or not trade secrets, and which are not generally known to the public, constitute confidential business information
of Franchisor which are revealed to Franchisee in trust and in confidence, solely for the purpose of enabling Franchisee to establish
and operate the test preparation business franchised by this Agreement. Such confidential information includes, but is not limited to,
educational software programs, training aids, data, and written materials; business
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procedures and processes; supplies, equipment and material lists; instructor lists; customer information; training and operations
manuals; teaching techniques; promotion and marketing aids; business forms and accounting procedures; and informational bulletins.
Franchisee agrees that during and after the term of this Agreement, it will not reveal any of such information to any other person or
firm, except to employees of Franchisee, and then only in trust and in confidence, and only to the extent such knowledge is necessary
to perform the duties of their employment, and Franchisee agrees, further, that it will not use any of such confidential business
information in any manner in connection with any business or venture in which it has or may acquire any interest, direct or indirect, in
any capacity whatever, other than in connection with the operation of the business franchised hereunder. Nothing herein shall be
understood as prohibiting Franchisee from selling any of its mailing lists to any other party.
X. IMPROVEMENTS TO THE METHOD
In order to assure maximum uniformity of quality, performance and service, nationally in all courses conducted by all franchisees.
Franchisee agrees to follow the procedures prescribed by the Princeton Review Method. As Franchisor develops or learns of
improvements, and adopts them for the method, it will inform franchisees and authorize their use in Franchisee's business. In return
and in consideration therefore, Franchisee agrees that any idea or suggested innovation or variation, which may tend to enhance or
improve the efficiency or effectiveness of test preparation services compatible with the Princeton Review Method, that Franchisee
discovers or otherwise becomes aware of during the term of this Agreement shall be submitted to Franchisor for its evaluation for
adoption and use and Franchisee agrees that all proprietary rights to such ideas, innovations or variations created or acquired by
Franchisee or any of its employees may be
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adopted and used by Franchisor and may be made available to other franchisees.
XI. RIGHTS AND LIMITATIONS ON ASSIGNABILITY BY FRANCHISEE
A. Assignment of Franchise Rights. The franchise rights granted hereunder are personal in nature to the Franchisee who is a party to
this Agreement. Franchisee hereby agrees not to sell, assign, transfer, convey, or encumber this Agreement or any right or interest
therein or thereunder, or to suffer or permit any such sale, assignment, transfer, conveyance or encumbrance to occur by operation of
law, without the prior written consent of Franchisor. Such consent shall not be unreasonably withheld, may not require that there be
any change in the terms of this Agreement or any extension thereof, and shall be determined on the bases of the personal, business, and
financial qualifications of the proposed transferee, and its acceptance of the obligations and terms of this Agreement. Franchisor will
not charge a transfer fee.
B. Franchisor's First Option to Acquire. In the event of any proposal to sell, assign, or transfer any right or interest in the business for
which Franchisee is hereunder franchised to use the Princeton Review Method (except for Franchisor-approved advertising for offers
to purchase), there shall first be submitted to Franchisor a copy of any bona fide written offer made or received, or if none, a statement
in writing of all the terms of the proposed purchaser, assignee or transferee. Thereafter, Franchisor shall have the irrevocable first right
and option to purchase or acquire any such right or interest on the same terms as stated in the offer or statement, and Franchisor may
exercise such right and option by notifying Franchisee in writing of its election to do so within thirty (30) days after its receipt of the
written offer or statement.
If Franchisor does not so notify Franchisee within the thirty (30) day period, then the proposed sale, assignment or transfer of
Franchisee's business may be made to a party other than
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Franchisor, subject to Franchisor's consent as provided in Subparagraph XI .A., but only on the terms set forth in the written offer or
statement and only to the party therein identified. Such sale, assignment or transfer shall constitute a cancellation and termination of all
interest and rights of Franchisee under this Agreement whereupon all obligations of Franchisee under Paragraph XIV. of this
Agreement shall be effective.
If the proposed sale, assignment or transfer is not made within one-hundred-twenty (120) days after receipt by Franchisor of the
written offer or statement, it shall be deemed withdrawn or rejected and the provisions of this Paragraph XI.B. shall renew and again
be fully applicable.
C. Death or Disability of Franchisee. In the event of the death or disability of an individual Franchisee, Franchisor will consent to an
assignment and transfer of this Agreement on an interim basis to the personal representative of Franchisee, and subsequently to an heir,
legatee or devisee of Franchisee, provided that each of the following conditions is fulfilled with respect to each such assignment and
transfer:
1. It shall be demonstrated to the satisfaction of Franchisor that such personal representative or successor is qualified, on the bases of
character, business experience and capability, credit standing, health, and financial resources, necessary to successfully operate
Franchisee's business in accordance with the terms of this Agreement.
2. The person, if any, to be substituted in Paragraph VII.B. of this Agreement shall have been approved by Franchisor and shall have
successfully completed the training courses then in effect for franchisees or shall have completed such courses at the next earliest time
offered by Franchisor.
3. There shall not be an existing default in any of the obligations of Franchisee
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which would constitute cause for termination pursuant to Paragraph XIII. hereunder, and all amounts owed to Franchisor as of the date
of death or disability shall be paid in full.
4. Such personal representative or successor shall have submitted to Franchisor satisfactory evidence that he has become entitled to
succeed to the rights of Franchisee hereunder, agrees to assume all obligations of Franchisee hereunder and agrees to be bound by all
the terms and provisions of this Agreement to the same extent and manner as Franchisee, and executes such personal undertakings as
Franchisor shall reasonably require.
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Any consent of Franchisor hereunder shall not constitute consent to any subsequent assignment or transfer.
XII. ASSIGNABILITY BY FRANCHISOR
This Agreement may be assigned by Franchisor or by any successor, to any party or corporation which may succeed to the business of
Franchisor or of such successor by sale of assets, merger, or consolidation or otherwise, and may also be assigned by Franchisor or by
such successor to the shareholders thereof in connection with any distribution of the assets of said party or corporation, provided, the
assignee assumes the responsibilities and obligations of Franchisor under this Agreement.
XIII. TERMINATION
Termination by Franchisor for cause. Franchisee agrees that Franchisor may terminate this Agreement prior to the expiration of its
term if any of the following conditions occur by giving Franchisee written notice of termination, provided, that wherever a reason for
termination is prohibited by, or a period of notice or a time allowed to cure a default as stated in this Paragraph
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XIII. is different from, applicable law in effect as of the effective date of this Agreement, such reason may be deemed deleted, and
such period or time shall be deemed ended, to conform with such applicable law:
A. Franchisee fails to make any payment of money owed to Franchisor when due, or fails to submit to Franchisor when due any report
required pursuant to this Agreement, and such default is not fully cured within fifteen (15) days after Franchisor gives notice of such
default to Franchisee;
B. Franchisee is declared or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a receiver is
appointed for its assets or business, or a proceeding is commenced by or against Franchisee for appointment of a receiver or for a
reorganization or similar arrangement under state law or any provisions of Federal bankruptcy law, and, if involuntary, such
proceeding is not dismissed within sixty (60) days of the filing thereof;
C. Franchisee assigns, sells, encumbers, or transfers this Agreement without Franchisor's prior written consent;
D. Subject to Paragraph XI.C. of this Agreement, Franchisee becomes unable because of its condition of health to perform the
obligations required or contemplated hereunder for a period of more than thirty (30) days.
E. Franchisee conducts no course authorized by the TPR method during any consecutive six (6) month period.
F. Franchisee jeopardizes the goodwill of Franchisor's Proprietary Marks, the Franchisee's business, the Princeton Review Method,
including failure to meet minimum standards of performance provided by this Agreement, or the reputation of Franchisor, and fails to
cure to
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the extent possible such default within thirty (30) days following notice to Franchisee by Franchisor;
G. Franchisee fails to maintain the confidentiality of the Princeton Review Method as provided in Paragraph IX. of this Agreement;
H. Franchisee defaults in the performance of the obligations, assumed under Paragraph VII. of this Agreement and fails to cure any
such default within thirty (30) days following notice to Franchisee by Franchisor;
I. Franchisee fails to maintain an independent contractor relationship with Franchisor pursuant to Paragraph XVI.F., except if caused
by Franchisor;
J. Franchisee is convicted of a felony and has exhausted all available appeals;
K. Franchisee fails to perform any material obligation assumed by Franchisee under this Agreement, other than those specifically
referred to in this Paragraph, and such default is not satisfactorily cured within thirty (30) days after Franchisor gives written notice of
such default to Franchisee, or if Franchisee repeatedly defaults or breaches obligations assumed under this Agreement;
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L. Franchisee fails to conduct its business in accordance with all applicable laws and regulations. This shall not prevent Franchisee
from contesting in good faith the validity or applicability of any purported legal obligation to the extent and in the manner permitted by
law.
Notwithstanding the foregoing, in the event that Franchisee is given Notice of Termination by Franchisor for any cause or causes
specified in Subparagraphs XIII. C., D., E., F., G., H., I., J., K., or L. of this Agreement, Franchisee shall, upon its request, be given
the opportunity for a period not to exceed one hundred twenty (120) days following Franchisee's receipt of the Notice
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of Termination, to present in writing to Franchisor the terms of, and the identity of parties to, a bona fide offer to purchase Franchisee's
The Princeton Review business, and such offer shall be subject to, and processed in accordance with, the provisions of Subparagraphs
XI.A. and XI.B. of this Agreement, provided, that during the said one hundred twenty (120) day period Franchisee does nothing to
discredit Franchisor or the franchised business, and, provided, further, that if the Notice of Termination is based on a cause specified
in Subparagraph XIII.J. of this Agreement, Franchisor shall have the option of taking over exclusive management and operating
control of the franchised business during all or any part of the period following Notice of Termination.
If a proposed sale hereunder is not completed within sixty (60) days following Franchisor's written consent to the proposed sale,
termination shall immediately thereafter be effective, and the provisions of Paragraph XIV. of this Agreement shall thereupon apply.
XIV. OBLIGATIONS UPON TERMINATION
Upon termination, expiration, or cancellation of this Agreement for any reason or in any manner, Franchisee shall cease to be an
authorized The Princeton Review franchisee, and Franchisee shall:
A. Immediately discontinue the use of the Princeton Review Method in its entirety, all Proprietary Marks, and any names, masks or
signs which may be confusingly similar thereto, and all other materials which may indicate that Franchisee is or was an authorized The
Princeton Review franchisee or otherwise associated with Franchisor. Franchisee further agrees to return to Franchisor all materials
containing any reference to Franchisor, and to cancel any pending advertising and discontinue future advertising which refers to or
connotes any relationship between Franchisee and Franchisor.
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B. Promptly pay to Franchisor all sums owing from Franchisee to Franchisor. Termination of this Agreement under any circumstances
shall not relieve Franchisee of any debt, obligation, or liability to Franchisor which may have accrued hereunder, and all obligations
and agreements of Franchisee which expressly or by implication are to be performed after the termination of this Agreement shall
survive such termination.
C. Offer, for a period of acceptance of not less than fifteen (15) days, to sell to Franchisor at its then market value, all or any portion of
equipment and supplies suitable for use is connection with the Princeton Review Method, prior to offering the same to any other party.
D. Assist Franchisor in every way possible to bring about an immediately effective, complete and orderly transfer of Franchisee's test
preparation business and students to Franchisor or to such persons as Franchisor may designate. Franchisee specifically agrees
hereunder to cooperate fully with Franchisor to assign immediately to Franchisor any and all business telephone numbers used by
Franchisee in the conduct or promotion of the franchised business, and hereby irrevocably appoints and authorizes Franchisor to act as
Franchisee's attorney-in-fact and agent to effect such assignment.
E. Maintain the confidentiality and not disclose to any person any of the confidential business or trade secrets furnished to Franchisee
by Franchisor under this Agreement or in connection with the operation of the business licensed hereunder.
F. Refrain from engaging in, or becoming in any manner financially interested in, the educational testing or any related business
similar to the franchised business for a period of one year following cessation of this Agreement within the geographic territory
described in Section I.A.1 hereunder and within twenty-five (25) miles outside the boundary lines of such territory.
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XV. INDEMNIFICATION
A. By Franchisor. In the event Franchisee is sued for damages in any suit or action based on grounds of Franchisee's infringing use of
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any Proprietary Mark licensed to Franchisee by Franchisor, or of Franchisee's infringing use of materials provided to Franchisee by
Franchisor for use in the franchised The Princeton Review business, Franchisor shall defend the suit or action and shall indemnify
Franchisee for all damages awarded, provided:
Franchisee gives Franchisor immediate notice of any suits or actions instituted or threatened against Franchisee and reasonably
cooperates in its defense, and Franchisor has the sole right to control the defense of, and the sole discretion to compromise and settle,
any such suit or action.
B. By Franchisee. In the event Franchisor is sued and found liable by final judgment for damages in any suit or action based on
grounds of Franchisee's acts or conduct not authorized by Franchisor, Franchisee shall indemnify Franchisor from all damages
awarded and reasonable attorneys' fees, provided, Franchisor gives Franchisee immediate notice of any such suit or action instituted or
threatened against Franchisor, and Franchisee has the right to participate in the defense of any such suit or action.
XVI. MISCELLANEOUS
A. Grammar. Any personal pronoun shall include the masculine, feminine and/or the neuter thereof, and the singular of any noun or
pronoun shall include the plural and plural the singular, wherever the context may require.
B. Section Headings. Section headings are for ease of reference only. They are not a part of this Agreement and shall not limit or
define the meaning of any provision.
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C. Non-waiver. No failure by Licensor to take action on account of any default by Franchisee, whether in a single instance or
repeatedly, shall constitute a waiver of any such default or of the performance required of Franchisee.
D. Invalidity. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its
application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed
modified to the extent necessary to render such provision valid or inapplicable, or to be eliminated from this Agreement, if required,
and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event
that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular
jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling.
E. Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the
subject matter hereof, and it may be modified only by a written document executed by the party sought to be bound or obligated. The
parties acknowledge hereby that there are no representations, understandings, agreements, terms or conditions not contained or
referred to in this Agreement, and that this Agreement supersedes any prior written or oral agreements, representations or inducements.
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F. Relationship of the Parties. This Agreement does cot create the relationship of principal and agent, joint ventures, or partners
between Franchisor and Franchisee, and in no circumstances shall Franchisee be considered an agent of Franchisor. Franchisee agrees
that it will do nothing to give the impression that it is an agent of Franchisor or to attempt to create any obligation on behalf of or in the
name of Franchisor.
G. Interpretation of the Agreement. This Agreement shall be interpreted under the laws of the State of New York except to the extent
that the law of the State in which the Franchisee's business is located requires that it be interpreted under the laws of such state.
H. Counterparts. This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed
a duplicate original hereof.
I. Notices. Any notice required or permitted under this Agreement shall be in writing and either delivered in person or mailed, return
receipt requested, postage fully prepaid and addressed as follows:
1. If to Franchisee, either to the address of Franchisee's business as set forth heretofore or to Franchisee's residence address; and.
2. If to Franchisor, the address of its principal offices as heretofore set forth. Addresses for notices may be changed at any time upon
written notice thereof.
J. Unless otherwise agreed, this agreement shall become effective on the date upon which it is executed by all parties hereto.
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In witness whereof, Franchisee and Franchisor have executed this Agreement on the date or dates here below written.
Witness: Franchisee
/s/ Danielle Beach /s/ Robert L. Cohen (SEAL)
----------------------------- --------------------------
Signature
Robert L. Cohen
---------------
Full Name (Printed)
Date: 6/1/86
------
Address and phone number of
Franchisee's residence:
13 Olden Street
---------------
Princeton, NJ 08540
-------------------
Attest: PRINCETON REVIEW MANAGEMENT
CORP.
(Franchisor)
/s/ Danielle Beach By: John S. Katzman
---------------------------- ------------------------
Title: Chairman
---------------------
Date: June 14, 1986
----------------------
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
Appendix A (under Paragraph VII. A.)
EQUIPMENT NECESSARY TO CONDUCT THE FRANCHISED BUSINESS:
* An IBM Personal Computer or equivalent, with 256K memory, a 10mg hard disk, serial and parallel ports.
* A Hayes compatible 1200 baud modem (internal or external)
* Two printers: one letter quality and the other dot matrix
* An optical mark reader made by Scantron Corp-option 1 (optional)
* A copying machine
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* A telephone answering machine or answering service
The equipment may be purchased from any dealer of such equipment. It may be new or used, must perform suitably.
/s/ Robert L. Cohen
------------------------------------
Franchisee
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THE PRINCETON REVIEW FRANCHISE
The parties hereto, The Princeton Review Management Corp. (the Franchisor), and Robert Cohen, a natural person (the Franchisee),
hereby acknowledge as follows: That inasmuch as the Franchisee has experience in, and has engaged in, a test preparation business
similar to the business franchised to the Franchisee by the Franchisor under a Franchise Agreement dated June 1, 1986, Franchisor is
not required to expend the resources which otherwise would he necessary to provide the Franchisee with initial and continuing
training, counseling, and other services, materials and equipment.
Therefore, it is agreed that the Franchisee shall pay a initial franchise fee to the Franchisor in the total amount of : $20,000 due
immediately, rather than the formula amount which otherwise would be payable under the standard terms of the franchise. It is further
agreed that the Franchisee has not and will not be entitled to the same extent of initial and continuing training, counseling, and other
services, materials and equipment as it would be if it were inexperienced and not engaged in a similar cost preparation business.
/s/ Robert L. Cohen
------------------------------------
Franchisee
Date: 6/1/86 John Katzman
------------------------------------
The Princeton Review Management
Corp.
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
APPENDIX B (Under Paragraph VII.B.2. )
Standards of Performance:
The Franchise represents The Princeton Review in its community; a serious breach would irreparably damage the reputation of the
company and all franchisees in the system. Any legal judgment that a franchisee has helped a student cheat, or any conviction of a
felony, is cause for termination under Paragraphs XIII.F. and J. of the Franchise Agreement.
The results of students who take the program are also very important, and will be evaluated in the interest of the success of all
involved. The method by which the performance of franchisees will be judged is as follows.
Results of testing can be measured objectively: the improvement of each student is the difference between his final test score and his
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most recent prior test score. It the student has not previously taken a particular test or preliminary test before enrolling in the course, a
comparison will be made with the student's first diagnostic test score.
To be satisfactory, a franchisee's students' results for each test offered must approximate or exceed nationwide results for that
particular test. A franchisee's performance will be deemed unsatisfactory if, for three successive terms, his students' testing results for a
specific test are more than twenty-five percent (25%) below the average results of all students of all The Princeton Review site
locations for that test for that term.
If a franchise fails to meet the test score standard of satisfactory performance, the franchisee will be liable to Franchisor for a
consultation charge not to exceed five percent (5%) of gross receipts derived from Franchisee's substandard test business for the year
in which
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performance was below standard. In return, the Franchisor, for a reasonable charge not to exceed said five percent (5%) will send one
or more representatives to the franchisee's sub-standard location for the purpose of monitoring the operation, diagnosing the causes of
inadequate results, and making recommendations for improvements. In the event the Franchisee follows the Franchisor's
recommendations for improving performance, and the location's results are not in fact improved, the full amount of the consultation
charge will be refunded.
/s/ Robert L. Cohen
------------------------------------
Franchisee
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In consideration of the foregoing and of the following mutual promises and undertakings:
1. The Franchisor agrees and consents to the assignment of any The Princeton Review Franchise Agreement between the Franchisor
and the Franchisee, including the aforesaid Franchise Agreement and any separate and independent franchise agreement growing out
of the provisions of the Addendum thereto, to either an existing or future corporation in which the Franchisee has and maintains a
controlling stock interest, provided, the Franchisee gives the Franchisor prior notice of assignment along with a copy of a written
agreement effecting the assignment in which the assignee agrees to assume all obligations of the assignor under the franchise
agreement, and provides the Franchisor with an accurate and complete listing of all stockholders of the assignee corporation setting
forth their respective stock interests. Upon receipt of the foregoing notice, copy of written assignment agreement and listing of
stockholders, the Franchisee shall be relieved as of the effective date of the assignment of personal liability under the assigned
franchise agreement except for the obligations set forth in paragraph 2 of this "Consent to Assignment."
2. The Franchisee promises and agrees:
a. To provide the Franchisor with the information provided in paragraph 1 of this Agreement and to keep such information current;
b. To remain personally liable following an assignment subject to this Agreement for the obligations of any assignee corporation for
payment of royalty-service fees and advertising fees currently due and payable at any time during the term of this Agreement to the
Franchisor, and for all currently due and payable fees or charges for materials, training, inventory, software or equipment provided to
the assignee corporation by the Franchisor; and
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c. To remain personally obligated to comply with all restrictive covenants provided under said franchise agreements, including use of
the Franchisor's business information, methods and names (under paragraph I.A.2. &
3. of the Franchise Agreement); use of the proprietary marks (under paragraph VIII. of the Franchise Agreement); maintenance of
confidentiality (under paragraph IX. of the Franchise Agreement); engaging in conflicting and competing business activity during the
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term of the franchise (under paragraph VII. B. 5. of the Franchise Agreement) and after the term of the franchise (under paragraph
XIV.F. of the Franchise Agreement); and maintaining post-term confidentially (under paragraph XIV.E. of the Franchise Agreement).
In Witness Whereof, the parties hereto have executed this Agreement the day and year first above written.
Franchisee
/s/ Danielle Beach /s/ Robert L. Cohen
------------------ -------------------
Witness
The Princeton Review
Management
Corp. Franchisor
Attest:
/s/ Danielle Beach By: /s/ John Katzman
------------------ ----------------
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CONSENT TO ASSIGNMENT OF FRANCHISE AGREEMENT
AGREEMENT made this 1st day of June, 1986, by and between Robert Cohen (hereinafter referred us as Elie Franchisee), and
Princeton Review Management Corp. (hereinafter referred to as the Franchisor),
WITNESSETH
WHEREAS, the Franchisee, a natural person, and the Franchisor have entered into a The Princeton Review Franchise Agreement
dated June 1, 1986, and
WHEREAS, said Franchise Agreement provides that the Franchisee may not assign any right or interest in the said Agreement or in
any separate and independent franchise agreement granted under the terms of the Franchise Agreement and on Addendum Agreement
thereto, and
WHEREAS, the Franchisee desires to obtain in advance the Franchisor's consent to assign his rights and interests in the aforesaid
Franchise Agreement and in independent, separate The Princeton Review franchise agreements which may be acquired in the future to
a corporation or corporations in which the Franchisee owns and exercises a controlling stock interest, and
WHEREAS, the Franchisor is willing to give its consent to such aforesaid assignment or assignment;
NOW THEREFORE, it is hereby agreed as follows:
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ADDENDUM TO FRANCHISE AGREEMENT
THIS ADDENDUM to the Franchise Agreement dated June 1, 1986 between The Princeton Review Management Corp. (the
"Franchisor") and Robert Cohen (the "Franchisee") is made by the parties thereto concurrently with the execution of the said Franchise
Agreement and is consideration thereof. The parties intend this Addendum to add to, modify and interpret the said Franchise
Agreement, and to replace and take precedence over any term, provision or condition thereof which may be contrary to, inconsistent
with, or different from any provision of this Addendum.
NOW THEREFORE, the parties agree as follows:
1. The initial term of the Franchise Agreement as provided under Paragraph I.B. thereof shall be for a period of twenty (20) years.
Subsequent terms as provided herein shall be for ten (10) years each.
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2. The Franchisor hereby approves the Franchisee as a The Princeton Review ("TPR") Franchisee and waives any right under
Paragraph VI.A.l. of the Franchise Agreement to cancel the Agreement for the reason therein provided.
3. The following franchised business site locations are hereby approved by the Franchisor pursuant to Paragraph I.A.1. of the
Franchise Agreement:
Princeton Arts Council (Princeton), Trinity Church (Princeton), Temple B'Na Shakn (East Brunswick), YMCA (East Brunswick), The
Living Center (Brielle), Middletown HS South (Middleton), 3 Olden Street (Princeton), Brookside School (Allendale), Holy Spirit
Lutheran Church (Leonia), Congregation Sons of Israel (Leonia)
The Franchisor may not withdraw its approval of any of the aforesaid site locations except with the written consent of the Franchisee.
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4. The provisions of Paragraph VIII .B. of the Franchise Agreement notwithstanding, the Franchisor hereby authorizes and approves
the Franchisee to use and trade under the following business and/or corporate name(s) in conducting the operation of the franchised
business:
Princeton Review of New Jersey, Inc.
5. If in the future the Franchisor charges any other franchisee a lesser royalty-service fee, advertising fee, or other fee than that which
is provided under the Franchisee Agreement with the Franchisee, then, and upon such event, the said fee or fees thereafter charged to
and payable by the Franchisee shall be reduced correspondingly to equal such lesser fee or fees.
6. The initial training program provided under VI. A. 1. of the Franchise Agreement will be provided to up to two personnel of the
Franchisee at any mutually convenient time or times during the initial term of the Franchise Agreement, and the persons designated
may undertake such training either at the same time or at different times.
7. The training fees or charges for mandatory new programs payable by the Franchisee to the Franchisor for its chargeable cost under
Paragraph VI. B. 1. b. of the Franchise Agreement shall include only necessary and customary business expenses and shall not exceed
a total of $250.00 for training applicable to any one said program.
8. The Franchisor's costs under Paragraph VI. B. l. c. of the Franchise Agreement relative to optional new programs may include only
necessary and customary business expenses of the Franchisor associated with the development of the program and shall exclude any
personal expenses of the Franchisor.
9. For so long as the Franchisor, The Princeton Review, Inc., or any officer, director, or controlling stockholder of either firm is
subject to currently pending litigation with Educational Testing Service, Inc., the Franchisee shall not be bound under Paragraph VII.
B. 2. of the Franchise Agreement to provide the Franchisor with the identities of enrolled students. All other information and data
described therein shall be provided, including reports of test scores, but the Franchisee is not required to provide originals or copies of
original actual test score report sheets of tests given or administered to students by any independent third party.
10. The Franchisee shall not be required to submit to the Franchisor any
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advertising of offers to sell, or for offers to purchase, the Franchisee's franchised TPR business.
11. Any compromise and/or settlement proposed to be made by the Franchisor under Paragraph XV.A. of the Franchise Agreement
shall be reasonable in relation to the business interests of the Franchisee. Before entering into any such final compromise or settlement,
the Franchisor shall give the Franchisee reasonable notice of the proposed settlement or compromise which need not be more than ten
(10) days. If within the aforesaid ten (10) day period the Franchisee gives to the Franchisor written notice stating specific grounds as to
how the proposal would unreasonably injure the Franchisee's business interests and rights and objecting to the proposal, and the parties
are unable themselves to resolve differences between them within ten (10) days following receipt of notice by the Franchisor, the
parties will submit the issues to binding arbitration in the City of New York on an expedited basis over a period not to exceed thirty
(30) days without mutual agreement otherwise. If the parties are unable to agree to a single arbitrator, each party will name one
arbitrator and they, in turn, will name a third. In the event the parties are unable to agree upon procedures, such will be conducted in
accordance with the then current rules of the American Arbitration Association. The decision of the arbitrator(s) shall be binding upon
the parties and final, and shall be enforceable by any court of competent jurisdiction.
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12. The geographical area described in Paragraph I.A.1 of this Franchise Agreement includes within it the counties listed below. At
any time or times during the term of this Agreement or any extension thereof, Franchisee or its assignee shall have the right upon thirty
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(30) days' notice in writing to the Franchisor to delete and separate out from this Agreement (the "primary agreement") any of the
aforesaid counties (in its entirety) from the rest of the geographical area, and to obtain from the Franchisor a separate and independent
franchise agreement for any one or more of said counties. The primary agreement shall thereupon be amended to delete the separated
county from this agreement. The initial franchise fee, for purposes of article II only shall remain the same, but for all other purposes
the initial franchise fee shall be deemed to have been reduced by the amount listed below with regard to the deleted county. The
franchise agreement and addendums to be issued for the new county shall be issued upon the same terms and provisions of the primary
agreement, except that the geographical area described in Paragraph I. A. 1 shall be the separated county. No initial franchise fee shall
be payable, but for all other purposes of the Agreement the initial franchise fee shall be deemed to have been set at the respective
amounts set forth below:
Mercer
$11,358
------
-------
Ocean $
5,860
----- ------
Monmouth
$19,586
--------
-------
Middlesex
$23,989
---------
-------
Somerset
$11,512
--------
-------
Union
$19,987
-----
-------
Essex
$27,860
-----
-------
Morris
$22,073
------
-------
Hudson
$10,072
------
-------
Bergen
$40,150
------
-------
Passaic $
9,618
-------
-------
Hunterdon $
4,291
---------
-------
Any sale, assignment, transfer, conveyance, or encumbrance of any separate and independent franchise agreement for any separated
county to any party other than the Franchisee under the primary agreement shall be subject to and governed by all of the terms and
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provisions of Paragraph XI. of the primary and/or separate and independent franchise agreement, including, without limitation, the
requisite prior written consent of the Franchisor and the Franchisor's first option to acquire.
13. If the Office of the Attorney General of the State of New York requires
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any change to be made to the Franchise Agreement as a condition to the registration of the TPR franchise in the State of New York,
Franchisee shall have the option to have this Agreement modified to conform to any such change or changes. Franchisee shall exercise
the option granted hereunder by giving Franchisor written notice thereof within thirty (30) days after receiving notice from Franchisor
of the change or changes.
IN WITNESS WHEREOF the parties hereto have executed this Addendum Agreement on this First day of June, 1988, intending
thereby to be legally bound.
WITNESS/ATTEST FRANCHISEE
/s/ Danielle Beach /s/ Robert L.
Cohen
-------------------
THE PRINCETON REVIEW
MANAGEMENT CORP. (SEAL)
1
Exhibit 10.38
THE PRINCETON REVIEW FRANCHISE AGREEMENT
AGREEMENT made in the City of Princeton, State of New Jersey, by and between Princeton Review Management Corp., a Delaware
Corporation (hereinafter referred to as "Franchisor"), and Matthew Rosenthal whose address is 75 Longwood Ave, Brookline, Mass.
02146 (hereinafter referred to as "Franchisee").
WITNESSETH:
RECITALS
Franchisor has developed and acquired a comprehensive method known as The Princeton Review ("TPR") Method for conducting,
operating, and marketing a test preparation business which prepares students to take college and graduate school admission tests and
other courses ("the business"). The TPR Method, consisting, in part, of confidential and proprietary educational materials, teaching
aids, techniques, systems, and formats was developed through considerable expenditures of time, effort and money, and is identified by
and with certain proprietary names and marks owned by Franchisor.
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Franchisor is in the business of licensing and franchising others, who desire to engage in the business, rights to use the TPR Method,
the Franchisor's proprietary names and marks associated with it, and teaching aids and materials as currently developed and as
expanded and improved in the future. In order to assist Franchisees to use the TPR Method efficiently and effectively in the operation
of the business, and to provide high quality and uniform standards of service, Franchisor provides or makes available to Franchisees
various initial and continuing training and services.
Franchisee desires to use the Princeton Review Method in the operation of a franchised The Princeton Review test preparation
business under a franchise granted from Franchisor by, and in conformance with the terms of, this Agreement, at a location or locations
within a territory hereafter described. Franchisee also desires to obtain and to derive the benefits of Franchisor's initial and continuing
services, training, guidance, expertise, know-how and information for its use in operating and managing the business.
Franchisee acknowledges as essential conditions of this Agreement and the rights granted hereunder, and as consideration exchanged
by and for the mutual benefit of all licensed users of the TPR Method and name, that Franchisee adhere to the uniform standards of
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quality, procedure and format prescribed by the TPR Method; preserve the confidentiality of the TPR Method; and comply fully with
the obligations hereafter set forth.
In consideration of the foregoing recitals, of the mutual promises hereafter set forth, and of other good and valuable consideration,
Franchisor and Franchisee hereby agree as follows:
I. GRANT, TERRITORIAL RIGHTS, AND TERM
A. Grant of Franchise. Franchisor hereby grants to Franchisee, and Franchisee hereby
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accepts from Franchisor a franchise and license for the term and upon the conditions and terms hereafter set forth:
1. To use the TPR Method in connection with the operation of a franchised Princeton Review test preparation business at specific,
approved site locations within the following geographical area: Mass. Counties of Essex, Middlesex, Norfolk, Suffolk, Plymouth,
Bristol, Worcester, Dukes, Nantucket and Barnstable. Franchisor shall not unreasonably withhold approval of specific site locations
proposed by Franchisee. As used herein, the term "site locations" means the place or places at which Franchisee conducts courses
available under the TPR Method. For so long as this Agreement continues in effect, Franchisor itself shall not, nor will it franchise or
license any other party or parties to, nor will it permit any officer of Franchisor to, establish and operate a similar test preparation
business under any name or mark at any location within the geographical area above described, except to the extent provided by
Subparagraph VI. B. l. c. of this Agreement.
2. To use confidential and proprietary educational materials, trade secrets and techniques, operating manuals and bulletins, and other
business methods and know-how disclosed by Franchisor, solely in connection with the operation of the business conducted at the
locations heretofore described and in accordance with the terms of this Agreement;
3. To use Franchisor's proprietary names, marks, and methods franchised and licensed hereunder only in the above described
geographical area (except with respect to media advertising or with Franchisor's advance written consent), and only in the manner
provided by this Agreement, and only for so long as this Agreement shall remain in effect
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and Franchisee is in compliance with its terms;
B. Term, Commencement of Operations, and Renewal. The term of this Agreement and of the franchise and license granted herein
shall be for a period of twenty (20) years commencing on June 1, 1986, and ending on May 31, 2006, unless sooner terminated in
accordance with the terms of this Agreement. Franchisee hereby agrees to commence operations hereunder no later than no calendar
days following the execution of this Agreement. For purposes of this Agreement, Franchisee's fiscal year shall begin on the first day of
January and end on the last day of December for so long as this Agreement remains in effect, unless changed with the written consent
of Franchisor.
Franchisee shall have the option to renew the license granted herein for successive ten (10) year terms provided all of the following
conditions have been fulfilled:
1. Franchisee gives written notice to Franchisor of Franchisee's intention to so renew no later than one hundred eighty
(180) days, nor earlier than one (1) year, prior to the expiration of this or any renewal term of this Agreement and this Agreement has
not otherwise been previously terminated; and
2. At the scheduled date of renewal, there is no pending uncured default or breach of this Agreement constituting cause for termination
under Paragraph XIII. hereof; and
3. Franchisee executes no later than one hundred twenty
(120) days prior to the expiration of the term of this Agreement or any renewal or extension hereof a renewal agreement on the terms
and conditions then being offered to new licensees, except that (a) no initial license fee shall be payable by Franchisee upon renewal;
(b) periodic
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payments shall be of no higher percentages nor payable more frequently than those provided by this Agreement; and (c) reporting
and/or record keeping requirements shall be no more extensive or frequent than those provided by this Agreement; and
4. Franchisee, either in the year immediately preceding the expiration date of the renewal option hereby provided, or on an annual
basis averaged over the last three (3) years preceding the expiration date of the renewal option hereby provided, has made royalty
payments to Franchisor of no less than thirty percent (30%) of Franchisee's initial franchise fee hereunder adjusted to correspond with
changes in the national consumer/price index or makes a supplemental cash payment in the amount of the difference between actual
payments made and the percentage payments provided herein.
II. INITIAL FRANCHISE FEE
In consideration of the franchise and license granted by this Agreement, Franchisee shall pay to Franchisor the sum of $163,715 as an
initial franchise fee payable in consecutive, non-interest bearing installment payments as follows: 15% upon execution of this
Agreement; 15% within each and every 180 day period following thereafter for five payments; and, a final payment of the full balance
remaining outstanding within the next succeeding 180 day period.
Each installment payment of the initial franchise fee shall be deemed fully earned by Franchisor upon payment thereof, and no
installment payment of the initial fee shall be refundable, in whole or in part, at any time under any circumstances except as provided
by Paragraph VI. A. l. of this Agreement.
If prior to the completion of Franchisee's first three (3) years of operation hereunder, Franchisee is by law required to cease conducting
the business franchised and conducted pursuant
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to the terms of this Agreement by reason of any unlawful act of Franchisor, Franchisee shall, as liquidated damages therefor, be
released and discharged from any obligation to make any future unpaid initial fee installment payment.
The initial fee is in addition to the periodic royalty-service fee payable pursuant to Paragraph III., the advertising fee payable under
Paragraph V., and any other fee or payment which Franchisee may incur or owe to Franchisor from time to time under this or any other
Agreement.
III. CONTINUING ROYALTY-SERVICE FEES
A. Amount and Payment of Periodic Fees. In further consideration of the rights and entitlements granted under this Agreement,
Franchisee agrees to pay to Franchisor monthly, within ten (10) days after the last day of each and every calendar month ("monthly
payment periods") during the term of this Agreement, a combined royalty-service fee in the amount equal to eight percent (8%) of
Franchisee's gross receipts collected during the preceding monthly payment period. For purposes of this Paragraph III.A., gross
receipts means the total revenues received by Franchisee for sale of goods or services made by or from Franchisee's franchised The
Princeton Review test preparation business or businesses, and shall include all revenues that have been received by Franchisee for
purchases of goods or services similar or of the same nature as those offered by the TPR Method made by current or former students
of Franchisee's The Princeton Review business. There shall be excluded from gross receipts taxes added to the sales price and
collected from the customer, credit card charges, and bona fide refunds.
B. Throughout the term of this Agreement, Franchisee shall pay to Franchisor a minimum annual royalty service fee calculated in
accordance with the following schedule:
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1st Year of Operation -- 5% of Initial Franchise Fee
$ 8,185.75
2nd Year of Operation -- 10% of Initial Franchise Fee
$16,371.50
3rd and Subsequent Years of Operation -- 15% of Initial Franchise Fee
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$24,557.25
Beginning with the fourth year of this Agreement, the dollar amount of the minimum annual royalty-service fee shall be adjusted as of
the anniversary date of this Agreement to correspond to any change in the national consumer-price index for the preceding year. If at
the end of each year of this Agreement, total royalty-service fee payments made during the year total less than the aforesaid minimum
annual royalty-service fee due for such year, Franchisee shall pay Franchisor the difference within thirty (30) days following the end of
such year.
Royalty-service fee payments received by Franchisor under this Agreement shall be under no restriction whatever but shall be
considered general funds of Franchisor for all purposes.
When, in any same calendar year, a majority of individual TPR franchises fails to attain the minimum fee, the minimum fee percentage
applicable to such year will be reduced to the percentage actually attained by a majority of franchisees.
IV. REPORTS AND RECORDS
A. Franchisee shall submit to Franchisor, at the time each monthly payment of royalty-service fee is due, an accurate and complete
statement of gross receipts (as defined in Paragraph III. A.) on forms specified, approved or provided by Franchisor and completed
according to their terms.
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B. Within thirty (30) days after each quarterly period of Franchisee's fiscal year during the term of this Agreement, Franchisee shall
submit to Franchisor a statement of financial condition (a balance sheet) and a statement of income and expense relating to the
business as of and for the period ending on such quarterly period, on forms specified, approved, or provided by Franchisor and
completed according to their terms in accordance with generally accepted accounting practices.
C. Within sixty (60) days after the close of Franchisee's fiscal year, Franchisee shall furnish to Franchisor a year-end income and
expense statement in the form requested, and certified to by Franchisee, including an entry showing the total gross receipts for the said
previous fiscal year. If this statement shows that there has been any underpayment of royalty-service fees for such fiscal year based on
gross receipts as finally adjusted and reconciled after the closing and review of Franchisee's books and records, Franchisee shall pay to
Franchisor, at the time of submitting such statement, the amount of any such underpayment. Any overpayment shall be refunded to
Franchisee within thirty (30) days.
Franchisor shall provide Franchisee with a computer program designed to generate the financial information required to be supplied by
Franchisee under Subparagraphs IV. B. or C. If said computer program, when used according to Franchisor's instruction or direction,
is defective and fails to generate the financial information herein required, Franchisee shall be under no obligation to provide such
information during the time such defective condition persists.
D. Franchisee shall maintain appropriate books and records in such a manner as to clearly and accurately show gross receipts as
defined herein. All such books and records, and income tax returns applicable to the test preparation business of Franchisee shall be
open at all
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reasonable times to inspection and verification by Franchisor or its duly authorized representatives. Franchisor shall be entitled at any
time during normal business hours to have Franchisee's books and records examined or audited at Franchisor's expense upon
seventy-two (72) hours' notice and Franchisee shall cooperate fully with the parties making such examination or audit on behalf of
Franchisor. Franchisee shall promptly pay to Franchisor or Franchisor shall refund to Franchisee, as the case may be, any under or
overpayment or royalty-service fees revealed by the examination or audit. If an examination or audit is performed due to Franchisee's
failure to submit statements of gross receipts or to maintain books and records as provided herein, or in the event that the gross
receipts reported by Franchisee for any period of twelve consecutive months are more than five percent (5%) below the actual gross
receipts of Franchisee for such period as determined by any such examination or audit, then Franchisee shall within fifteen (15) days
following notice, pay to Franchisor the reasonable and customary cost of such an examination or audit as well as all additional
amounts of royalty-service fee charges, advertising charges, and any other charges or fees shown to be due. Payment and acceptance of
such amounts shall not waive or prejudice any right of Franchisor to exercise any other remedy of this Agreement, including
termination in accordance with Paragraph XIII of this Agreement. Any delinquent royalty-service fee or other fees or charges due
Franchisor from Franchisee shall bear interest at the annual rate of eighteen percent (18%) from thirty (30) days after the date such
amount was due until paid.
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V. PROMOTION AND ADVERTISING
In addition to, and along with, the Royalty-Service fee provided herein, Franchisee shall pay monthly to Franchisor an advertising fee
equal to two percent (2%) of Franchisee's gross
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receipts as heretofore defined for the preceding month. All Franchisor-owned TPR test preparation business units shall make a
monthly contribution to the advertising fund in an amount equal to two percent (2%) of their gross receipts for the preceding month,
and Franchisor shall use all such funds it receives hereunder for the development, placement, and distribution of regional and national
consumer advertising designed in its discretion to promote consumer demand for services and products available from The Princeton
Review franchises under the TPR Method.
Franchisor shall deposit and maintain all unexpended advertising funds collected from franchisees in an appropriately identified bank
account separate and distinct from any other and used for no other purpose. In the months of January and July of each year throughout
the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising funds collected and
specifically how such funds were expended during the preceding six-month period.
Franchisee may in its own right and at its own expense promote and advertise its franchised business, provided that all such
promotional materials and advertising proposed to be used shall prior to use or publication be submitted to and approved by
Franchisor in the interest of maintaining the integrity, force, quality, image and goodwill associated with the proprietary names and
marks of Franchisor. Unless Franchisor disapproves proposed advertising within seven (7) days following its receipt thereof, approval
hereunder shall be deemed to have been given.
VI. OBLIGATIONS OF FRANCHISOR
A. Undertakings Prior to Commencement of Operations. Prior to Franchisee's commencement of operations hereunder Franchisor
shall:
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1. Training: Conduct a training program for Franchisee covering the TPR Method and courses currently available thereunder. The
training program will be at such location and time as Franchisor shall designate, and shall be at no extra charge for not more than two
(2) persons designated by Franchisee and acceptable to Franchisor. All expenses of travel, lodging, meals and other living expenses
incurred by Franchisee's personnel in attending such program shall be borne and paid for by Franchisee.
The grant of the franchise herein is conditioned upon successful completion of the training program by Franchisee or its personnel as
determined by Franchisor. If during the course of the training program or within fifteen (15) days thereafter Franchisor concludes that
Franchisee or its designee has not exhibited the aptitude, abilities, or personal characteristics necessary or desirable to operate
successfully a test preparation business in accordance with the standards and procedures of the Princeton Review Method and as a
Franchisee of Franchisor, Franchisor may, in its sole discretion and judgement, cancel this Agreement and all rights hereunder, where
permitted by applicable law, by giving notice to Franchisee and tendering to Franchisee a refund of its initial franchise fee. Franchisee
agrees that such refund shall be the full extent of Franchisor's liability and responsibility in the event of such cancellation, and that
upon cancellation Franchisee shall return to Franchisor all materials, manuals, information and all other items that Franchisee received
from Franchisor, including all copies thereof and notes thereon which Franchisee may have or control. Franchisee further agrees to
maintain strictly the confidentiality of all information received relating to the TPR Method and not to use in the operation of a test
preparation or similar business, any trade secrets or confidential information obtained from
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Franchisor in the course of the training program or otherwise.
2. Materials. Lend in trust to Franchisee the computer software and data and other course materials needed to conduct the franchised
business in accordance with the TPR Method which Franchisor may revise from time to time to reflect changes, additions and
improvements to suggested and required course offerings, procedures, policies, standards and specifications. Such material shall at all
times remain the property of Franchisor.
Franchisee agrees to follow the procedures and adhere to the policies set forth in any operating manuals or bulletin, and to maintain
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their confidentiality. Upon expiration or termination of this Agreement, or upon reasonable request of Franchisor, Franchisee shall
return such materials to Franchisor.
3. Provide assistance in locating, selecting and equipping the specific business premises within the Franchisee's geographical area
suitable for conducting the franchised business activities.
B. Continuing Undertakings. Franchisor shall provide the following continuing services for the benefit of Franchisee:
1. Method Improvements and Program Additions.
a. Make available to Franchisee from time to time all improvements and additions to the TPR Method that are circulated generally to
all other franchisees, and, except as otherwise provided hereunder, to Franchisor-owned TPR test preparation businesses. Franchisor
shall exercise due diligence to keep materials current.
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b. New, additional, or improved course programs developed by Franchisor which are designed to prepare students for college or
graduate school admissions tests will be offered exclusively for marketing by Franchisees. After any such program has been tested by
Franchisor for a period of at least one year, Franchisee shall be required to accept and put into use such program in the franchised
business. They may be subject to a fee or charge based only on the Franchisor's costs for providing Franchisee's personnel with
training necessary to incorporate and implement such programs in Franchisee's business. Franchisee shall not be required to accept
more than two (2) new programs in any calendar year.
c. Any new course developed by Franchisor other than one provided for in subparagraph b. above will be offered to Franchisee on a
first option basis before being offered to any other party. Until any such program has been tested by Franchisor for a period of at least
one year, and Franchisee has been extended a written option notice by Franchisor, Franchisee shall have the first option right to
exclusively market each program within the geographical area described in Paragraph I.A.1. of this Agreement. The first option right
herein provided shall be exercised by Franchisee by giving Franchisor written notice of its election to do so within thirty (30) days
following Franchisee's receipt of a statement of Franchisor describing the program, reciting Franchisee's right to obtain exclusive
marketing rights in said geographical area, and setting forth the fee or charge payable by Franchisee to secure such right and program.
The fee or charge payable shall be
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based on Franchisee's pro rata share of Franchisor's costs to develop the course and program. As used herein, the term "pro rata share"
means the proportionate value of the formula amount of Franchisee's initial franchise fee calculated on the basis of factors existing as
of a date six (6) months prior to the date the option offer is made ("the adjusted initial fee value") in relation to the total adjusted initial
franchise fee value on such date of all TPR franchises and of all Franchisor-owned TPR units assuming they were franchises.
In the event Franchisee does not exercise the first option rights herein provided, Franchisor shall have the right to grant said marketing
rights to any other party or parties within the aforesaid geographical area, but only under a name or mark other than THE
PRINCETON REVIEW or any other proprietary name or mark hereunder licensed to Franchisee.
(Except as otherwise agreed, Franchisor unilaterally represents that (i) it will not market any computer or videotape programs
purporting to prepare students for a college or graduate school admissions test, but nothing herein shall be understood to preclude
Franchisor from publishing and/or marketing any book designed to prepare students for the school admissions process including any
admissions or qualifications test; and, (ii) it will not engage in any business under any other name similar to or competitive with the
business franchised hereunder.)
As used herein, a program "tested by Franchisor" must have included, but is not limited to, conducting the new program among no less
than 100 participants, checking the results, and making the results available to Franchisee.
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2. Software Warranty. If Franchisee notifies Franchisor of the existence of an error in computer software that has been provided to
Franchisee by Franchisor which materially impairs Franchisee's ability to properly conduct its franchised TPR business, Franchisor
warrants to correct or rectify such error within five (5) days following its receipt of written notice from Franchisee ("the grace
period"). If any such computer software error is not corrected or rectified by Franchisor within the said grace period, Franchisor will
waive, or refund, payment of royalty-service fees otherwise payable in accordance with the following formula: 1/60 x D x R, where D
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represents the number of days elapsing between the expiration of the grace period and the day on which the error was corrected, and R
represents the royalty-service fees payable by Franchisee to Franchisor for the specific test in which the error occurred for the year in
which the error occurred.
3. Assistance. Provide telephone counseling to Franchisee at reasonable times and frequency with respect to the operation and
management of the business, and make available to it the benefit of Franchisor's information, advice, expertise and know-how.
4. Advertising. Make available to Franchisee from time to time, national and/or regional TPR advertising programs as they are
developed with advertising funds collected pursuant to Paragraph V. hereof and generally circulated. In the months of January and July
of each year during the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising
funds collected and specifically how such funds were expended during the preceding six-month period.
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5. Continuing Training. Provide, at the option of Franchisor, mandatory training program/meetings. Franchisee agrees to attend (or to
cause its designated employees to attend) one mandatory training/program meeting per year, but failure to attend because of illness or
other physical incapacity shall not be a default hereunder. All mandatory training/program meetings will be held at a location within
the continental United States designated by Franchisor. Franchisor will not charge Franchisee a fee for mandatory meetings, but all
travel, living, and personal expenses incurred by Franchisee in connection with meeting attendance will be the sole obligation of
Franchisee.
VII. OBLIGATIONS OF FRANCHISEE
A. Promotion of The Princeton Review Method and Business.
1. Franchisee agrees during the term of this Agreement to promote at all times the sale of test preparation services available from
Franchisee pursuant to the TPR Method, using its best efforts to develop and enlarge Franchisee's market for such services. Franchisee
agrees to accept new, additional, and improved course programs developed by Franchisor and designed to prepare students for college
or graduate school admissions tests, and to pay to Franchisor a new program training fee based on Franchisor's costs for providing
such training for each such program to personnel of the Franchisee as is reasonably necessary to incorporate and implement such
programs in Franchisee's business, provided, that Franchisor has tested such program (in the manner required under Paragraph VI.B.1.
hereof) for a period of at least one (1) year.
New courses or programs developed by Franchisor for inclusion in the TPR Method other than those designed to prepare students for
college or graduate school
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admissions tests will be offered to Franchisee on a first option basis as provided by Paragraph VI.B. of this Agreement.
2. Franchisee hereby agrees to operate its franchised business in accordance with methods and procedures prescribed by Franchisor in
its operating manual or other bulletins, as revised from time to time, and to equip the franchised business in accordance with the
standards of the Franchisor, including, specifically, those items listed on Appendix A of this Agreement.
B. Management Responsibility and Business Conduct.
1. Franchisee agrees that at all times during the term of this Agreement Matthew Rosenthal, or a successor, shall devote substantial
time and effort in the active management and operation of its test preparation business, shall be responsible for the management and
operation thereof, and shall act on behalf of Franchisee in all dealings with Franchisor. The person herein identified may be changed
upon giving written notice to Franchisor.
Franchisee understands, hereby acknowledges, and agrees that the kinds and extent of business results achieved, and the financial
returns and profits, if any, expected or realized from the investment in, and the operation of, the business franchised hereunder depend
principally and substantially on Franchisee's direct, personal and active continuous participation in the management, administration
and operation of such business.
2. Franchisee will at all times give efficient service to the public meeting the performance standards set forth in Appendix B of this
Agreement. Franchisor and Franchisee shall adhere to high standards of business ethics, integrity and fair dealing, and
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do nothing which would tend to discredit or in any manner damage the reputation and good will of Franchisor, the TPR Method,
Franchisee or other Franchisees of Franchisor. Franchisee will in a reasonably timely manner provide Franchisor with reports and
information concerning the identities, test scores and other results of enrolled students in the form and manner requested.
3. Franchisee shall make all payments and reports provided herein, and pay all debts owed to Franchisor, when they shall become due.
4. Franchisee shall conduct its business in accordance with all applicable laws and regulations, and at its own expense shall obtain and
maintain all permits, certificates, and licenses required to engage in the test preparation business franchised hereunder.
5. Franchisee warrants and covenants that during the term of this Agreement it will not engage in any capacity (a) in any educational
business activity with high school or college students except as provided herein, or (b) in any test preparation service business with any
person, without the advance, written consent of Franchisor.
C. Mandatory Attendance at Training/Program meetings. Franchisor shall have the right at its option to require Franchisee or its duly
authorized management representative to attend one training/program meeting per year, and Franchisee agrees it or its representative
will attend one such meeting at Franchisee's sole expense for all travel, living and incidental costs. Failure to attend because of illness
or other physical incapacity shall not be a default hereunder. The Franchisor shall charge Franchisee no fee for mandatory meetings.
D. Insurance. Franchisee alone shall be responsible for all loss or damage arising out of or relating to the operation of Franchisee's
business or arising out of the acts or omissions of
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Franchisee or any of its agents, employees, servants, or contractors in connection with services offered or rendered by Franchisee, and
for all claims for damage to property of for injury or death of any persons directly or indirectly resulting therefrom, and Franchisee
agrees to indemnify and hold Franchisor harmless against and from any and all such claims, loss, and damage, including costs and
reasonable attorneys fees, except for acts of the Franchisor or those committed at its direction. Franchisee at its own cost and expense
shall obtain and at all times during the term of this agreement maintain in full force and effect automobile and public liability insurance
with limits of liability for death and bodily injury of not less than $1,000,000.00 for each person injured and $50,000.00 for property
damages on each occurrence or a combined single limit of $1,000,000.00.
Said policies of insurance shall be on forms, upon terms and with insurers reasonably satisfactory to Franchisor.
Said policies of insurance shall expressly insure and protect both Franchisee and Franchisor. Franchisee shall furnish to Franchisor a
certified copy of certificate with respect to each such policy which provides that such policy shall not be canceled or modified except
upon 30 days prior written notice to Franchisor. If Franchisee fails to obtain or maintain in force any insurance as provided herein or to
furnish the certificates required hereunder, Franchisor may, in addition to other remedies it may have, maintain or obtain such
insurance and/or certificates, and Franchisee shall promptly reimburse Franchisor for all premiums and other costs incurred thereby.
VIII. PROPRIETARY MARKS
A. Validity and Use. The franchise granted hereunder and the Princeton Review Method are operated in connection with and through
the use of various trademarks, trade names,
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and service marks along with certain related words, slogans, letters, and symbols (all of which are hereafter collectively referred to as
"the Propriety Marks"). The Proprietary Marks include, but are not limited to, those registered, or which may become registered, in the
United States Patent and Trademark Office.
The following comprise the proprietary names and marks licensed and protected hereunder: THE PRINCETON REVIEW; TPR.
Franchisor reserves the right to alter, change or amend the Proprietary Marks referred to herein and to add proprietary names and
marks to those licensed hereunder. Franchisor does not warrant the availability or validity of said marks. In the event that the right to
use any name or proprietary mark granted to franchisee in connection herewith is threatened by anyone else, or if a registration
application for any such name or mark is denied or invalidated, Franchisor at its option shall have the right to either:
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a. defend against any such claim or action which threatens use of the name or mark at Franchisor's sole expense; or
b. substitute a different name or mark nationally with all franchisees, in which case the substituted name or mark shall be accorded the
same treatment as provided herein; or
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c. discontinue use of the name or mark only with respect to Franchisee hereunder, in which event the parties agree that this Agreement
shall be modified to provide that, and to limit the extent of liability to, a reduction of the royalty rate payable hereunder by Franchisee
under Paragraph III. A. from eight percent (8%) to four percent (4%), and the elimination of Franchisee's obligation to pay any
advertising fee to Franchisor whatsoever.
As between the parties hereto, Franchisee acknowledges the validity of the Proprietary Marks and acknowledges that they are the
property of Franchisor. Franchisee hereby agrees to use the Proprietary Marks only for so long as the franchise and license granted
herein remain in force, and only in connection and in accord with the Princeton Review Method, and in compliance with this
Agreement and guidelines and bulletins issued by Franchisor relating to the proper use of the Proprietary Marks.
Franchisee shall not, either during or after the term of this Agreement, do anything, or aid or assist any other party to do anything,
which would infringe upon, harm, dilute or contest the rights of Franchisor in any of the Proprietary Marks or in any other mark or
name which incorporates the name Princeton Review. Franchisee acknowledges and agrees that all rights, benefits and goodwill that
may develop in the Proprietary Marks shall inure and accrue to the full and exclusive benefit of Franchisor.
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B. Firm Name. Franchisee shall operate, advertise, and promote the business and its services under the name The Princeton Review,
and shall designate in conjunction therewith that Franchisee is an independent franchisee. Franchisee shall not, however, use the name
The Princeton Review, or any other name containing such name, or any of the Proprietary Marks in or as part of the firm or corporate
name of Franchisee. Franchisee shall, upon request of Franchisor at any time, immediately stop the use of any such name or word in its
firm or corporate name, and shall promptly take such steps as may be necessary or appropriate in the judgment of Franchisor to
remove any such name or word from Franchisee's firm or corporate name.
C. Unauthorized Use. Franchisee shall promptly report to Franchisor any unauthorized use of the Proprietary Marks that come to its
attention in any manner whatever. Upon request of Franchisor, Franchisee agrees to cooperate with Franchisor in preventing
unauthorized use of the Proprietary Marks, or any confusingly similar mark, at the sole expense of Franchisor.
IX. CONFIDENTIALITY OF THE PRINCETON REVIEW METHOD
Franchisee hereby acknowledges that only Franchisor can license rights in and to the Princeton Review Method and any parts thereof,
including all material and information divulged to Franchisee relating to the Method. Franchisee further acknowledges that all parts of
the Method whether or not trade secrets, and which are not generally known to the public, constitute confidential business information
of Franchisor which are revealed to Franchisee in trust and in confidence, solely for the purpose of enabling Franchisee to establish
and operate the test preparation business franchised by this Agreement. Such confidential information includes, but is not limited to,
educational software programs, training aids, data, and written materials; business
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procedures and processes; supplies, equipment and material lists; instructor lists; customer information; training and operations
manuals; teaching techniques; promotion and marketing aids; business forms and accounting procedures; and informational bulletins.
Franchisee agrees that during and after the term of this Agreement, it will not reveal any of such information to any other person or
firm, except to employees of Franchisee, and then only in trust and in confidence, and only to the extent such knowledge is necessary
to perform the duties of their employment, and Franchisee agrees, further, that it will not use any of such confidential business
information in any manner in connection with any business or venture in which it has or may acquire any interest, direct or indirect, in
any capacity whatever, other than in connection with the operation of the business franchised hereunder. Nothing herein shall be
understood as prohibiting Franchisee from selling any of its mailing lists to any other party.
X. IMPROVEMENTS TO THE METHOD
In order to assure maximum uniformity of quality, performance and service, nationally in all courses conducted by all franchisees.
Franchisee agrees to follow the procedures prescribed by the Princeton Review Method. As Franchisor develops or learns of
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improvements, and adopts them for the method, it will inform franchisees and authorize their use in Franchisee's business. In return
and in consideration therefore, Franchisee agrees that any idea or suggested innovation or variation, which may tend to enhance or
improve the efficiency or effectiveness of test preparation services compatible with the Princeton Review Method, that Franchisee
discovers or otherwise becomes aware of during the term of this Agreement shall be submitted to Franchisor for its evaluation for
adoption and use and Franchisee agrees that all proprietary rights to such ideas, innovations or variations created or acquired by
Franchisee or any of its employees may be
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adopted and used by Franchisor and may be made available to other franchisees.
XI. RIGHTS AND LIMITATIONS ON ASSIGNABILITY BY FRANCHISEE
A. Assignment of Franchise Rights. The franchise rights granted hereunder are personal in nature to the Franchisee who is a party to
this Agreement. Franchisee hereby agrees not to sell, assign, transfer, convey, or encumber this Agreement or any right or interest
therein or thereunder, or to suffer or permit any such sale, assignment, transfer, conveyance or encumbrance to occur by operation of
law, without the prior written consent of Franchisor. Such consent shall not be unreasonably withheld, may not require that there be
any change in the terms of this Agreement or any extension thereof, and shall be determined on the bases of the personal, business, and
financial qualifications of the proposed transferee, and its acceptance of the obligations and terms of this Agreement. Franchisor will
not charge a transfer fee.
B. Franchisor's First Option to Acquire. In the event of any proposal to sell, assign, or transfer any right or interest in the business for
which Franchisee is hereunder franchised to use the Princeton Review Method (except for Franchisor-approved advertising for offers
to purchase), there shall first be submitted to Franchisor a copy of any bona fide written offer made or received, or if none, a statement
in writing of all the terms of the proposed purchaser, assignee or transferee. Thereafter, Franchisor shall have the irrevocable first right
and option to purchase or acquire any such right or interest on the same terms as stated in the offer or statement, and Franchisor may
exercise such right and option by notifying Franchisee in writing of its election to do so within thirty (30) days after its receipt of the
written offer or statement.
If Franchisor does not so notify Franchisee within the thirty (30) day period, then the proposed sale, assignment or transfer of
Franchisee's business may be made to a party other than
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Franchisor, subject to Franchisor's consent as provided in Subparagraph XI .A., but only on the terms set forth in the written offer or
statement and only to the party therein identified. Such sale, assignment or transfer shall constitute a cancellation and termination of all
interest and rights of Franchisee under this Agreement whereupon all obligations of Franchisee under Paragraph XIV. of this
Agreement shall be effective.
If the proposed sale, assignment or transfer is not made within one-hundred-twenty (120) days after receipt by Franchisor of the
written offer or statement, it shall be deemed withdrawn or rejected and the provisions of this Paragraph XI.B. shall renew and again
be fully applicable.
C. Death or Disability of Franchisee. In the event of the death or disability of an individual Franchisee, Franchisor will consent to an
assignment and transfer of this Agreement on an interim basis to the personal representative of Franchisee, and subsequently to an heir,
legatee or devisee of Franchisee, provided that each of the following conditions is fulfilled with respect to each such assignment and
transfer:
1. It shall be demonstrated to the satisfaction of Franchisor that such personal representative or successor is qualified, on the bases of
character, business experience and capability, credit standing, health, and financial resources, necessary to successfully operate
Franchisee's business in accordance with the terms of this Agreement.
2. The person, if any, to be substituted in Paragraph VII .B. of this Agreement shall have been approved by Franchisor and shall have
successfully completed the training courses then in effect for franchisees or shall have completed such courses at the next earliest time
offered by Franchisor.
3. There shall not be an existing default in any of the obligations of Franchisee
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which would constitute cause for termination pursuant to Paragraph XIII. hereunder, and all amounts owed to Franchisor as of the date
of death or disability shall be paid in full.
4. Such personal representative or successor shall have submitted to Franchisor satisfactory evidence that he has become entitled to
succeed to the rights of Franchisee hereunder, agrees to assume all obligations of Franchisee hereunder and agrees to be bound by all
the terms and provisions of this Agreement to the same extent and manner as Franchisee, and executes such personal undertakings as
Franchisor shall reasonably require.
Any consent of Franchisor hereunder shall not constitute consent to any subsequent assignment or transfer.
XII. ASSIGNABILITY BY FRANCHISOR
This Agreement may be assigned by Franchisor or by any successor, to any party or corporation which may succeed to the business of
Franchisor or of such successor by sale of assets, merger, or consolidation or otherwise, and may also be assigned by Franchisor or by
such successor to the shareholders thereof in connection with any distribution of the assets of said party or corporation, provided, the
assignee assumes the responsibilities and obligations of Franchisor under this Agreement.
XIII. TERMINATION
Termination by Franchisor for cause. Franchisee agrees that Franchisor may terminate this Agreement prior to the expiration of its
term if any of the following conditions occur by giving Franchisee written notice of termination, provided, that wherever a reason for
termination is prohibited by, or a period of notice or a time allowed to cure a default as stated in this Paragraph
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XIII. is different from, applicable law in effect as of the effective date of this Agreement, such reason may be deemed deleted, and
such period or time shall be deemed ended, to conform with such applicable law:
A. Franchisee fails to make any payment of money owed to Franchisor when due, or fails to submit to Franchisor when due any report
required pursuant to this Agreement, and such default is not fully cured within fifteen (15) days after Franchisor gives notice of such
default to Franchisee;
B. Franchisee is declared or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a receiver is
appointed for its assets or business, or a proceeding is commenced by or against Franchisee for appointment of a receiver or for a
reorganization or similar arrangement under state law or any provisions of Federal bankruptcy law, and, if involuntary, such
proceeding is not dismissed within sixty (60) days of the filing thereof;
C. Franchisee assigns, sells, encumbers, or transfers this Agreement without Franchisor's prior written consent;
D. Subject to Paragraph XI.C. of this Agreement, Franchisee becomes unable because of its condition of health to perform the
obligations required or contemplated hereunder for a period of more than thirty (30) days.
E. Franchisee conducts no course authorized by the TPR method during any consecutive six (6) month period.
F. Franchisee jeopardizes the goodwill of Franchisor's Proprietary Marks, the Franchisee's business, the Princeton Review Method,
including failure to meet minimum standards of performance provided by this Agreement, or the reputation of Franchisor, and fails to
cure to
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the extent possible such default within thirty (30) days following notice to Franchisee by Franchisor;
G. Franchisee fails to maintain the confidentiality of the Princeton Review Method as provided in Paragraph IX. of this Agreement;
H. Franchisee defaults in the performance of the obligations, assumed under Paragraph VII. of this Agreement and fails to cure any
such default within thirty (30) days following notice to Franchisee by Franchisor;
I. Franchisee fails to maintain an independent contractor relationship with Franchisor pursuant to Paragraph XVI.F., except if caused
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by Franchisor;
J. Franchisee is convicted of a felony and has exhausted all available appeals;
K. Franchisee fails to perform any material obligation assumed by Franchisee under this Agreement, other than those specifically
referred to in this Paragraph, and such default is not satisfactorily cured within thirty (30) days after Franchisor gives written notice of
such default to Franchisee, or if Franchisee repeatedly defaults or breaches obligations assumed under this Agreement;
L. Franchisee fails to conduct its business in accordance with all applicable laws and regulations. This shall not prevent Franchisee
from contesting in good faith the validity or applicability of any purported legal obligation to the extent and in the manner permitted by
law.
Notwithstanding the foregoing, in the event that Franchisee is given Notice of Termination by Franchisor for any cause or causes
specified in Subparagraphs XIII. C., D., E., F., G., H., I., J., K., or L. of this Agreement, Franchisee shall, upon its request, be given
the opportunity for a period not to exceed one hundred twenty (120) days following Franchisee's receipt of the Notice
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of Termination, to present in writing to Franchisor the terms of, and the identity of parties to, a bona fide offer to purchase Franchisee's
The Princeton Review business, and such offer shall be subject to, and processed in accordance with, the provisions of Subparagraphs
XI.A. and XI.B. of this Agreement, provided, that during the said one hundred twenty (120) day period Franchisee does nothing to
discredit Franchisor or the franchised business, and, provided, further, that if the Notice of Termination is based on a cause specified
in Subparagraph XIII.J. of this Agreement, Franchisor shall have the option of taking over exclusive management and operating
control of the franchised business during all or any part of the period following Notice of Termination.
If a proposed sale hereunder is not completed within sixty (60) days following Franchisor's written consent to the proposed sale,
termination shall immediately thereafter be effective, and the provisions of Paragraph XIV. of this Agreement shall thereupon apply.
XIV. OBLIGATIONS UPON TERMINATION
Upon termination, expiration, or cancellation of this Agreement for any reason or in any manner, Franchisee shall cease to be an
authorized The Princeton Review franchisee, and Franchisee shall:
A. Immediately discontinue the use of the Princeton Review Method in its entirety, all Proprietary Marks, and any names, masks or
signs which may be confusingly similar thereto, and all other materials which may indicate that Franchisee is or was an authorized The
Princeton Review franchisee or otherwise associated with Franchisor. Franchisee further agrees to return to Franchisor all materials
containing any reference to Franchisor, and to cancel any pending advertising and discontinue future advertising which refers to or
connotes any relationship between Franchisee and Franchisor.
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B. Promptly pay to Franchisor all sums owing from Franchisee to Franchisor. Termination of this Agreement under any circumstances
shall not relieve Franchisee of any debt, obligation, or liability to Franchisor which may have accrued hereunder, and all obligations
and agreements of Franchisee which expressly or by implication are to be performed after the termination of this Agreement shall
survive such termination.
C. Offer, for a period of acceptance of not less than fifteen
(15) days, to sell to Franchisor at its then market value, all or any portion of equipment and supplies suitable for use is connection with
the Princeton Review Method, prior to offering the same to any other party.
D. Assist Franchisor in every way possible to bring about an immediately effective, complete and orderly transfer of Franchisee's test
preparation business and students to Franchisor or to such persons as Franchisor may designate. Franchisee specifically agrees
hereunder to cooperate fully with Franchisor to assign immediately to Franchisor any and all business telephone numbers used by
Franchisee in the conduct or promotion of the franchised business, and hereby irrevocably appoints and authorizes Franchisor to act as
Franchisee's attorney-in-fact and agent to effect such assignment.
E. Maintain the confidentiality and not disclose to any person any of the confidential business or trade secrets furnished to Franchisee
by Franchisor under this Agreement or in connection with the operation of the business licensed hereunder.
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F. Refrain from engaging in, or becoming in any manner financially interested in, the educational testing or any related business
similar to the franchised business for a period of one year following cessation of this Agreement within the geographic territory
described in Section I.A.1 hereunder and within twenty-five (25) miles outside the boundary lines of such territory.
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XV. INDEMNIFICATION
A. By Franchisor. In the event Franchisee is sued for damages in any suit or action based on grounds of Franchisee's infringing use of
any Proprietary Mark licensed to Franchisee by Franchisor, or of Franchisee's infringing use of materials provided to Franchisee by
Franchisor for use in the franchised The Princeton Review business, Franchisor shall defend the suit or action and shall indemnify
Franchisee for all damages awarded, provided:
Franchisee gives Franchisor immediate notice of any suits or actions instituted or threatened against Franchisee and reasonably
cooperates in its defense, and Franchisor has the sole right to control the defense of, and the sole discretion to compromise and settle,
any such suit or action.
B. By Franchisee. In the event Franchisor is sued and found liable by final judgment for damages in any suit or action based on
grounds of Franchisee's acts or conduct not authorized by Franchisor, Franchisee shall indemnify Franchisor from all damages
awarded and reasonable attorneys' fees, provided, Franchisor gives Franchisee immediate notice of any such suit or action instituted or
threatened against Franchisor, and Franchisee has the right to participate in the defense of any such suit or action.
XVI. MISCELLANEOUS
A. Grammar. Any personal pronoun shall include the masculine, feminine and/or the neuter thereof, and the singular of any noun or
pronoun shall include the plural and plural the singular, wherever the context may require.
B. Section Headings. Section headings are for ease of reference only. They are not a part of this Agreement and shall not limit or
define the meaning of any provision.
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C. Non-waiver. No failure by Licensor to take action on account of any default by Franchisee, whether in a single instance or
repeatedly, shall constitute a waiver of any such default or of the performance required of Franchisee.
D. Invalidity. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its
application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed
modified to the extent necessary to render such provision valid or inapplicable, or to be eliminated from this Agreement, if required,
and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event
that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular
jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling.
E. Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the
subject matter hereof, and it may be modified only by a written document executed by the party sought to be bound or obligated. The
parties acknowledge hereby that there are no representations, understandings, agreements, terms or conditions not contained or
referred to in this Agreement, and that this Agreement supersedes any prior written or oral agreements, representations or inducements.
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F. Relationship of the Parties. This Agreement does cot create the relationship of principal and agent, joint ventures, or partners
between Franchisor and Franchisee, and in no circumstances shall Franchisee be considered an agent of Franchisor. Franchisee agrees
that it will do nothing to give the impression that it is an agent of Franchisor or to attempt to create any obligation on behalf of or in the
name of Franchisor.
G. Interpretation of the Agreement. This Agreement shall be interpreted under the laws of the State of New York except to the extent
that the law of the State in which the Franchisee's business is located requires that it be interpreted under the laws of such state.
H. Counterparts. This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed
a duplicate original hereof.
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I. Notices. Any notice required or permitted under this Agreement shall be in writing and either delivered in person or mailed, return
receipt requested, postage fully prepaid and addressed as follows:
1. If to Franchisee, either to the address of Franchisee's business as set forth heretofore or to Franchisee's residence address; and.
2. If to Franchisor, the address of its principal offices as heretofore set forth. Addresses for notices may be changed at any time upon
written notice thereof.
J. Unless otherwise agreed, this agreement shall become effective on the date upon which it is executed by all parties hereto.
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In witness whereof, Franchisee and Franchisor have executed this Agreement on the date or dates here below written.
Witness: Franchisee
/s/ Pamela J. Kramer /s/Matthew Rosenthal (SEAL)
------------------------------- ---------------------------
Signature
Matthew Rosenthal
---------------------------
Full Name (Printed)
Date: 6/13/86
-------
Address and phone number of
Franchisee's residence:
75 Longwood Ave #7F
Brookline, MA 02146
Attest: PRINCETON REVIEW MANAGEMENT
CORP.
(Franchisor)
/s/ Andrea Rabney By: John S. Katzman
--------------------------- ------------------------
Title: Chairman
---------------------
Date: June 14, 1986
----------------------
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
Appendix A (under Paragraph VII. A.)
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EQUIPMENT NECESSARY TO CONDUCT THE FRANCHISED BUSINESS:
* An IBM Personal Computer or equivalent, with 256K memory, a 10mg hard disk, serial and parallel ports.
* A Hayes compatible 1200 baud modem (internal or external)
* Two printers: one letter quality and the other dot matrix
* An optical mark reader made by Scantron Corp-option 1 (optional)
* A copying machine
* A telephone answering machine or answering service
The equipment may be purchased from any dealer of such equipment. It may be new or used, must perform suitably.
/s/Matthew Rosenthal
----------------------------
Franchisee
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
APPENDIX B (Under Paragraph VII .B.2. )
Standards of Performance:
The Franchise represents The Princeton Review in its community; a serious breach would irreparably damage the reputation of the
company and all franchisees in the system. Any legal judgment that a franchisee has helped a student cheat, or any conviction of a
felony, is cause for termination under Paragraphs XIII .F. and J. of the Franchise Agreement.
The results of students who take the program are also very important, and will be evaluated in the interest of the success of all
involved. The method by which the performance of franchisees will be judged is as follows.
Results of testing can be measured objectively: the improvement of each student is the difference between his final test score and his
most recent prior test score. It the student has not previously taken a particular test or preliminary test before enrolling in the course, a
comparison will be made with the student's first diagnostic test score.
To be satisfactory, a franchisee's students' results for each test offered must approximate or exceed nationwide results for that
particular test. A franchisee's performance will be deemed unsatisfactory if, for three successive terms, his students' testing results for a
specific test are more than twenty-five percent (25%) below the average results of all students of all The Princeton Review site
locations for that test for that term.
If a franchise fails to meet the test score standard of satisfactory performance, the franchisee will be liable to Franchisor for a
consultation charge not to exceed five percent (5%) of gross receipts derived from Franchisee's substandard test business for the year
in which performance was below standard. In return, the Franchisor, for a reasonable charge not to exceed
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said five percent (5%) will send one or more representatives to the franchisee's sub-standard location for the purpose of monitoring the
operation, diagnosing the causes of inadequate results, and making recommendations for improvements. In the event the Franchisee
follows the Franchisor's recommendations for improving performance, and the location's results are not in fact improved, the full
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amount of the consultation charge will be refunded.
/s/ Matthew
Rosenthal
---------------------
Franchisee
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ADDENDUM TO FRANCHISE AGREEMENT
THIS ADDENDUM to the Franchise Agreement dated June 1, 1986 between The Princeton Review Management Corp. (the
"Franchisor") and Matthew Rosenthal (the "Franchisee") is made by the parties thereto concurrently with the execution of the said
Franchise Agreement and is consideration thereof. The parties intend this Addendum to add to, modify and interpret the said Franchise
Agreement, and to replace and take precedence over any term, provision or condition thereof which may be contrary to, inconsistent
with, or different from any provision of this Addendum.
NOW THEREFORE, the parties agree as follows:
1. The initial term of the Franchise Agreement as provided under Paragraph I.B. thereof shall be for a period of twenty (20) years.
Subsequent terms as provided herein shall be for ten (10) years each.
2. The Franchisor hereby approves the Franchisee as a The Princeton Review ("TPR") Franchisee and waives any right under
Paragraph VI.A.l. of the Franchise Agreement to cancel the Agreement for the reason therein provided.
3. The following franchised business site locations are hereby approved by the Franchisor pursuant to Paragraph I.A.1. of the
Franchise Agreement:
The Noble & Greenough School (Brookline), Swampscott HS (Swampscott), Governor Dummer Academy (Byfield), The Fenn School
(Concord), Beaver Country Day (Chesnut Hill), Randolph HS (Randolph), Newberry Junior College (Brookline), Montrose School
(Monstrose), St. Marks School (Worcester)
The Franchisor may not withdraw its approval of any of the aforesaid site locations except with the written consent of the Franchisee.
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4. The provisions of Paragraph VIII .B. of the Franchise Agreement notwithstanding, the Franchisor hereby authorizes and approves
the Franchisee to use and trade under the following business and/or corporate name(s) in conducting the operation of the franchised
business:
Princeton Review of Boston, Inc.
5. If in the future the Franchisor charges any other franchisee a lesser royalty-service fee, advertising fee, or other fee than that which
is provided under the Franchisee Agreement with the Franchisee, then, and upon such event, the said fee or fees thereafter charged to
and payable by the Franchisee shall be reduced correspondingly to equal such lesser fee or fees.
6. The initial training program provided under VI. A. 1. of the Franchise Agreement will be provided to up to two personnel of the
Franchisee at any mutually convenient time or times during the initial term of the Franchise Agreement, and the persons designated
may undertake such training either at the same time or at different times.
7. The training fees or charges for mandatory new programs payable by the Franchisee to the Franchisor for its chargeable cost under
Paragraph VI. B. 1. b. of the Franchise Agreement shall include only necessary and customary business expenses and shall not exceed
a total of $250.00 for training applicable to any one said program.
2002. EDGAR Online, Inc.
8. The Franchisor's costs under Paragraph VI. B. l. c. of the Franchise Agreement relative to optional new programs may include only
necessary and customary business expenses of the Franchisor associated with the development of the program and shall exclude any
personal expenses of the Franchisor.
9. For so long as the Franchisor, The Princeton Review, Inc., or any officer, director, or controlling stockholder of either firm is
subject to currently pending litigation with Educational Testing Service, Inc., the Franchisee shall not be bound under Paragraph VII.
B. 2. of the Franchise Agreement to provide the Franchisor with the identities of enrolled students. All other information and data
described therein shall be provided, including reports of test scores, but the Franchisee is not required to provide originals or copies of
original actual test score report sheets of tests given or administered to students by any independent third party.
10. The Franchisee shall not be required to submit to the Franchisor any
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advertising of offers to sell, or for offers to purchase, the Franchisee's franchised TPR business.
11. Any compromise and/or settlement proposed to be made by the Franchisor under Paragraph XV.A. of the Franchise Agreement
shall be reasonable in relation to the business interests of the Franchisee. Before entering into any such final compromise or settlement,
the Franchisor shall give the Franchisee reasonable notice of the proposed settlement or compromise which need not be more than ten
(10) days. If within the aforesaid ten (10) day period the Franchisee gives to the Franchisor written notice stating specific grounds as to
how the proposal would unreasonably injure the Franchisee's business interests and rights and objecting to the proposal, and the parties
are unable themselves to resolve differences between them within ten (10) days following receipt of notice by the Franchisor, the
parties will submit the issues to binding arbitration in the City of New York on an expedited basis over a period not to exceed thirty
(30) days without mutual agreement otherwise. If the parties are unable to agree to a single arbitrator, each party will name one
arbitrator and they, in turn, will name a third. In the event the parties are unable to agree upon procedures, such will be conducted in
accordance with the then current rules of the American Arbitration Association. The decision of the arbitrator(s) shall be binding upon
the parties and final, and shall be enforceable by any court of competent jurisdiction.
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12. The geographical area described in Paragraph I.A.1 of this Franchise Agreement includes within it the counties listed below. At
any time or times during the term of this Agreement or any extension thereof, Franchisee or its assignee shall have the right upon thirty
(30) days' notice in writing to the Franchisor to delete and separate out from this Agreement (the "primary agreement") any of the
aforesaid counties (in its entirety) from the rest of the geographical area, and to obtain from the Franchisor a separate and independent
franchise agreement for any one or more of said counties. The primary agreement shall thereupon be amended to delete the separated
county from this agreement. The initial franchise fee, for purposes of article II only shall remain the same, but for all other purposes
the initial franchise fee shall be deemed to have been reduced by the amount listed below with regard to the deleted county. The
franchise agreement and addendums to be issued for the new county shall be issued upon the same terms and provisions of the primary
agreement, except that the geographical area described in Paragraph I. A. 1 shall be the separated county. No initial franchise fee shall
be payable, but for all other purposes of the Agreement the initial franchise fee shall be deemed to have been set at the respective
amounts set forth below:
Essex $20,457 Bristol $
6,924
Middlesex 62,505 Worcester
13,959
Norfolk 29,934 Dukes
313
Suffolk 14,207 Nantucket
112
Plymouth 11,609 Barnstable
3,695
2002. EDGAR Online, Inc.
Any sale, assignment, transfer, conveyance, or encumbrance of any separate and independent franchise agreement for any separated
county to any party other than the Franchisee under the primary agreement shall be subject to and governed by all of the terms and
provisions of Paragraph XI. of the primary and/or separate and independent franchise agreement, including, without limitation, the
requisite prior written consent of the Franchisor and the Franchisor's first option to acquire.
13. If the Office of the Attorney General of the State of New York requires any change to be made to the Franchise Agreement as a
condition to the registration of the TPR
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franchise in the State of New York, Franchisee shall have the option to have this Agreement modified to conform to any such change
or changes. Franchisee shall exercise the option granted hereunder by giving Franchisor written notice thereof within thirty (30) days
after receiving notice from Franchisor of the change or changes.
IN WITNESS WHEREOF the parties hereto have executed this Addendum Agreement on this 13th day of June, 1986, intending
thereby to be legally bound.
WITNESS/ATTEST FRANCHISEE
/s/ Pamela J. Kramer /s/ Matthew
Rosenthal
--------------------
-----------------
THE PRINCETON REVIEW
MANAGEMENT CORP. (SEAL)
/s/ Andrea Rabney By: /s/ John Katzman
----------------- -----------------
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CONSENT TO ASSIGNMENT OF FRANCHISE AGREEMENT
AGREEMENT made this 1st day of June, 1986, by and between Matthew Rosenthal (hereinafter referred us as the Franchisee), and
Princeton Review Management Corp. (hereinafter referred to as the Franchisor), WITNESSETH:
WHEREAS, the Franchisee, a natural person, and the Franchisor have entered into a The Princeton Review Franchise Agreement
dated June 1, 1986, and
WHEREAS, said Franchise Agreement provides that the Franchisee may not assign any right or interest in the said Agreement or in
any separate and independent franchise agreement granted under the terms of the Franchise Agreement and on Addendum Agreement
thereto, and
WHEREAS, the Franchisee desires to obtain in advance the Franchisor's consent to assign his rights and interests in the aforesaid
Franchise Agreement and in independent, separate The Princeton Review franchise agreements which may be acquired in the future to
a corporation or corporations in which the Franchisee owns and exercises a controlling stock interest, and
WHEREAS, the Franchisor is willing to give its consent to such aforesaid assignment or assignment;
NOW THEREFORE, it is hereby agreed as follows:
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In consideration of the foregoing and of the following mutual promises and undertakings:
2002. EDGAR Online, Inc.
14. The Franchisor agrees and consents to the assignment of any The Princeton Review Franchise Agreement between the Franchisor
and the Franchisee, including the aforesaid Franchise Agreement and any separate and independent franchise agreement growing out
of the provisions of the Addendum thereto, to either an existing or future corporation in which the Franchisee has and maintains a
controlling stock interest, provided, the Franchisee gives the Franchisor prior notice of assignment along with a copy of a written
agreement effecting the assignment in which the assignee agrees to assume all obligations of the assignor under the franchise
agreement, and provides the Franchisor with an accurate and complete listing of all stockholders of the assignee corporation setting
forth their respective stock interests. Upon receipt of the foregoing notice, copy of written assignment agreement and listing of
stockholders, the Franchisee shall be relieved as of the effective date of the assignment of personal liability under the assigned
franchise agreement except for the obligations set forth in paragraph 2 of this "Consent to Assignment."
2. The Franchisee promises and agrees:
a. To provide the Franchisor with the information provided in paragraph 1 of this Agreement and to keep such information current;
b. To remain personally liable following an assignment subject to this Agreement for the obligations of any assignee corporation for
payment of royalty-service fees and advertising fees currently due and payable at any time during the term of this Agreement to the
Franchisor, and for all currently due and payable fees or charges for materials, training, inventory, software or equipment provided to
the assignee corporation by the Franchisor; and
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c. To remain personally obligated to comply with all restrictive covenants provided under said franchise agreements, including use of
the Franchisor's business information, methods and names (under paragraph I.A.2. & 3. of the Franchise Agreement); use of the
proprietary marks (under paragraph VIII. of the Franchise Agreement); maintenance of confidentiality (under paragraph IX. of the
Franchise Agreement); engaging in conflicting and competing business activity during the term of the franchise (under paragraph VII.
B. 5. of the Franchise Agreement) and after the term of the franchise (under paragraph XIV.F. of the Franchise Agreement); and
maintaining post-term confidentially (under paragraph XIV.E. of the Franchise Agreement).
In Witness Whereof, the parties hereto have executed this Agreement the day and year first above written.
Franchisee
/s/ Pamela J. Kramer /s/ Matthew Rosenthal
-------------------- ----------------------
Witness
The Princeton Review
Management
Corp. Franchisor
Attest:
/s/ Mark Chernis By: /s/ John Katzman
---------------- ----------------
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AGREEMENT OF AMENDMENT
AND
MEMORANDUM OF CLARIFICATION
2002. EDGAR Online, Inc.
Matthew Rosenthal, The Princeton Review Management Corp., and The Princeton Review, Inc., the parties hereto, in consideration of
the mutual desire and intention to clarify, and amend as required, certain previous agreements and transactions between them, hereby
agree and acknowledge as follows:
1. That the initial franchise fee provided under the franchise agreement entered into by Matthew Rosenthal (as franchisee) and The
Princeton Review Management Corp. (as franchisor) dated June 1, 1986, and as amended by an addendum to said franchise agreement
dated June 13, 1986, should have been, and, as required, hereby is amended, modified and/or clarified to be, in the total sum of
One-Hundred-Thousand Dollars ($100,000.00), such sum being payable in three installments, the first of which in the amount of
$25,000.00 was due by June 1, 1986, the second of which in the amount of $25,000.00 was due by January 1, 1987, and the third and
final of which in the amount of $50,000.00 is due by July 1, 1987.
2. That the payment of $50,000.00 by Matthew Rosenthal on or before June 1, 1986, made payable to The Princeton Review, Inc., was
intended by the parties to be allocated and credited as follows:
(a) The sum of $25,000.00 in the payment of the first installment payment due under the aforesaid franchise agreement;
(b) The sum of $25,000.00 in repayment of a loan made by the Princeton Review, Inc. to The Princeton Review of Massachusetts, Inc.
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In Witness Whereof, the parties hereto have executed this Agreement on the dates below written intending thereby to be legally bound.
Date: 3/25/87 /s/ Matthew Rosenthal
(SEAL)
---------------------
--------------------------------------------
Date: 4/2/87 The Princeton Review Management Corp.
---------------------
By: /s/ John Katzman
-----------------------------------------
Date: 4/2/87 The Princeton Review Inc.
---------------------
By: /s/ John Katzman
-----------------------------------------
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THE PRINCETON REVIEW FRANCHISE
The parties hereto, The Princeton Review Management Corp. (the Franchisor), and Matthew Rosenthal, a natural person (the
Franchisee), hereby acknowledge as follows: That inasmuch as the Franchisee has experience in, and has engaged in, a test preparation
business similar to the business franchised to the Franchisee by the Franchisor under a Franchise Agreement dated June 1, 1986,
Franchisor is not required to expend the resources which otherwise would he necessary to provide the Franchisee with initial and
continuing training, counseling, and other services, materials and equipment.
Therefore, it is agreed that the Franchisee shall pay a initial franchise fee to the Franchisor in the total amount of: $125,000 ($50,000
paid and $25,000 to be paid on or before Jan. 1, 1987 and $50,000 on or before July 1, 1987, rather than the formula amount which
otherwise would be payable under the standard terms of the franchise. It is further agreed that the Franchisee has not and will not be
entitled to the same extent of initial and continuing training, counseling, and other services, materials and equipment as it would be if it
were inexperienced and not engaged in a similar cost preparation business.
2002. EDGAR Online, Inc.
/s/ Matthew Rosenthal
------------------------------
Franchisee
Date: 6/13/86 /s/ John Katzman
------------------------------------
The Princeton Review Management
Corp.
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1
Exhibit 10.39
THE PRINCETON REVIEW FRANCHISE AGREEMENT
AGREEMENT made in the City of New York, State of New York, by and between Princeton Review Management Corp., a Delaware
Corporation (hereinafter referred to as "Franchisor"), and Lloyd Eric Cotsen whose address is 1880 Veteran Avenue, Suite 310, Los
Angeles, California 90025 (hereinafter referred to as "Franchisee").
WITNESSETH:
RECITALS
Franchisor has developed and acquired a comprehensive method known as The Princeton Review ("TPR") Method for conducting,
operating, and marketing a test preparation business which prepares students to take college and graduate school admission tests and
other courses ("the business"). The TPR Method, consisting, in part, of confidential and proprietary educational materials, teaching
aids, techniques, systems, and formats was developed through considerable expenditures of time, effort and money, and is identified by
and with certain proprietary names and marks owned by Franchisor.
2
Franchisor is in the business of licensing and franchising others, who desire to engage in the business, rights to use the TPR Method,
the Franchisor's proprietary names and marks associated with it, and teaching aids and materials as currently developed and as
expanded and improved in the future. In order to assist Franchisees to use the TPR Method efficiently and effectively in the operation
of the business, and to provide high quality and uniform standards of service, Franchisor provides or makes available to Franchisees
various initial and continuing training and services.
Franchisee desires to use the Princeton Review Method in the operation of a franchised The Princeton Review test preparation
business under a franchise granted from Franchisor by, and in conformance with the terms of, this Agreement, at a location or locations
within a territory hereafter described. Franchisee also desires to obtain and to derive the benefits of Franchisor's initial and continuing
services, training, guidance, expertise, know-how and information for its use in operating and managing the business.
Franchisee acknowledges as essential conditions of this Agreement and the rights granted hereunder, and as consideration exchanged
by and for the mutual benefit of all licensed users of the TPR Method and name, that Franchisee adhere to the uniform standards of
quality, procedure and format prescribed by the TPR Method; preserve the confidentiality of the TPR Method; and comply fully with
the obligations hereafter set forth.
In consideration of the foregoing recitals, of the mutual promises hereafter set forth, and of other good and valuable consideration,
Franchisor and Franchisee hereby agree as follows:
I. GRANT, TERRITORIAL RIGHTS, AND TERM
A. Grant of Franchise. Franchisor hereby grants to Franchisee, and Franchisee hereby
2002. EDGAR Online, Inc.
2
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accepts from Franchisor a franchise and license for the term and upon the conditions and terms hereafter set forth:
1. To use the TPR Method in connection with the operation of a franchised Princeton Review test preparation business at specific,
approved site locations within the following geographical area Los Angeles County, San Bernardino County, Santa Barbara County,
and Ventura County in the State of California. Franchisor shall not unreasonably withhold approval of specific site locations proposed
by Franchisee. As used herein, the term "site locations" means the place or places at which Franchisee conducts courses available
under the TPR Method. For so long as this Agreement continues in effect, Franchisor itself shall not, nor will it franchise or license
any other party or parties to, nor will it permit any officer of Franchisor to, establish and operate a similar test preparation business
under any name or mark at any location within the geographical area above described, except to the extent provided by Subparagraph
VI. B. l. c. of this Agreement.
2. To use confidential and proprietary educational materials, trade secrets and techniques, operating manuals and bulletins, and other
business methods and know-how disclosed by Franchisor, solely in connection with the operation of the business conducted at the
locations heretofore described and in accordance with the terms of this Agreement;
3. To use Franchisor's proprietary names, marks, and methods franchised and licensed hereunder only in the above described
geographical area (except with respect to media advertising or with Franchisor's advance written consent), and only in the manner
provided by this Agreement, and only for so long as this Agreement shall remain in effect and Franchisee is in compliance with its
terms;
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B. Term, Commencement of Operations, and Renewal. The term of this Agreement and of the franchise and license granted herein
shall be for a period of ten (10) years commencing on July 1, 1986, and ending on June 30, 1996, unless sooner terminated in
accordance with the terms of this Agreement. Franchisee hereby agrees to commence operations hereunder no later than Zero calendar
days following the execution of this Agreement. For purposes of this Agreement, Franchisee's fiscal year shall begin on the 1st day of
January and end on the 31st day of December for so long as this Agreement remains in effect, unless changed with the written consent
of Franchisor.
Franchisee shall have the option to renew the license granted herein for successive ten (10) year terms provided all of the following
conditions have been fulfilled:
1. Franchisee gives written notice to Franchisor of Franchisee's intention to so renew no later than one hundred eighty
(180) days, nor earlier than one (1) year, prior to the expiration of this or any renewal term of this Agreement and this Agreement has
not otherwise been previously terminated; and
2. At the scheduled date of renewal, there is no pending uncured default or breach of this Agreement constituting cause for termination
under Paragraph XIII. hereof; and
3. Franchisee executes no later than one hundred twenty (120) days prior to the expiration of the term of this Agreement or any
renewal or extension hereof a renewal agreement on the terms and conditions then being offered to new licensees, except that (a) no
initial license fee shall be payable by Franchisee upon renewal; (b) periodic payments shall be of no higher percentages nor payable
more frequently than those
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provided by this Agreement; and (c) reporting and/or record keeping requirements shall be no more extensive or frequent than those
provided by this Agreement; and
4. Franchisee, either in the year immediately preceding the expiration date of the renewal option hereby provided, or on an annual
basis averaged over the last three (3) years preceding the expiration date of the renewal option hereby provided, has made royalty
payments to Franchisor of no less than thirty percent (30%) of Franchisee's initial franchise fee hereunder adjusted to correspond with
changes in the national consumer/price index or makes a supplemental cash payment in the amount of the difference between actual
payments made and the percentage payments provided herein.
II. INITIAL FRANCHISE FEE
2002. EDGAR Online, Inc.
In consideration of the franchise and license granted by this Agreement, Franchisee shall pay to Franchisor the sum of $225,653 (Two
Hundred Twenty Five Thousand, Six Hundred Fifty Three Dollars) as an initial franchise fee payable in consecutive, non-interest
bearing installment payments as follows: 15% upon execution of this Agreement; 15% within each and every 180 day period following
thereafter for five payments; and, a final payment of the full balance remaining outstanding within the next succeeding 180 day period.
Each installment payment of the initial franchise fee shall be deemed fully earned by Franchisor upon payment thereof, and no
installment payment of the initial fee shall be refundable, in whole or in part, at any time under any circumstances except as provided
by Paragraph VI. A. l. of this Agreement.
If prior to the completion of Franchisee's first three (3) years of operation hereunder, Franchisee is by law required to cease conducting
the business franchised and conducted pursuant
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to the terms of this Agreement by reason of any unlawful act of Franchisor, Franchisee shall, as liquidated damages therefor, be
released and discharged from any obligation to make any future unpaid initial fee installment payment.
The initial fee is in addition to the periodic royalty-service fee payable pursuant to Paragraph III., the advertising fee payable under
Paragraph V., and any other fee or payment which Franchisee may incur or owe to Franchisor from time to time under this or any other
Agreement.
III. CONTINUING ROYALTY-SERVICE FEES
A. Amount and Payment of Periodic Fees. In further consideration of the rights and entitlements granted under this Agreement,
Franchisee agrees to pay to Franchisor monthly, within ten (10) days after the last day of each and every calendar month ("monthly
payment periods") during the term of this Agreement, a combined royalty-service fee in the amount equal to eight percent (8%) of
Franchisee's gross receipts collected during the preceding monthly payment period. For purposes of this Paragraph III.A., gross
receipts means the total revenues received by Franchisee for sale of goods or services made by or from Franchisee's franchised The
Princeton Review test preparation business or businesses, and shall include all revenues that have been received by Franchisee for
purchases of goods or services similar or of the same nature as those offered by the TPR Method made by current or former students
of Franchisee's The Princeton Review business. There shall be excluded from gross receipts taxes added to the sales price and
collected from the customer, credit card charges, and bona fide refunds.
B. Throughout the term of this Agreement, Franchisee shall pay to Franchisor a minimum annual royalty service fee calculated in
accordance with the following schedule:
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1st Year of Operation -- 5% of Initial Franchise Fee
$11,282.65
2nd Year of Operation -- 10% of Initial Franchise Fee
$22,565.30
3rd and Subsequent Years of Operation -- 15% of Initial Franchise Fee
$33,847.95
Beginning with the fourth year of this Agreement, the dollar amount of the minimum annual royalty-service fee shall be adjusted as of
the anniversary date of this Agreement to correspond to any change in the national consumer-price index for the preceding year. If at
the end of each year of this Agreement, total royalty-service fee payments made during the year total less than the aforesaid minimum
annual royalty-service fee due for such year, Franchisee shall pay Franchisor the difference within thirty (30) days following the end of
such year.
Royalty-service fee payments received by Franchisor under this Agreement shall be under no restriction whatever but shall be
considered general funds of Franchisor for all purposes.
2002. EDGAR Online, Inc.
When, in any same calendar year, a majority of individual TPR franchises fails to attain the minimum fee, the minimum fee percentage
applicable to such year will be reduced to the percentage actually attained by a majority of franchisees.
IV. REPORTS AND RECORDS
A. Franchisee shall submit to Franchisor, at the time each monthly payment of royalty-service fee is due, an accurate and complete
statement of gross receipts (as defined in Paragraph III. A.) on forms specified, approved or provided by Franchisor and completed
according to their terms.
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B. Within thirty (30) days after each quarterly period of Franchisee's fiscal year during the term of this Agreement, Franchisee shall
submit to Franchisor a statement of financial condition (a balance sheet) and a statement of income and expense relating to the
business as of and for the period ending on such quarterly period, on forms specified, approved, or provided by Franchisor and
completed according to their terms in accordance with generally accepted accounting practices.
C. Within sixty (60) days after the close of Franchisee's fiscal year, Franchisee shall furnish to Franchisor a year-end income and
expense statement in the form requested, and certified to by Franchisee, including an entry showing the total gross receipts for the said
previous fiscal year. If this statement shows that there has been any underpayment of royalty-service fees for such fiscal year based on
gross receipts as finally adjusted and reconciled after the closing and review of Franchisee's books and records, Franchisee shall pay to
Franchisor, at the time of submitting such statement, the amount of any such underpayment. Any overpayment shall be refunded to
Franchisee within thirty
(30) days.
Franchisor shall provide Franchisee with a computer program designed to generate the financial information required to be supplied by
Franchisee under Subparagraphs IV. B. or C. If said computer program, when used according to Franchisor's instruction or direction,
is defective and fails to generate the financial information herein required, Franchisee shall be under no obligation to provide such
information during the time such defective condition persists.
D. Franchisee shall maintain appropriate books and records in such a manner as to clearly and accurately show gross receipts as
defined herein. All such books and records, and income tax returns applicable to the test preparation business of Franchisee shall be
open at all
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reasonable times to inspection and verification by Franchisor or its duly authorized representatives. Franchisor shall be entitled at any
time during normal business hours to have Franchisee's books and records examined or audited at Franchisor's expense upon
seventy-two (72) hours' notice and Franchisee shall cooperate fully with the parties making such examination or audit on behalf of
Franchisor. Franchisee shall promptly pay to Franchisor or Franchisor shall refund to Franchisee, as the case may be, any under or
overpayment or royalty-service fees revealed by the examination or audit. If an examination or audit is performed due to Franchisee's
failure to submit statements of gross receipts or to maintain books and records as provided herein, or in the event that the gross
receipts reported by Franchisee for any period of twelve consecutive months are more than five percent (5%) below the actual gross
receipts of Franchisee for such period as determined by any such examination or audit, then Franchisee shall within fifteen (15) days
following notice, pay to Franchisor the reasonable and customary cost of such an examination or audit as well as all additional
amounts of royalty-service fee charges, advertising charges, and any other charges or fees shown to be due. Payment and acceptance of
such amounts shall not waive or prejudice any right of Franchisor to exercise any other remedy of this Agreement, including
termination in accordance with Paragraph XIII of this Agreement. Any delinquent royalty-service fee or other fees or charges due
Franchisor from Franchisee shall bear interest at the annual rate of eighteen percent (18%) from thirty (30) days after the date such
amount was due until paid.
V. PROMOTION AND ADVERTISING
In addition to, and along with, the Royalty-Service fee provided herein, Franchisee shall pay monthly to Franchisor an advertising fee
equal to two percent (2%) of Franchisee's gross
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receipts as heretofore defined for the preceding month. All Franchisor-owned TPR test preparation business units shall make a
monthly contribution to the advertising fund in an amount equal to two percent (2%) of their gross receipts for the preceding month,
2002. EDGAR Online, Inc.
and Franchisor shall use all such funds it receives hereunder for the development, placement, and distribution of regional and national
consumer advertising designed in its discretion to promote consumer demand for services and products available from The Princeton
Review franchises under the TPR Method.
Franchisor shall deposit and maintain all unexpended advertising funds collected from franchisees in an appropriately identified bank
account separate and distinct from any other and used for no other purpose. In the months of January and July of each year throughout
the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising funds collected and
specifically how such funds were expended during the preceding six-month period.
Franchisee may in its own right and at its own expense promote and advertise its franchised business, provided that all such
promotional materials and advertising proposed to be used shall prior to use or publication be submitted to and approved by
Franchisor in the interest of maintaining the integrity, force, quality, image and goodwill associated with the proprietary names and
marks of Franchisor. Unless Franchisor disapproves proposed advertising within seven (7) days following its receipt thereof, approval
hereunder shall be deemed to have been given.
VI. OBLIGATIONS OF FRANCHISOR
A. Undertakings Prior to Commencement of Operations. Prior to Franchisee's commencement of operations hereunder Franchisor
shall:
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1. Training: Conduct a training program for Franchisee covering the TPR Method and courses currently available thereunder. The
training program will be at such location and time as Franchisor shall designate, and shall be at no extra charge for not more than two
(2) persons designated by Franchisee and acceptable to Franchisor. All expenses of travel, lodging, meals and other living expenses
incurred by Franchisee's personnel in attending such program shall be borne and paid for by Franchisee.
The grant of the franchise herein is conditioned upon successful completion of the training program by Franchisee or its personnel as
determined by Franchisor. If during the course of the training program or within fifteen (15) days thereafter Franchisor concludes that
Franchisee or its designee has not exhibited the aptitude, abilities, or personal characteristics necessary or desirable to operate
successfully a test preparation business in accordance with the standards and procedures of the Princeton Review Method and as a
Franchisee of Franchisor, Franchisor may, in its sole discretion and judgement, cancel this Agreement and all rights hereunder, where
permitted by applicable law, by giving notice to Franchisee and tendering to Franchisee a refund of its initial franchise fee. Franchisee
agrees that such refund shall be the full extent of Franchisor's liability and responsibility in the event of such cancellation, and that
upon cancellation Franchisee shall return to Franchisor all materials, manuals, information and all other items that Franchisee received
from Franchisor, including all copies thereof and notes thereon which Franchisee may have or control. Franchisee further agrees to
maintain strictly the confidentiality of all information received relating to the TPR Method and not to use in the operation of a test
preparation or similar business, any trade secrets or confidential information obtained from
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Franchisor in the course of the training program or otherwise.
2. Materials. Lend in trust to Franchisee the computer software and data and other course materials needed to conduct the franchised
business in accordance with the TPR Method which Franchisor may revise from time to time to reflect changes, additions and
improvements to suggested and required course offerings, procedures, policies, standards and specifications. Such material shall at all
times remain the property of Franchisor.
Franchisee agrees to follow the procedures and adhere to the policies set forth in any operating manuals or bulletin, and to maintain
their confidentiality. Upon expiration or termination of this Agreement, or upon reasonable request of Franchisor, Franchisee shall
return such materials to Franchisor.
3. Provide assistance in locating, selecting and equipping the specific business premises within the Franchisee's geographical area
suitable for conducting the franchised business activities.
B. Continuing Undertakings. Franchisor shall provide the following continuing services for the benefit of Franchisee:
1. Method Improvements and Program Additions.
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a. Make available to Franchisee from time to time all improvements and additions to the TPR Method that are circulated generally to
all other franchisees, and, except as otherwise provided hereunder, to Franchisor-owned TPR test preparation businesses. Franchisor
shall exercise due diligence to keep materials current.
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b. New, additional, or improved course programs developed by Franchisor which are designed to prepare students for college or
graduate school admissions tests will be offered exclusively for marketing by Franchisees. After any such program has been tested by
Franchisor for a period of at least one year, Franchisee shall be required to accept and put into use such program in the franchised
business. They may be subject to a fee or charge based only on the Franchisor's costs for providing Franchisee's personnel with
training necessary to incorporate and implement such programs in Franchisee's business. Franchisee shall not be required to accept
more than two (2) new programs in any calendar year.
c. Any new course developed by Franchisor other than one provided for in subparagraph b. above will be offered to Franchisee on a
first option basis before being offered to any other party. Until any such program has been tested by Franchisor for a period of at least
one year, and Franchisee has been extended a written option notice by Franchisor, Franchisee shall have the first option right to
exclusively market each program within the geographical area described in Paragraph I.A.1. of this Agreement. The first option right
herein provided shall be exercised by Franchisee by giving Franchisor written notice of its election to do so within thirty (30) days
following Franchisee's receipt of a statement of Franchisor describing the program, reciting Franchisee's right to obtain exclusive
marketing rights in said geographical area, and setting forth the fee or charge payable by Franchisee to secure such right and program.
The fee or charge payable shall be
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based on Franchisee's pro rata share of Franchisor's costs to develop the course and program. As used herein, the term "pro rata share"
means the proportionate value of the formula amount of Franchisee's initial franchise fee calculated on the basis of factors existing as
of a date six (6) months prior to the date the option offer is made ("the adjusted initial fee value") in relation to the total adjusted initial
franchise fee value on such date of all TPR franchises and of all Franchisor-owned TPR units assuming they were franchises.
In the event Franchisee does not exercise the first option rights herein provided, Franchisor shall have the right to grant said marketing
rights to any other party or parties within the aforesaid geographical area, but only under a name or mark other than THE
PRINCETON REVIEW or any other proprietary name or mark hereunder licensed to Franchisee.
(Except as otherwise agreed, Franchisor unilaterally represents that (i) it will not market any computer or videotape programs
purporting to prepare students for a college or graduate school admissions test, but nothing herein shall be understood to preclude
Franchisor from publishing and/or marketing any book designed to prepare students for the school admissions process including any
admissions or qualifications test; and, (ii) it will not engage in any business under any other name similar to or competitive with the
business franchised hereunder.)
As used herein, a program "tested by Franchisor" must have included, but is not limited to, conducting the new program among no less
than 100 participants, checking the results, and making the results available to Franchisee.
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2. Software Warranty. If Franchisee notifies Franchisor of the existence of an error in computer software that has been provided to
Franchisee by Franchisor which materially impairs Franchisee's ability to properly conduct its franchised TPR business, Franchisor
warrants to correct or rectify such error within five (5) days following its receipt of written notice from Franchisee ("the grace
period"). If any such computer software error is not corrected or rectified by Franchisor within the said grace period, Franchisor will
waive, or refund, payment of royalty-service fees otherwise payable in accordance with the following formula: 1/60 x D x R, where D
represents the number of days elapsing between the expiration of the grace period and the day on which the error was corrected, and R
represents the royalty-service fees payable by Franchisee to Franchisor for the specific test in which the error occurred for the year in
which the error occurred.
3. Assistance. Provide telephone counseling to Franchisee at reasonable times and frequency with respect to the operation and
management of the business, and make available to it the benefit of Franchisor's information, advice, expertise and know-how.
4. Advertising. Make available to Franchisee from time to time, national and/or regional TPR advertising programs as they are
developed with advertising funds collected pursuant to Paragraph V. hereof and generally circulated. In the months of January and July
of each year during the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising
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funds collected and specifically how such funds were expended during the preceding six-month period.
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5. Continuing Training. Provide, at the option of Franchisor, mandatory training program/meetings. Franchisee agrees to attend (or to
cause its designated employees to attend) one mandatory training/program meeting per year, but failure to attend because of illness or
other physical incapacity shall not be a default hereunder. All mandatory training/program meetings will be held at a location within
the continental United States designated by Franchisor. Franchisor will not charge Franchisee a fee for mandatory meetings, but all
travel, living, and personal expenses incurred by Franchisee in connection with meeting attendance will be the sole obligation of
Franchisee.
VII. OBLIGATIONS OF FRANCHISEE
A. Promotion of The Princeton Review Method and Business.
1. Franchisee agrees during the term of this Agreement to promote at all times the sale of test preparation services available from
Franchisee pursuant to the TPR Method, using its best efforts to develop and enlarge Franchisee's market for such services. Franchisee
agrees to accept new, additional, and improved course programs developed by Franchisor and designed to prepare students for college
or graduate school admissions tests, and to pay to Franchisor a new program training fee based on Franchisor's costs for providing
such training for each such program to personnel of the Franchisee as is reasonably necessary to incorporate and implement such
programs in Franchisee's business, provided, that Franchisor has tested such program (in the manner required under Paragraph VI.B.1.
hereof) for a period of at least one (1) year.
New courses or programs developed by Franchisor for inclusion in the TPR Method other than those designed to prepare students for
college or graduate school
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admissions tests will be offered to Franchisee on a first option basis as provided by Paragraph VI.B. of this Agreement.
2. Franchisee hereby agrees to operate its franchised business in accordance with methods and procedures prescribed by Franchisor in
its operating manual or other bulletins, as revised from time to time, and to equip the franchised business in accordance with the
standards of the Franchisor, including, specifically, those items listed on Appendix A of this Agreement.
B. Management Responsibility and Business Conduct.
1. Franchisee agrees that at all times during the term of this Agreement Lloyd Eric Cotsen, or a successor, shall devote substantial time
and effort in the active management and operation of its test preparation business, shall be responsible for the management and
operation thereof, and shall act on behalf of Franchisee in all dealings with Franchisor. The person herein identified may be changed
upon giving written notice to Franchisor.
Franchisee understands, hereby acknowledges, and agrees that the kinds and extent of business results achieved, and the financial
returns and profits, if any, expected or realized from the investment in, and the operation of, the business franchised hereunder depend
principally and substantially on Franchisee's direct, personal and active continuous participation in the management, administration
and operation of such business.
2. Franchisee will at all times give efficient service to the public meeting the performance standards set forth in Appendix B of this
Agreement. Franchisor and Franchisee shall adhere to high standards of business ethics, integrity and fair dealing, and
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do nothing which would tend to discredit or in any manner damage the reputation and good will of Franchisor, the TPR Method,
Franchisee or other Franchisees of Franchisor. Franchisee will in a reasonably timely manner provide Franchisor with reports and
information concerning the identities, test scores and other results of enrolled students in the form and manner requested.
3. Franchisee shall make all payments and reports provided herein, and pay all debts owed to Franchisor, when they shall become due.
4. Franchisee shall conduct its business in accordance with all applicable laws and regulations, and at its own expense shall obtain and
maintain all permits, certificates, and licenses required to engage in the test preparation business franchised hereunder.
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5. Franchisee warrants and covenants that during the term of this Agreement it will not engage in any capacity (a) in any educational
business activity with high school or college students except as provided herein, or (b) in any test preparation service business with any
person, without the advance, written consent of Franchisor.
C. Mandatory Attendance at Training/Program meetings. Franchisor shall have the right at its option to require Franchisee or its duly
authorized management representative to attend one training/program meeting per year, and Franchisee agrees it or its representative
will attend one such meeting at Franchisee's sole expense for all travel, living and incidental costs. Failure to attend because of illness
or other physical incapacity shall not be a default hereunder. The Franchisor shall charge Franchisee no fee for mandatory meetings.
D. Insurance. Franchisee alone shall be responsible for all loss or damage arising out of or relating to the operation of Franchisee's
business or arising out of the acts or omissions of
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Franchisee or any of its agents, employees, servants, or contractors in connection with services offered or rendered by Franchisee, and
for all claims for damage to property of for injury or death of any persons directly or indirectly resulting therefrom, and Franchisee
agrees to indemnify and hold Franchisor harmless against and from any and all such claims, loss, and damage, including costs and
reasonable attorneys fees, except for acts of the Franchisor or those committed at its direction. Franchisee at its own cost and expense
shall obtain and at all times during the term of this agreement maintain in full force and effect automobile and public liability insurance
with limits of liability for death and bodily injury of not less than $1,000,000.00 for each person injured and $50,000.00 for property
damages on each occurrence or a combined single limit of $1,000,000.00.
Said policies of insurance shall be on forms, upon terms and with insurers reasonably satisfactory to Franchisor.
Said policies of insurance shall expressly insure and protect both Franchisee and Franchisor. Franchisee shall furnish to Franchisor a
certified copy of certificate with respect to each such policy which provides that such policy shall not be canceled or modified except
upon 30 days prior written notice to Franchisor. If Franchisee fails to obtain or maintain in force any insurance as provided herein or to
furnish the certificates required hereunder, Franchisor may, in addition to other remedies it may have, maintain or obtain such
insurance and/or certificates, and Franchisee shall promptly reimburse Franchisor for all premiums and other costs incurred thereby.
VIII. PROPRIETARY MARKS
A. Validity and Use. The franchise granted hereunder and the Princeton Review Method are operated in connection with and through
the use of various trademarks, trade names,
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and service marks along with certain related words, slogans, letters, and symbols (all of which are hereafter collectively referred to as
"the Propriety Marks"). The Proprietary Marks include, but are not limited to, those registered, or which may become registered, in the
United States Patent and Trademark Office.
The following comprise the proprietary names and marks licensed and protected hereunder: THE PRINCETON REVIEW; TPR.
Franchisor reserves the right to alter, change or amend the Proprietary Marks referred to herein and to add proprietary names and
marks to those licensed hereunder. Franchisor does not warrant the availability or validity of said marks. In the event that the right to
use any name or proprietary mark granted to franchisee in connection herewith is threatened by anyone else, or if a registration
application for any such name or mark is denied or invalidated, Franchisor at its option shall have the right to either:
a. defend against any such claim or action which threatens use of the name or mark at Franchisor's sole expense; or
b. substitute a different name or mark nationally with all franchisees, in which case the substituted name or mark shall be accorded the
same treatment as provided herein; or
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c. discontinue use of the name or mark only with respect to Franchisee hereunder, in which event the parties agree that this Agreement
shall be modified to provide that, and to limit the extent of liability to, a reduction of the royalty rate payable hereunder by Franchisee
under Paragraph III. A. from eight percent (8%) to four percent (4%), and the elimination of Franchisee's obligation to pay any
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advertising fee to Franchisor whatsoever.
As between the parties hereto, Franchisee acknowledges the validity of the Proprietary Marks and acknowledges that they are the
property of Franchisor. Franchisee hereby agrees to use the Proprietary Marks only for so long as the franchise and license granted
herein remain in force, and only in connection and in accord with the Princeton Review Method, and in compliance with this
Agreement and guidelines and bulletins issued by Franchisor relating to the proper use of the Proprietary Marks.
Franchisee shall not, either during or after the term of this Agreement, do anything, or aid or assist any other party to do anything,
which would infringe upon, harm, dilute or contest the rights of Franchisor in any of the Proprietary Marks or in any other mark or
name which incorporates the name Princeton Review. Franchisee acknowledges and agrees that all rights, benefits and goodwill that
may develop in the Proprietary Marks shall inure and accrue to the full and exclusive benefit of Franchisor.
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B. Firm Name. Franchisee shall operate, advertise, and promote the business and its services under the name The Princeton Review,
and shall designate in conjunction therewith that Franchisee is an independent franchisee. Franchisee shall not, however, use the name
The Princeton Review, or any other name containing such name, or any of the Proprietary Marks in or as part of the firm or corporate
name of Franchisee. Franchisee shall, upon request of Franchisor at any time, immediately stop the use of any such name or word in its
firm or corporate name, and
shall promptly take such steps as may be necessary or appropriate in the judgment of Franchisor to remove any such name or word
from Franchisee's firm or corporate name.
C. Unauthorized Use. Franchisee shall promptly report to Franchisor any unauthorized use of the Proprietary Marks that come to its
attention in any manner whatever. Upon request of Franchisor, Franchisee agrees to cooperate with Franchisor in preventing
unauthorized use of the Proprietary Marks, or any confusingly similar mark, at the sole expense of Franchisor.
IX. CONFIDENTIALITY OF THE PRINCETON REVIEW METHOD
Franchisee hereby acknowledges that only Franchisor can license rights in and to the Princeton Review Method and any parts thereof,
including all material and information divulged to Franchisee relating to the Method. Franchisee further acknowledges that all parts of
the Method whether or not trade secrets, and which are not generally known to the public, constitute confidential business information
of Franchisor which are revealed to Franchisee in trust and in confidence, solely for the purpose of enabling Franchisee to establish
and operate the test preparation business franchised by this Agreement. Such confidential information includes, but is not limited to,
educational software programs, training aids, data, and written materials; business
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procedures and processes; supplies, equipment and material lists; instructor lists; customer information; training and operations
manuals; teaching techniques; promotion and marketing aids; business forms and accounting procedures; and informational bulletins.
Franchisee agrees that during and after the term of this Agreement, it will not reveal any of such information to any other person or
firm, except to employees of Franchisee, and then only in trust and in confidence, and only to the extent such knowledge is necessary
to perform the duties of their employment, and Franchisee agrees, further, that it will not use any of such confidential business
information in any manner in connection with any business or venture in which it has or may acquire any interest, direct or indirect, in
any capacity whatever, other than in connection with the operation of the business franchised hereunder. Nothing herein shall be
understood as prohibiting Franchisee from selling any of its mailing lists to any other party.
X. IMPROVEMENTS TO THE METHOD
In order to assure maximum uniformity of quality, performance and service, nationally in all courses conducted by all franchisees.
Franchisee agrees to follow the procedures prescribed by the Princeton Review Method. As Franchisor develops or learns of
improvements, and adopts them for the method, it will inform franchisees and authorize their use in Franchisee's business. In return
and in consideration therefore, Franchisee agrees that any idea or suggested innovation or variation, which may tend to enhance or
improve the efficiency or effectiveness of test preparation services compatible with the Princeton Review Method, that Franchisee
discovers or otherwise becomes aware of during the term of this Agreement shall be submitted to Franchisor for its evaluation for
adoption and use and Franchisee agrees that all proprietary rights to such ideas, innovations or variations created or acquired by
Franchisee or any of its employees may be
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adopted and used by Franchisor and may be made available to other franchisees.
XI. RIGHTS AND LIMITATIONS ON ASSIGNABILITY BY FRANCHISEE
A. Assignment of Franchise Rights. The franchise rights granted hereunder are personal in nature to the Franchisee who is a party to
this Agreement. Franchisee hereby agrees not to sell, assign, transfer, convey, or encumber this Agreement or any right or interest
therein or thereunder, or to suffer or permit any such sale, assignment, transfer, conveyance or encumbrance to occur by operation of
law, without the prior written consent of Franchisor. Such consent shall not be unreasonably withheld, may not require that there be
any change in the terms of this Agreement or any extension thereof, and shall be determined on the bases of the personal, business, and
financial qualifications of the proposed transferee, and its acceptance of the obligations and terms of this Agreement. Franchisor will
not charge a transfer fee.
B. Franchisor's First Option to Acquire. In the event of any proposal to sell, assign, or transfer any right or interest in the business for
which Franchisee is hereunder franchised to use the Princeton Review Method (except for Franchisor-approved advertising for offers
to purchase), there shall first be submitted to Franchisor a copy of any bona fide written offer made or received, or if none, a statement
in writing of all the terms of the proposed purchaser, assignee or transferee. Thereafter, Franchisor shall have the irrevocable first right
and option to purchase or acquire any such right or interest on the same terms as stated in the offer or statement, and Franchisor may
exercise such right and option by notifying Franchisee in writing of its election to do so within thirty (30) days after its receipt of the
written offer or statement.
If Franchisor does not so notify Franchisee within the thirty (30) day period, then the proposed sale, assignment or transfer of
Franchisee's business may be made to a party other than
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Franchisor, subject to Franchisor's consent as provided in Subparagraph XI .A., but only on the terms set forth in the written offer or
statement and only to the party therein identified. Such sale, assignment or transfer shall constitute a cancellation and termination of all
interest and rights of Franchisee under this Agreement whereupon all obligations of Franchisee under Paragraph XIV. of this
Agreement shall be effective.
If the proposed sale, assignment or transfer is not made within one-hundred-twenty (120) days after receipt by Franchisor of the
written offer or statement, it shall be deemed withdrawn or rejected and the provisions of this Paragraph XI.B. shall renew and again
be fully applicable.
C. Death or Disability of Franchisee. In the event of the death or disability of an individual Franchisee, Franchisor will consent to an
assignment and transfer of this Agreement on an interim basis to the personal representative of Franchisee, and subsequently to an heir,
legatee or devisee of Franchisee, provided that each of the following conditions is fulfilled with respect to each such assignment and
transfer:
1. It shall be demonstrated to the satisfaction of Franchisor that such personal representative or successor is qualified, on the bases of
character, business experience and capability, credit standing, health, and financial resources, necessary to successfully operate
Franchisee's business in accordance with the terms of this Agreement.
2. The person, if any, to be substituted in Paragraph VII .B. of this Agreement shall have been approved by Franchisor and shall have
successfully completed the training courses then in effect for franchisees or shall have completed such courses at the next earliest time
offered by Franchisor.
3. There shall not be an existing default in any of the obligations of Franchisee
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which would constitute cause for termination pursuant to Paragraph XIII. hereunder, and all amounts owed to Franchisor as of the date
of death or disability shall be paid in full.
4. Such personal representative or successor shall have submitted to Franchisor satisfactory evidence that he has become entitled to
succeed to the rights of Franchisee hereunder, agrees to assume all obligations of Franchisee hereunder and agrees to be bound by all
the terms and provisions of this Agreement to the same extent and manner as Franchisee, and executes such personal undertakings as
Franchisor shall reasonably require.
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Any consent of Franchisor hereunder shall not constitute consent to any subsequent assignment or transfer.
XII. ASSIGNABILITY BY FRANCHISOR
This Agreement may be assigned by Franchisor or by any successor, to any party or corporation which may succeed to the business of
Franchisor or of such successor by sale of assets, merger, or consolidation or otherwise, and may also be assigned by Franchisor or by
such successor to the shareholders thereof in connection with any distribution of the assets of said party or corporation, provided, the
assignee assumes the responsibilities and obligations of Franchisor under this Agreement.
XIII. TERMINATION
Termination by Franchisor for cause. Franchisee agrees that Franchisor may terminate this Agreement prior to the expiration of its
term if any of the following conditions occur by giving Franchisee written notice of termination, provided, that wherever a reason for
termination is prohibited by, or a period of notice or a time allowed to cure a default as stated in this Paragraph
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XIII. is different from, applicable law in effect as of the effective date of this Agreement, such reason may be deemed deleted, and
such period or time shall be deemed ended, to conform with such applicable law:
A. Franchisee fails to make any payment of money owed to Franchisor when due, or fails to submit to Franchisor when due any report
required pursuant to this Agreement, and such default is not fully cured within fifteen (15) days after Franchisor gives notice of such
default to Franchisee;
B. Franchisee is declared or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a receiver is
appointed for its assets or business, or a proceeding is commenced by or against Franchisee for appointment of a receiver or for a
reorganization or similar arrangement under state law or any provisions of Federal bankruptcy law, and, if involuntary, such
proceeding is not dismissed within sixty (60) days of the filing thereof;
C. Franchisee assigns, sells, encumbers, or transfers this Agreement without Franchisor's prior written consent;
D. Subject to Paragraph XI.C. of this Agreement, Franchisee becomes unable because of its condition of health to perform the
obligations required or contemplated hereunder for a period of more than thirty (30) days.
E. Franchisee conducts no course authorized by the TPR method during any consecutive six (6) month period.
F. Franchisee jeopardizes the goodwill of Franchisor's Proprietary Marks, the Franchisee's business, the Princeton Review Method,
including failure to meet minimum standards of performance provided by this Agreement, or the reputation of Franchisor, and fails to
cure to
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the extent possible such default within thirty (30) days following notice to Franchisee by Franchisor;
G. Franchisee fails to maintain the confidentiality of the Princeton Review Method as provided in Paragraph IX. of this Agreement;
H. Franchisee defaults in the performance of the obligations, assumed under Paragraph VII. of this Agreement and fails to cure any
such default within thirty (30) days following notice to Franchisee by Franchisor;
I. Franchisee fails to maintain an independent contractor relationship with Franchisor pursuant to Paragraph XVI.F., except if caused
by Franchisor;
J. Franchisee is convicted of a felony and has exhausted all available appeals;
K. Franchisee fails to perform any material obligation assumed by Franchisee under this Agreement, other than those specifically
referred to in this Paragraph, and such default is not satisfactorily cured within thirty (30) days after Franchisor gives written notice of
such default to Franchisee, or if Franchisee repeatedly defaults or breaches obligations assumed under this Agreement;
L. Franchisee fails to conduct its business in accordance with all applicable laws and regulations. This shall not prevent Franchisee
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from contesting in good faith the validity or applicability of any purported legal obligation to the extent and in the manner permitted by
law.
Notwithstanding the foregoing, in the event that Franchisee is given Notice of Termination by Franchisor for any cause or causes
specified in Subparagraphs XIII. C., D., E., F., G., H., I., J., K., or L. of this Agreement, Franchisee shall, upon its request, be given
the opportunity for a period not to exceed one hundred twenty (120) days following Franchisee's receipt of the Notice
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of Termination, to present in writing to Franchisor the terms of, and the identity of parties to, a bona fide offer to purchase Franchisee's
The Princeton Review business, and such offer shall be subject to, and processed in accordance with, the provisions of Subparagraphs
XI.A. and XI.B. of this Agreement, provided, that during the said one hundred twenty (120) day period Franchisee does nothing to
discredit Franchisor or the franchised business, and, provided, further, that if the Notice of Termination is based on a cause specified
in Subparagraph XIII.J. of this Agreement, Franchisor shall have the option of taking over exclusive management and operating
control of the franchised business during all or any part of the period following Notice of Termination.
If a proposed sale hereunder is not completed within sixty (60) days following Franchisor's written consent to the proposed sale,
termination shall immediately thereafter be effective, and the provisions of Paragraph XIV. of this Agreement shall thereupon apply.
XIV. OBLIGATIONS UPON TERMINATION
Upon termination, expiration, or cancellation of this Agreement for any reason or in any manner, Franchisee shall cease to be an
authorized The Princeton Review franchisee, and Franchisee shall:
A. Immediately discontinue the use of the Princeton Review Method in its entirety, all Proprietary Marks, and any names, masks or
signs which may be confusingly similar thereto, and all other materials which may indicate that Franchisee is or was an authorized The
Princeton Review franchisee or otherwise associated with Franchisor. Franchisee further agrees to return to Franchisor all materials
containing any reference to Franchisor, and to cancel any pending advertising and discontinue future advertising which refers to or
connotes any relationship between Franchisee and Franchisor.
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B. Promptly pay to Franchisor all sums owing from Franchisee to Franchisor. Termination of this Agreement under any circumstances
shall not relieve Franchisee of any debt, obligation, or liability to Franchisor which may have accrued hereunder, and all obligations
and agreements of Franchisee which expressly or by implication are to be performed after the termination of this Agreement shall
survive such termination.
C. Offer, for a period of acceptance of not less than fifteen (15) days, to sell to Franchisor at its then market value, all or any portion of
equipment and supplies suitable for use is connection with the Princeton Review Method, prior to offering the same to any other party.
D. Assist Franchisor in every way possible to bring about an immediately effective, complete and orderly transfer of Franchisee's test
preparation business and students to Franchisor or to such persons as Franchisor may designate. Franchisee specifically agrees
hereunder to cooperate fully with Franchisor to assign immediately to Franchisor any and all business telephone numbers used by
Franchisee in the conduct or promotion of the franchised business, and hereby irrevocably appoints and authorizes Franchisor to act as
Franchisee's attorney-in-fact and agent to effect such assignment.
E. Maintain the confidentiality and not disclose to any person any of the confidential business or trade secrets furnished to Franchisee
by Franchisor under this Agreement or in connection with the operation of the business licensed hereunder.
F. Refrain from engaging in, or becoming in any manner financially interested in, the educational testing or any related business
similar to the franchised business for a period of one year following cessation of this Agreement within the geographic territory
described in Section I.A.1 hereunder and within twenty-five (25) miles outside the boundary lines of such territory.
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XV. INDEMNIFICATION
A. By Franchisor. In the event Franchisee is sued for damages in any suit or action based on grounds of Franchisee's infringing use of
any Proprietary Mark licensed to Franchisee by Franchisor, or of Franchisee's infringing use of materials provided to Franchisee by
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Franchisor for use in the franchised The Princeton Review business, Franchisor shall defend the suit or action and shall indemnify
Franchisee for all damages awarded, provided:
Franchisee gives Franchisor immediate notice of any suits or actions instituted or threatened against Franchisee and reasonably
cooperates in its defense, and Franchisor has the sole right to control the defense of, and the sole discretion to compromise and settle,
any such suit or action.
B. By Franchisee. In the event Franchisor is sued and found liable by final judgment for damages in any suit or action based on
grounds of Franchisee's acts or conduct not authorized by Franchisor, Franchisee shall indemnify Franchisor from all damages
awarded and reasonable attorneys' fees, provided, Franchisor gives Franchisee immediate notice of any such suit or action instituted or
threatened against Franchisor, and Franchisee has the right to participate in the defense of any such suit or action.
XVI. MISCELLANEOUS
A. Grammar. Any personal pronoun shall include the masculine, feminine and/or the neuter thereof, and the singular of any noun or
pronoun shall include the plural and plural the singular, wherever the context may require.
B. Section Headings. Section headings are for ease of reference only. They are not a part of this Agreement and shall not limit or
define the meaning of any provision.
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C. Non-waiver. No failure by Licensor to take action on account of any default by Franchisee, whether in a single instance or
repeatedly, shall constitute a waiver of any such default or of the performance required of Franchisee.
D. Invalidity. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its
application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed
modified to the extent necessary to render such provision valid or inapplicable, or to be eliminated from this Agreement, if required,
and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event
that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular
jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling.
E. Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the
subject matter hereof, and it may be modified only by a written document executed by the party sought to be bound or obligated. The
parties acknowledge hereby that there are no representations, understandings, agreements, terms or conditions not contained or
referred to in this Agreement, and that this Agreement supersedes any prior written or oral agreements, representations or inducements.
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F. Relationship of the Parties. This Agreement does cot create the relationship of principal and agent, joint ventures, or partners
between Franchisor and Franchisee, and in no circumstances shall Franchisee be considered an agent of Franchisor. Franchisee agrees
that it will do nothing to give the impression that it is an agent of Franchisor or to attempt to create any obligation on behalf of or in the
name of Franchisor.
G. Interpretation of the Agreement. This Agreement shall be interpreted under the laws of the State of New York except to the extent
that the law of the State in which the Franchisee's business is located requires that it be interpreted under the laws of such state.
H. Counterparts. This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed
a duplicate original hereof.
I. Notices. Any notice required or permitted under this Agreement shall be in writing and either delivered in person or mailed, return
receipt requested, postage fully prepaid and addressed as follows:
1. If to Franchisee, either to the address of Franchisee's business as set forth heretofore or to Franchisee's residence address; and.
2. If to Franchisor, the address of its principal offices as heretofore set forth. Addresses for notices may be changed at any time upon
written notice thereof.
J. Unless otherwise agreed, this agreement shall become effective on the date upon which it is executed by all parties hereto.
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In witness whereof, Franchisee and Franchisor have executed this Agreement on the date or dates here below written.
Witness: Franchisee
/s/ [witness] /s/ Lloyd Eric Cotsen (SEAL)
---------------------------- -----------------------------
Signature
Lloyd Eric Cotsen
------------------------------
Full Name (Printed)
Date: July 1, 1986
------------
Address and phone number of
Franchisee's residence:
1880 Veteran Avenue Suite 310
Los Angeles, California 90025
(213) 479-8936
Attest: PRINCETON REVIEW MANAGEMENT
CORP.
(Franchisor)
/s/ Leonard V. Galla By: /s/ John S. Katzman
---------------------------- ----------------------------
Title: Chairman
-------------------------
Date: July 1, 1986
----------------------
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
Appendix A (under Paragraph VII. A.)
EQUIPMENT NECESSARY TO CONDUCT THE FRANCHISED BUSINESS:
* An IBM Personal Computer or equivalent, with 256K memory, a 10mg hard disk, serial and parallel ports.
* A Hayes compatible 1200 baud modem (internal or external)
* Two printers: one letter quality and the other dot matrix
* An optical mark reader made by Scantron Corp-option 1 (optional)
* A copying machine
* A telephone answering machine or answering service
The equipment may be purchased from any dealer of such equipment. It may be new or used, must perform suitably.
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/s/ Lloyd Eric Cotsen
-----------------------------
Franchisee
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
APPENDIX B (Under Paragraph VII .B.2. )
Standards of Performance:
The Franchise represents The Princeton Review in its community; a serious breach would irreparably damage the reputation of the
company and all franchisees in the system. Any legal judgment that a franchisee has helped a student cheat, or any conviction of a
felony, is cause for termination under Paragraphs XIII .F. and J. of the Franchise Agreement.
The results of students who take the program are also very important, and will be evaluated in the interest of the success of all
involved. The method by which the performance of franchisees will be judged is as follows.
Results of testing can be measured objectively: the improvement of each student is the difference between his final test score and his
most recent prior test score. It the student has not previously taken a particular test or preliminary test before enrolling in the course, a
comparison will be made with the student's first diagnostic test score.
To be satisfactory, a franchisee's students' results for each test offered must approximate or exceed nationwide results for that
particular test. A franchisee's performance will be deemed unsatisfactory if, for three successive terms, his students' testing results for a
specific test are more than twenty-five percent (25%) below the average results of all students of all The Princeton Review site
locations for that test for that term.
If a franchise fails to meet the test score standard of satisfactory performance, the franchisee will be liable to Franchisor for a
consultation charge not to exceed five percent (5%) of gross receipts derived from Franchisee's substandard test business for the year
in which performance was below standard. In return, the Franchisor, for a reasonable charge not to exceed
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said five percent (5%) will send one or more representatives to the franchisee's sub-standard location for the purpose of monitoring the
operation, diagnosing the causes of inadequate results, and making recommendations for improvements. In the event the Franchisee
follows the Franchisor's recommendations for improving performance, and the location's results are not in fact improved, the full
amount of the consultation charge will be refunded.
/s/ Lloyd Eric Cotsen
------------------------------
Franchisee
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ADDENDUM TO FRANCHISE AGREEMENT
THIS ADDENDUM to the Franchise Agreement dated June 1, 1986 between The Princeton Review Management Corp. (the
"Franchisor") and Lloyd Eric Cotsen (the "Franchisee") is made by the parties thereto concurrently with the execution of the said
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Franchise Agreement and is consideration thereof. The parties intend this Addendum to add to, modify and interpret the said Franchise
Agreement, and to replace and take precedence over any term, provision or condition thereof which may be contrary to, inconsistent
with, or different from any provision of this Addendum.
NOW THEREFORE, the parties agree as follows:
1. The initial term of the Franchise Agreement as provided under Paragraph I.B. thereof shall be for a period of twenty (20) years.
Subsequent terms as provided herein shall be for ten (10) years each.
2. The Franchisor hereby approves the Franchisee as a The Princeton Review ("TPR") Franchisee and waives any right under
Paragraph VI.A.l. of the Franchise Agreement to cancel the Agreement for the reason therein provided.
3. The following franchised business site locations are hereby approved by the Franchisor pursuant to Paragraph I.A.1. of the
Franchise Agreement:
Westlake, Palos Verdes, Glendora, Encino, Calabassas, Beverly Hills, Clairmaont, Studio City, Santa Monica, Pasadena, Santa
Barbera, Manhattan Beach
The Franchisor may not withdraw its approval of any of the aforesaid site locations except with the written consent of the Franchisee.
4. The provisions of Paragraph VIII .B. of the Franchise Agreement notwithstanding, the Franchisor hereby authorizes and approves
the Franchisee to use and trade under the following business and/or corporate name(s) in conducting the operation of the franchised
business:
Lecomp Company, Inc.
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5. If in the future the Franchisor charges any other franchisee a lesser royalty-service fee, advertising fee, or other fee than that which
is provided under the Franchisee Agreement with the Franchisee, then, and upon such event, the said fee or fees thereafter charged to
and payable by the Franchisee shall be reduced correspondingly to equal such lesser fee or fees.
6. The initial training program provided under VI. A. 1. of the Franchise Agreement will be provided to up to two personnel of the
Franchisee at any mutually convenient time or times during the initial term of the Franchise Agreement, and the persons designated
may undertake such training either at the same time or at different times.
7. The training fees or charges for mandatory new programs payable by the Franchisee to the Franchisor for its chargeable cost under
Paragraph VI. B. 1. b. of the Franchise Agreement shall include only necessary and customary business expenses and shall not exceed
a total of $250.00 for training applicable to any one said program.
8. The Franchisor's costs under Paragraph VI. B. l. c. of the Franchise Agreement relative to optional new programs may include only
necessary and customary business expenses of the Franchisor associated with the development of the program and shall exclude any
personal expenses of the Franchisor.
9. For so long as the Franchisor, The Princeton Review, Inc., or any officer, director, or controlling stockholder of either firm is
subject to currently pending litigation with Educational Testing Service, Inc., the Franchisee shall not be bound under Paragraph VII.
B. 2. of the Franchise Agreement to provide the Franchisor with the identities of enrolled students. All other information and data
described therein shall be provided, including reports of test scores, but the Franchisee is not required to provide originals or copies of
original actual test score report sheets of tests given or administered to students by any independent third party.
10. The Franchisee shall not be required to submit to the Franchisor any advertising of offers to sell, or for offers to purchase, the
Franchisee's franchised TPR business.
11. Any compromise and/or settlement proposed to be made by the Franchisor under Paragraph XV.A. of the Franchise Agreement
shall be reasonable in relation to the business interests of the Franchisee. Before entering into any such final compromise or settlement,
the Franchisor shall give the Franchisee reasonable notice of the proposed settlement or compromise which need not be more than ten
(10) days. If within the aforesaid ten (10) day period the
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Franchisee gives to the Franchisor written notice stating specific grounds as to how the proposal would unreasonably injure the
Franchisee's business interests and rights and objecting to the proposal, and the parties are unable themselves to resolve differences
between them within ten (10) days following receipt of notice by the Franchisor, the parties will submit the issues to binding
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arbitration in the City of New York on an expedited basis over a period not to exceed thirty (30) days without mutual agreement
otherwise. If the parties are unable to agree to a single arbitrator, each party will name one arbitrator and they, in turn, will name a
third. In the event the parties are unable to agree upon procedures, such will be conducted in accordance with the then current rules of
the American Arbitration Association. The decision of the arbitrator(s) shall be binding upon the parties and final, and shall be
enforceable by any court of competent jurisdiction.
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12. The geographical area described in Paragraph I.A.1 of this Franchise Agreement includes within it the counties listed below. At
any time or times during the term of this Agreement or any extension thereof, Franchisee or its assignee shall have the right upon thirty
(30) days' notice in writing to the Franchisor to delete and separate out from this Agreement (the "primary agreement") any of the
aforesaid counties (in its entirety) from the rest of the geographical area, and to obtain from the Franchisor a separate and independent
franchise agreement for any one or more of said counties. The primary agreement shall thereupon be amended to delete the separated
county from this agreement. The initial franchise fee, for purposes of article II only shall remain the same, but for all other purposes
the initial franchise fee shall be deemed to have been reduced by the amount listed below with regard to the deleted county. The
franchise agreement and addendums to be issued for the new county shall be issued upon the same terms and provisions of the primary
agreement, except that the geographical area described in Paragraph I. A. 1 shall be the separated county. No initial franchise fee shall
be payable, but for all other purposes of the Agreement the initial franchise fee shall be deemed to have been set at the respective
amounts set forth below:
Los Angeles County
$183,119
San Bernardino County $15,283
Santa Barbara County $8,835
Ventura County $18,416
Any sale, assignment, transfer, conveyance, or encumbrance of any separate and independent franchise agreement for any separated
county to any party other than the Franchisee under the primary agreement shall be subject to and governed by all of the terms and
provisions of Paragraph XI. of the primary and/or separate and independent franchise agreement, including, without limitation, the
requisite prior written consent of the Franchisor and the Franchisor's first option to acquire.
13. If the Office of the Attorney General of the State of New York requires any change to be made to the Franchise Agreement as a
condition to the registration of the TPR franchise in the State of New York, Franchisee shall have the option to have this Agreement
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modified to conform to any such change or changes. Franchisee shall exercise the option granted hereunder by giving Franchisor
written notice thereof within thirty (30) days after receiving notice from Franchisor of the change or changes.
IN WITNESS WHEREOF the parties hereto have executed this Addendum Agreement on this 13th day of June, 1986, intending
thereby to be legally bound.
WITNESS/ATTEST FRANCHISEE
/s/ Dan Stenlight /s/ Lloyd Eric Cotsen
-------------------------
------------------------------
THE PRINCETON REVIEW
MANAGEMENT CORP. (SEAL)
/s/ Leonard V. Galla By: /s/ John Katzman
-------------------------
---------------------------
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CONSENT TO ASSIGNMENT OF FRANCHISE AGREEMENT
AGREEMENT made this 1st day of July, 1986, by and between Lloyd Eric Cotsen (hereinafter referred us as the Franchisee), and
Princeton Review Management Corp. (hereinafter referred to as the Franchisor), WITNESSETH:
WHEREAS, the Franchisee, a natural person, and the Franchisor have entered into a The Princeton Review Franchise Agreement
dated July 1, 1986, and
WHEREAS, said Franchise Agreement provides that the Franchisee may not assign any right or interest in the said Agreement or in
any separate and independent franchise agreement granted under the terms of the Franchise Agreement and on Addendum Agreement
thereto, and
WHEREAS, the Franchisee desires to obtain in advance the Franchisor's consent to assign his rights and interests in the aforesaid
Franchise Agreement and in independent, separate The Princeton Review franchise agreements which may be acquired in the future to
a corporation or corporations in which the Franchisee owns and exercises a controlling stock interest, and
WHEREAS, the Franchisor is willing to give its consent to such aforesaid assignment or assignment;
NOW THEREFORE, it is hereby agreed as follows:
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In consideration of the foregoing and of the following mutual promises and undertakings:
14. The Franchisor agrees and consents to the assignment of any The Princeton Review Franchise Agreement between the Franchisor
and the Franchisee, including the aforesaid Franchise Agreement and any separate and independent franchise agreement growing out
of the provisions of the Addendum thereto, to either an existing or future corporation in which the Franchisee has and maintains a
controlling stock interest, provided, the Franchisee gives the Franchisor prior notice of assignment along with a copy of a written
agreement effecting the assignment in which the assignee agrees to assume all obligations of the assignor under the franchise
agreement, and provides the Franchisor with an accurate and complete listing of all stockholders of the assignee corporation setting
forth their respective stock interests. Upon receipt of the foregoing notice, copy of written assignment agreement and listing of
stockholders, the Franchisee shall be relieved as of the effective date of the assignment of personal liability under the assigned
franchise agreement except for the obligations set forth in paragraph 2 of this "Consent to Assignment."
2. The Franchisee promises and agrees:
a. To provide the Franchisor with the information provided in paragraph 1 of this Agreement and to keep such information current;
b. To remain personally liable following an assignment subject to this Agreement for the obligations of any assignee corporation for
payment of royalty-service fees and advertising fees currently due and payable at any time during the term of this Agreement to the
Franchisor, and for all currently due and payable fees or charges for materials, training, inventory, software or equipment provided to
the assignee corporation by the Franchisor; and
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c. To remain personally obligated to comply with all restrictive covenants provided under said franchise agreements, including use of
the Franchisor's business information, methods and names (under paragraph I.A.2. & 3. of the Franchise Agreement); use of the
proprietary marks (under paragraph VIII. of the Franchise Agreement); maintenance of confidentiality (under paragraph IX. of the
Franchise Agreement); engaging in conflicting and competing business activity during the term of the franchise (under paragraph VII.
B. 5. of the Franchise Agreement) and after the term of the franchise (under paragraph XIV.F. of the Franchise Agreement); and
maintaining post-term confidentially (under paragraph XIV.E. of the Franchise Agreement).
In Witness Whereof, the parties hereto have executed this Agreement the day and year first above written.
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Franchisee
/s/ Dan Stenlight /s/ Lloyd Eric Cotsen
-----------------------
-------------------------------
Witness
The Princeton Review
Management
Corp. Franchisor
By: /s/ John Katzman
----------------------------
1
Exhibit 10.40
THE PRINCETON REVIEW FRANCHISE AGREEMENT
AGREEMENT made in the City of New York, State of New York, by and between Princeton Review Management Corp., a Delaware
Corporation (hereinafter referred to as "Franchisor"), and Robert Case, Richard McDugald, Kevin Campbell, whose address is 6432
Ella Lee #1, Houston, Texas 77087 (hereinafter referred to as "Franchisee").
WITNESSETH:
RECITALS
Franchisor has developed and acquired a comprehensive method known as The Princeton Review ("TPR") Method for conducting,
operating, and marketing a test preparation business which prepares students to take college and graduate school admission tests and
other courses ("the business"). The TPR Method, consisting, in part, of confidential and proprietary educational materials, teaching
aids, techniques, systems, and formats was developed through considerable expenditures of time, effort and money, and is identified by
and with certain proprietary names and marks owned by Franchisor.
2
Franchisor is in the business of licensing and franchising others, who desire to engage in the business, rights to use the TPR Method,
the Franchisor's proprietary names and marks associated with it, and teaching aids and materials as currently developed and as
expanded and improved in the future. In order to assist Franchisees to use the TPR Method efficiently and effectively in the operation
of the business, and to provide high quality and uniform standards of service, Franchisor provides or makes available to Franchisees
various initial and continuing training and services.
Franchisee desires to use the Princeton Review Method in the operation of a franchised The Princeton Review test preparation
business under a franchise granted from Franchisor by, and in conformance with the terms of, this Agreement, at a location or locations
within a territory hereafter described. Franchisee also desires to obtain and to derive the benefits of Franchisor's initial and continuing
services, training, guidance, expertise, know-how and information for its use in operating and managing the business.
Franchisee acknowledges as essential conditions of this Agreement and the rights granted hereunder, and as consideration exchanged
by and for the mutual benefit of all licensed users of the TPR Method and name, that Franchisee adhere to the uniform standards of
quality, procedure and format prescribed by the TPR Method; preserve the confidentiality of the TPR Method; and comply fully with
the obligations hereafter set forth.
In consideration of the foregoing recitals, of the mutual promises hereafter set forth, and of other good and valuable consideration,
Franchisor and Franchisee hereby agree as follows:
I. GRANT, TERRITORIAL RIGHTS, AND TERM
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A. Grant of Franchise. Franchisor hereby grants to Franchisee, and Franchisee hereby
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accepts from Franchisor a franchise and license for the term and upon the conditions and terms hereafter set forth:
1. To use the TPR Method in connection with the operation of a franchised Princeton Review test preparation business at specific,
approved site locations within the following geographical area: all counties in Texas. Franchisor shall not unreasonably withhold
approval of specific site locations proposed by Franchisee. As used herein, the term "site locations" means the place or places at which
Franchisee conducts courses available under the TPR Method. For so long as this Agreement continues in effect, Franchisor itself shall
not, nor will it franchise or license any other party or parties to, nor will it permit any officer of Franchisor to, establish and operate a
similar test preparation business under any name or mark at any location within the geographical area above described, except to the
extent provided by Subparagraph VI. B. l. c. of this Agreement.
2. To use confidential and proprietary educational materials, trade secrets and techniques, operating manuals and bulletins, and other
business methods and know-how disclosed by Franchisor, solely in connection with the operation of the business conducted at the
locations heretofore described and in accordance with the terms of this Agreement;
3. To use Franchisor's proprietary names, marks, and methods franchised and licensed hereunder only in the above described
geographical area (except with respect to media advertising or with Franchisor's advance written consent), and only in the manner
provided by this Agreement, and only for so long as this Agreement shall remain in effect and Franchisee is in compliance with its
terms;
B. Term, Commencement of Operations, and Renewal. The term of this Agreement
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and of the franchise and license granted herein shall be for a period of twenty (20) years commencing on September 15, 1986, and
ending on September 14, 1996, unless sooner terminated in accordance with the terms of this Agreement. Franchisee hereby agrees to
commence operations hereunder no later than no calendar days following the execution of this Agreement. For purposes of this
Agreement, Franchisee's fiscal year shall begin on the first day of January and end on the last day of December for so long as this
Agreement remains in effect, unless changed with the written consent of Franchisor.
Franchisee shall have the option to renew the license granted herein for successive ten (10) year terms provided all of the following
conditions have been fulfilled:
1. Franchisee gives written notice to Franchisor of Franchisee's intention to so renew no later than one hundred eighty
(180) days, nor earlier than one (1) year, prior to the expiration of this or any renewal term of this Agreement and this Agreement has
not otherwise been previously terminated; and
2. At the scheduled date of renewal, there is no pending uncured default or breach of this Agreement constituting cause for termination
under Paragraph XIII. hereof; and
3. Franchisee executes no later than one hundred twenty (120) days prior to the expiration of the term of this Agreement or any
renewal or extension hereof a renewal agreement on the terms and conditions then being offered to new licensees, except that (a) no
initial license fee shall be payable by Franchisee upon renewal; (b) periodic payments shall be of no higher percentages nor payable
more frequently than those provided by this Agreement; and (c) reporting and/or record keeping requirements shall be
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no more extensive or frequent than those provided by this Agreement; and
4. Franchisee, either in the year immediately preceding the expiration date of the renewal option hereby provided, or on an annual
basis averaged over the last three (3) years preceding the expiration date of the renewal option hereby provided, has made royalty
payments to Franchisor of no less than thirty percent (30%) of Franchisee's initial franchise fee hereunder adjusted to correspond with
changes (not to exceed 25%) in the national consumer/price index or makes a supplemental cash payment in the amount of the
difference between actual payments made and the percentage payments provided herein.
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II. INITIAL FRANCHISE FEE
In consideration of the franchise and license granted by this Agreement, Franchisee shall pay to Franchisor the sum of $150,000 as an
initial franchise fee payable in consecutive, non-interest bearing installment payments as follows: 15% upon execution of this
Agreement; 15% within each and every 180 day period following thereafter for five payments; and, a final payment of the full balance
remaining outstanding within the next succeeding 180 day period.
Each installment payment of the initial franchise fee shall be deemed fully earned by Franchisor upon payment thereof, and no
installment payment of the initial fee shall be refundable, in whole or in part, at any time under any circumstances except as provided
by Paragraph VI. A. l. of this Agreement.
If prior to the completion of Franchisee's first three (3) years of operation hereunder, Franchisee is by law required to cease conducting
the business franchised and conducted pursuant to the terms of this Agreement by reason of any unlawful act of Franchisor, Franchisee
shall, as liquidated damages therefor, be released and discharged from any obligation to make any future
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unpaid initial fee installment payment.
The initial fee is in addition to the periodic royalty-service fee payable pursuant to Paragraph III., the advertising fee payable under
Paragraph V., and any other fee or payment which Franchisee may incur or owe to Franchisor from time to time under this or any other
Agreement.
III. CONTINUING ROYALTY-SERVICE FEES
A. Amount and Payment of Periodic Fees. In further consideration of the rights and entitlements granted under this Agreement,
Franchisee agrees to pay to Franchisor monthly, within ten (10) days after the last day of each and every calendar month ("monthly
payment periods") during the term of this Agreement, a combined royalty-service fee in the amount equal to eight percent (8%) of
Franchisee's gross receipts collected during the preceding monthly payment period. For purposes of this Paragraph III.A., gross
receipts means the total revenues received by Franchisee for sale of goods or services made by or from Franchisee's franchised The
Princeton Review test preparation business or businesses, and shall include all revenues that have been received by Franchisee for
purchases of goods or services similar or of the same nature as those offered by the TPR Method made by current or former students
of Franchisee's The Princeton Review business. There shall be excluded from gross receipts taxes added to the sales price and
collected from the customer, credit card charges, and bona fide refunds.
B. Throughout the term of this Agreement, Franchisee shall pay to Franchisor a minimum annual royalty service fee calculated in
accordance with the following schedule:
1st Year of Operation -- 5% of Initial Franchise Fee
$7,500.00
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2nd Year of Operation -- 10% of Initial Franchise Fee
$15,000.00
3rd and Subsequent Years of Operation -- 15% of Initial Franchise Fee
$22,500.00
Beginning with the fourth year of this Agreement, the dollar amount of the minimum annual royalty-service fee shall be adjusted as of
the anniversary date of this Agreement to correspond to any change in the national consumer-price index for the preceding year. If at
the end of each year of this Agreement, total royalty-service fee payments made during the year total less than the aforesaid minimum
annual royalty-service fee due for such year, Franchisee shall pay Franchisor the difference within thirty (30) days following the end of
such year.
Royalty-service fee payments received by Franchisor under this Agreement shall be under no restriction whatever but shall be
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considered general funds of Franchisor for all purposes.
When, in any same calendar year, a majority of individual TPR franchises fails to attain the minimum fee, the minimum fee percentage
applicable to such year will be reduced to the percentage actually attained by a majority of franchisees.
IV. REPORTS AND RECORDS
A. Franchisee shall submit to Franchisor, at the time each monthly payment of royalty-service fee is due, an accurate and complete
statement of gross receipts (as defined in Paragraph III. A.) on forms specified, approved or provided by Franchisor and completed
according to their terms.
B. Within thirty (30) days after each quarterly period of Franchisee's fiscal year during the term of this Agreement, Franchisee shall
submit to Franchisor a statement of financial
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condition (a balance sheet) and a statement of income and expense relating to the business as of and for the period ending on such
quarterly period, on forms specified, approved, or provided by Franchisor and completed according to their terms in accordance with
generally accepted accounting practices.
C. Within sixty (60) days after the close of Franchisee's fiscal year, Franchisee shall furnish to Franchisor a year-end income and
expense statement in the form requested, and certified to by Franchisee, including an entry showing the total gross receipts for the said
previous fiscal year. If this statement shows that there has been any underpayment of royalty-service fees for such fiscal year based on
gross receipts as finally adjusted and reconciled after the closing and review of Franchisee's books and records, Franchisee shall pay to
Franchisor, at the time of submitting such statement, the amount of any such underpayment. Any overpayment shall be refunded to
Franchisee within thirty
(30) days.
Franchisor shall provide Franchisee with a computer program designed to generate the financial information required to be supplied by
Franchisee under Subparagraphs IV. B. or C. If said computer program, when used according to Franchisor's instruction or direction,
is defective and fails to generate the financial information herein required, Franchisee shall be under no obligation to provide such
information during the time such defective condition persists.
D. Franchisee shall maintain appropriate books and records in such a manner as to clearly and accurately show gross receipts as
defined herein. All such books and records, and income tax returns applicable to the test preparation business of Franchisee shall be
open at all reasonable times to inspection and verification by Franchisor or its duly authorized representatives. Franchisor shall be
entitled at any time during normal business hours to have
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Franchisee's books and records examined or audited at Franchisor's expense upon seventy-two (72) hours' notice and Franchisee shall
cooperate fully with the parties making such examination or audit on behalf of Franchisor. Franchisee shall promptly pay to Franchisor
or Franchisor shall refund to Franchisee, as the case may be, any under or overpayment or royalty-service fees revealed by the
examination or audit. If an examination or audit is performed due to Franchisee's failure to submit statements of gross receipts or to
maintain books and records as provided herein, or in the event that the gross receipts reported by Franchisee for any period of twelve
consecutive months are more than five percent (5%) below the actual gross receipts of Franchisee for such period as determined by
any such examination or audit, then Franchisee shall within fifteen (15) days following notice, pay to Franchisor the reasonable and
customary cost of such an examination or audit as well as all additional amounts of royalty-service fee charges, advertising charges,
and any other charges or fees shown to be due. Payment and acceptance of such amounts shall not waive or prejudice any right of
Franchisor to exercise any other remedy of this Agreement, including termination in accordance with Paragraph XIII of this
Agreement. Any delinquent royalty-service fee or other fees or charges due Franchisor from Franchisee shall bear interest at the annual
rate of eighteen percent (18%) from thirty (30) days after the date such amount was due until paid.
V. PROMOTION AND ADVERTISING
In addition to, and along with, the Royalty-Service fee provided herein, Franchisee shall pay monthly to Franchisor an advertising fee
equal to two percent (2%) of Franchisee's gross receipts as heretofore defined for the preceding month. All Franchisor-owned TPR test
preparation business units shall make a monthly contribution to the advertising fund in an amount
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equal to two percent (2%) of their gross receipts for the preceding month, and Franchisor shall use all such funds it receives hereunder
for the development, placement, and distribution of regional and national consumer advertising designed in its discretion to promote
consumer demand for services and products available from The Princeton Review franchises under the TPR Method.
Franchisor shall deposit and maintain all unexpended advertising funds collected from franchisees in an appropriately identified bank
account separate and distinct from any other and used for no other purpose. In the months of January and July of each year throughout
the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising funds collected and
specifically how such funds were expended during the preceding six-month period.
Franchisee may in its own right and at its own expense promote and advertise its franchised business, provided that all such
promotional materials and advertising proposed to be used shall prior to use or publication be submitted to and approved by
Franchisor in the interest of maintaining the integrity, force, quality, image and goodwill associated with the proprietary names and
marks of Franchisor. Unless Franchisor disapproves proposed advertising within seven (7) days following its receipt thereof, approval
hereunder shall be deemed to have been given.
VI. OBLIGATIONS OF FRANCHISOR
A. Undertakings Prior to Commencement of Operations. Prior to Franchisee's commencement of operations hereunder Franchisor
shall:
1. Training: Conduct a training program for Franchisee covering the TPR Method and courses currently available thereunder. The
training program will be at such
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location and time as Franchisor shall designate, and shall be at no extra charge for not more than two (2) persons designated by
Franchisee and acceptable to Franchisor. All expenses of travel, lodging, meals and other living expenses incurred by Franchisee's
personnel in attending such program shall be borne and paid for by Franchisee.
The grant of the franchise herein is conditioned upon successful completion of the training program by Franchisee or its personnel as
determined by Franchisor. If during the course of the training program or within fifteen (15) days thereafter Franchisor concludes that
Franchisee or its designee has not exhibited the aptitude, abilities, or personal characteristics necessary or desirable to operate
successfully a test preparation business in accordance with the standards and procedures of the Princeton Review Method and as a
Franchisee of Franchisor, Franchisor may, in its sole discretion and judgement, cancel this Agreement and all rights hereunder, where
permitted by applicable law, by giving notice to Franchisee and tendering to Franchisee a refund of its initial franchise fee. Franchisee
agrees that such refund shall be the full extent of Franchisor's liability and responsibility in the event of such cancellation, and that
upon cancellation Franchisee shall return to Franchisor all materials, manuals, information and all other items that Franchisee received
from Franchisor, including all copies thereof and notes thereon which Franchisee may have or control. Franchisee further agrees to
maintain strictly the confidentiality of all information received relating to the TPR Method and not to use in the operation of a test
preparation or similar business, any trade secrets or confidential information obtained from Franchisor in the course of the training
program or otherwise.
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2. Materials. Lend in trust to Franchisee the computer software and data and other course materials needed to conduct the franchised
business in accordance with the TPR Method which Franchisor may revise from time to time to reflect changes, additions and
improvements to suggested and required course offerings, procedures, policies, standards and specifications. Such material shall at all
times remain the property of Franchisor.
Franchisee agrees to follow the procedures and adhere to the policies set forth in any operating manuals or bulletin, and to maintain
their confidentiality. Upon expiration or termination of this Agreement, or upon reasonable request of Franchisor, Franchisee shall
return such materials to Franchisor.
3. Provide assistance in locating, selecting and equipping the specific business premises within the Franchisee's geographical area
suitable for conducting the franchised business activities.
B. Continuing Undertakings. Franchisor shall provide the following continuing services for the benefit of Franchisee:
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1. Method Improvements and Program Additions.
a. Make available to Franchisee from time to time all improvements and additions to the TPR Method that are circulated generally to
all other franchisees, and, except as otherwise provided hereunder, to Franchisor-owned TPR test preparation businesses. Franchisor
shall exercise due diligence to keep materials current.
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b. New, additional, or improved course programs developed by Franchisor which are designed to prepare students for college or
graduate school admissions tests will be offered exclusively for marketing by Franchisees. After any such program has been tested by
Franchisor for a period of at least one year, Franchisee shall be required to accept and put into use such program in the franchised
business. They may be subject to a fee or charge based only on the Franchisor's costs for providing Franchisee's personnel with
training necessary to incorporate and implement such programs in Franchisee's business. Franchisee shall not be required to accept
more than two (2) new programs in any calendar year.
c. Any new course developed by Franchisor other than one provided for in subparagraph b. above will be offered to Franchisee on a
first option basis before being offered to any other party. Until any such program has been tested by Franchisor for a period of at least
one year, and Franchisee has been extended a written option notice by Franchisor, Franchisee shall have the first option right to
exclusively market each program within the geographical area described in Paragraph I.A.1. of this Agreement. The first option right
herein provided shall be exercised by Franchisee by giving Franchisor written notice of its election to do so within thirty (30) days
following Franchisee's receipt of a statement of Franchisor describing the program, reciting Franchisee's right to obtain exclusive
marketing rights in said geographical area, and setting forth the fee or charge payable by Franchisee to secure such right and program.
The fee or charge payable shall be
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based on Franchisee's pro rata share of Franchisor's costs to develop the course and program. As used herein, the term "pro rata share"
means the proportionate value of the formula amount of Franchisee's initial franchise fee calculated on the basis of factors existing as
of a date six (6) months prior to the date the option offer is made ("the adjusted initial fee value") in relation to the total adjusted initial
franchise fee value on such date of all TPR franchises and of all Franchisor-owned TPR units assuming they were franchises.
In the event Franchisee does not exercise the first option rights herein provided, Franchisor shall have the right to grant said marketing
rights to any other party or parties within the aforesaid geographical area, but only under a name or mark other than THE
PRINCETON REVIEW or any other proprietary name or mark hereunder licensed to Franchisee.
(Except as otherwise agreed, Franchisor unilaterally represents that (i) it will not market any computer or videotape programs
purporting to prepare students for a college or graduate school admissions test, but nothing herein shall be understood to preclude
Franchisor from publishing and/or marketing any book designed to prepare students for the school admissions process including any
admissions or qualifications test; and, (ii) it will not engage in any business under any other name similar to or competitive with the
business franchised hereunder.)
As used herein, a program "tested by Franchisor" must have included, but is not limited to, conducting the new program among no less
than 100 participants, checking the results, and making the results available to Franchisee.
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2. Software Warranty. If Franchisee notifies Franchisor of the existence of an error in computer software that has been provided to
Franchisee by Franchisor which materially impairs Franchisee's ability to properly conduct its franchised TPR business, Franchisor
warrants to correct or rectify such error within five (5) days following its receipt of written notice from Franchisee ("the grace
period"). If any such computer software error is not corrected or rectified by Franchisor within the said grace period, Franchisor will
waive, or refund, payment of royalty-service fees otherwise payable in accordance with the following formula: 1/60 x D x R, where D
represents the number of days elapsing between the expiration of the grace period and the day on which the error was corrected, and R
represents the royalty-service fees payable by Franchisee to Franchisor for the specific test in which the error occurred for the year in
which the error occurred.
3. Assistance. Provide telephone counseling to Franchisee at reasonable times and frequency with respect to the operation and
management of the business, and make available to it the benefit of Franchisor's information, advice, expertise and know-how.
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4. Advertising. Make available to Franchisee from time to time, national and/or regional TPR advertising programs as they are
developed with advertising funds collected pursuant to Paragraph V. hereof and generally circulated. In the months of January and July
of each year during the term of this Agreement, Franchisor shall distribute to Franchisee a report disclosing receipts of advertising
funds collected and specifically how such funds were expended during the preceding six-month period.
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5. Continuing Training. Provide, at the option of Franchisor, mandatory training program/meetings. Franchisee agrees to attend (or to
cause its designated employees to attend) one mandatory training/program meeting per year, but failure to attend because of illness or
other physical incapacity shall not be a default hereunder. All mandatory training/program meetings will be held at a location within
the continental United States designated by Franchisor. Franchisor will not charge Franchisee a fee for mandatory meetings, but all
travel, living, and personal expenses incurred by Franchisee in connection with meeting attendance will be the sole obligation of
Franchisee.
VII. OBLIGATIONS OF FRANCHISEE
A. Promotion of The Princeton Review Method and Business.
1. Franchisee agrees during the term of this Agreement to promote at all times the sale of test preparation services available from
Franchisee pursuant to the TPR Method, using its best efforts to develop and enlarge Franchisee's market for such services. Franchisee
agrees to accept new, additional, and improved course programs developed by Franchisor and designed to prepare students for college
or graduate school admissions tests, and to pay to Franchisor a new program training fee based on Franchisor's costs for providing
such training for each such program to personnel of the Franchisee as is reasonably necessary to incorporate and implement such
programs in Franchisee's business, provided, that Franchisor has tested such program (in the manner required under Paragraph VI.B.1.
hereof) for a period of at least one (1) year.
New courses or programs developed by Franchisor for inclusion in the TPR Method other than those designed to prepare students for
college or graduate school
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admissions tests will be offered to Franchisee on a first option basis as provided by Paragraph VI.B. of this Agreement.
2. Franchisee hereby agrees to operate its franchised business in accordance with methods and procedures prescribed by Franchisor in
its operating manual or other bulletins, as revised from time to time, and to equip the franchised business in accordance with the
standards of the Franchisor, including, specifically, those items listed on Appendix A of this Agreement.
B. Management Responsibility and Business Conduct.
1. Franchisee agrees that at all times during the term of this Agreement Rob Case, or a successor, shall devote substantial time and
effort in the active management and operation of its test preparation business, shall be responsible for the management and operation
thereof, and shall act on behalf of Franchisee in all dealings with Franchisor. The person herein identified may be changed upon giving
written notice to Franchisor.
Franchisee understands, hereby acknowledges, and agrees that the kinds and extent of business results achieved, and the financial
returns and profits, if any, expected or realized from the investment in, and the operation of, the business franchised hereunder depend
principally and substantially on Franchisee's direct, personal and active continuous participation in the management, administration
and operation of such business.
2. Franchisee will at all times give efficient service to the public meeting the performance standards set forth in Appendix B of this
Agreement. Franchisor and Franchisee shall adhere to high standards of business ethics, integrity and fair dealing, and do nothing
which would tend to discredit or in any manner damage the reputation and
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good will of Franchisor, the TPR Method, Franchisee or other Franchisees of Franchisor. Franchisee will in a reasonably timely
manner provide Franchisor with reports and information concerning the identities, test scores and other results of enrolled students in
the form and manner requested.
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3. Franchisee shall make all payments and reports provided herein, and pay all debts owed to Franchisor, when they shall become due.
4. Franchisee shall conduct its business in accordance with all applicable laws and regulations, and at its own expense shall obtain and
maintain all permits, certificates, and licenses required to engage in the test preparation business franchised hereunder.
5. Franchisee warrants and covenants that during the term of this Agreement it will not engage in any capacity (a) in any educational
business activity with high school or college students except as provided herein, or (b) in any test preparation service business with any
person, without the advance, written consent of Franchisor.
C. Mandatory Attendance at Training/Program meetings. Franchisor shall have the right at its option to require Franchisee or its duly
authorized management representative to attend one training/program meeting per year, and Franchisee agrees it or its representative
will attend one such meeting at Franchisee's sole expense for all travel, living and incidental costs. Failure to attend because of illness
or other physical incapacity shall not be a default hereunder. The Franchisor shall charge Franchisee no fee for mandatory meetings.
D. Insurance. Franchisee alone shall be responsible for all loss or damage arising out of or relating to the operation of Franchisee's
business or arising out of the acts or omissions of Franchisee or any of its agents, employees, servants, or contractors in connection
with services
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offered or rendered by Franchisee, and for all claims for damage to property of for injury or death of any persons directly or indirectly
resulting therefrom, and Franchisee agrees to indemnify and hold Franchisor harmless against and from any and all such claims, loss,
and damage, including costs and reasonable attorneys fees, except for acts of the Franchisor or those committed at its direction.
Franchisee at its own cost and expense shall obtain and at all times during the term of this agreement maintain in full force and effect
automobile and public liability insurance with limits of liability for death and bodily injury of not less than $1,000,000.00 for each
person injured and $50,000.00 for property damages on each occurrence or a combined single limit of $1,000,000.00.
Said policies of insurance shall be on forms, upon terms and with insurers reasonably satisfactory to Franchisor.
Said policies of insurance shall expressly insure and protect both Franchisee and Franchisor. Franchisee shall furnish to Franchisor a
certified copy of certificate with respect to each such policy which provides that such policy shall not be canceled or modified except
upon 30 days prior written notice to Franchisor. If Franchisee fails to obtain or maintain in force any insurance as provided herein or to
furnish the certificates required hereunder, Franchisor may, in addition to other remedies it may have, maintain or obtain such
insurance and/or certificates, and Franchisee shall promptly reimburse Franchisor for all premiums and other costs incurred thereby.
VIII. PROPRIETARY MARKS
A. Validity and Use. The franchise granted hereunder and the Princeton Review Method are operated in connection with and through
the use of various trademarks, trade names, and service marks along with certain related words, slogans, letters, and symbols (all of
which are
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hereafter collectively referred to as "the Propriety Marks"). The Proprietary Marks include, but are not limited to, those registered, or
which may become registered, in the United States Patent and Trademark Office.
The following comprise the proprietary names and marks licensed and protected hereunder: THE PRINCETON REVIEW; TPR.
Franchisor reserves the right to alter, change or amend the Proprietary Marks referred to herein and to add proprietary names and
marks to those licensed hereunder. Franchisor does not warrant the availability or validity of said marks. In the event that the right to
use any name or proprietary mark granted to franchisee in connection herewith is threatened by anyone else, or if a registration
application for any such name or mark is denied or invalidated, Franchisor at its option shall have the right to either:
a. defend against any such claim or action which threatens use of the name or mark at Franchisor's sole expense; or
b. substitute a different name or mark nationally with all franchisees, in which case the substituted name or mark shall be accorded the
same treatment as provided herein; or
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c. discontinue use of the name or mark only with respect to Franchisee hereunder, in which event the parties agree that this Agreement
shall be modified to provide that, and to limit the extent of liability to, a reduction of the royalty rate payable hereunder by Franchisee
under Paragraph III. A. from eight percent (8%) to four percent (4%), and the elimination of Franchisee's obligation to pay any
advertising fee to Franchisor whatsoever.
As between the parties hereto, Franchisee acknowledges the validity of the Proprietary Marks and acknowledges that they are the
property of Franchisor. Franchisee hereby agrees to use the Proprietary Marks only for so long as the franchise and license granted
herein remain in force, and only in connection and in accord with the Princeton Review Method, and in compliance with this
Agreement and guidelines and bulletins issued by Franchisor relating to the proper use of the Proprietary Marks.
Franchisee shall not, either during or after the term of this Agreement, do anything, or aid or assist any other party to do anything,
which would infringe upon, harm, dilute or contest the rights of Franchisor in any of the Proprietary Marks or in any other mark or
name which incorporates the name Princeton Review. Franchisee acknowledges and agrees that all rights, benefits and goodwill that
may develop in the Proprietary Marks shall inure and accrue to the full and exclusive benefit of Franchisor.
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B. Firm Name. Franchisee shall operate, advertise, and promote the business and its services under the name The Princeton Review,
and shall designate in conjunction therewith that Franchisee is an independent franchisee. Franchisee shall not, however, use the name
The Princeton Review, or any other name containing such name, or any of the Proprietary Marks in or as part of the firm or corporate
name of Franchisee. Franchisee shall, upon request of Franchisor at any time, immediately stop the use of any such name or word in its
firm or corporate name, and shall promptly take such steps as may be necessary or appropriate in the judgment of Franchisor to
remove any such name or word from Franchisee's firm or corporate name.
C. Unauthorized Use. Franchisee shall promptly report to Franchisor any unauthorized use of the Proprietary Marks that come to its
attention in any manner whatever. Upon request of Franchisor, Franchisee agrees to cooperate with Franchisor in preventing
unauthorized use of the Proprietary Marks, or any confusingly similar mark, at the sole expense of Franchisor.
IX. CONFIDENTIALITY OF THE PRINCETON REVIEW METHOD
Franchisee hereby acknowledges that only Franchisor can license rights in and to the Princeton Review Method and any parts thereof,
including all material and information divulged to Franchisee relating to the Method. Franchisee further acknowledges that all parts of
the Method whether or not trade secrets, and which are not generally known to the public, constitute confidential business information
of Franchisor which are revealed to Franchisee in trust and in confidence, solely for the purpose of enabling Franchisee to establish
and operate the test preparation business franchised by this Agreement. Such confidential information includes, but is not limited to,
educational software programs, training aids, data, and written materials; business
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procedures and processes; supplies, equipment and material lists; instructor lists; customer information; training and operations
manuals; teaching techniques; promotion and marketing aids; business forms and accounting procedures; and informational bulletins.
Franchisee agrees that during and after the term of this Agreement, it will not reveal any of such information to any other person or
firm, except to employees of Franchisee, and then only in trust and in confidence, and only to the extent such knowledge is necessary
to perform the duties of their employment, and Franchisee agrees, further, that it will not use any of such confidential business
information in any manner in connection with any business or venture in which it has or may acquire any interest, direct or indirect, in
any capacity whatever, other than in connection with the operation of the business franchised hereunder. Nothing herein shall be
understood as prohibiting Franchisee from selling any of its mailing lists to any other party.
X. IMPROVEMENTS TO THE METHOD
In order to assure maximum uniformity of quality, performance and service, nationally in all courses conducted by all franchisees.
Franchisee agrees to follow the procedures prescribed by the Princeton Review Method. As Franchisor develops or learns of
improvements, and adopts them for the method, it will inform franchisees and authorize their use in Franchisee's business. In return
and in consideration therefore, Franchisee agrees that any idea or suggested innovation or variation, which may tend to enhance or
improve the efficiency or effectiveness of test preparation services compatible with the Princeton Review Method, that Franchisee
discovers or otherwise becomes aware of during the term of this Agreement shall be submitted to Franchisor for its evaluation for
adoption and use and Franchisee agrees that all proprietary rights to such ideas, innovations or variations created or acquired by
Franchisee or any of its employees may be
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adopted and used by Franchisor and may be made available to other franchisees.
XI. RIGHTS AND LIMITATIONS ON ASSIGNABILITY BY FRANCHISEE
A. Assignment of Franchise Rights. The franchise rights granted hereunder are personal in nature to the Franchisee who is a party to
this Agreement. Franchisee hereby agrees not to sell, assign, transfer, convey, or encumber this Agreement or any right or interest
therein or thereunder, or to suffer or permit any such sale, assignment, transfer, conveyance or encumbrance to occur by operation of
law, without the prior written consent of Franchisor. Such consent shall not be unreasonably withheld, may not require that there be
any change in the terms of this Agreement or any extension thereof, and shall be determined on the bases of the personal, business, and
financial qualifications of the proposed transferee, and its acceptance of the obligations and terms of this Agreement. Franchisor will
not charge a transfer fee. Franchisor will respond to Franchisee's request for assignment with final answer within fourteen
(14) days following receipt of relevant information.
B. Franchisor's First Option to Acquire. In the event of any proposal to sell, assign, or transfer any right or interest in the business for
which Franchisee is hereunder franchised to use the Princeton Review Method (except for Franchisor-approved advertising for offers
to purchase), there shall first be submitted to Franchisor a copy of any bona fide written offer made or received, or if none, a statement
in writing of all the terms of the proposed purchaser, assignee or transferee. Thereafter, Franchisor shall have the irrevocable first right
and option to purchase or acquire any such right or interest on the same terms as stated in the offer or statement, and Franchisor may
exercise such right and option by notifying Franchisee in writing of its election to do so within thirty (30) days after its receipt of the
written offer or statement.
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If Franchisor does not so notify Franchisee within the thirty (30) day period, then the proposed sale, assignment or transfer of
Franchisee's business may be made to a party other than Franchisor, subject to Franchisor's consent as provided in Subparagraph XI
.A., but only on the terms set forth in the written offer or statement and only to the party therein identified. Such sale, assignment or
transfer shall constitute a cancellation and termination of all interest and rights of Franchisee under this Agreement whereupon all
obligations of Franchisee under Paragraph XIV. of this Agreement shall be effective.
If the proposed sale, assignment or transfer is not made within one-hundred-twenty (120) days after receipt by Franchisor of the
written offer or statement, it shall be deemed withdrawn or rejected and the provisions of this Paragraph XI.B. shall renew and again
be fully applicable.
C. Death or Disability of Franchisee. In the event of the death or disability of an individual Franchisee, Franchisor will consent to an
assignment and transfer of this Agreement on an interim basis to the personal representative of Franchisee, and subsequently to an heir,
legatee or devisee of Franchisee, provided that each of the following conditions is fulfilled with respect to each such assignment and
transfer:
1. It shall be demonstrated to the satisfaction of Franchisor that such personal representative or successor is qualified, on the bases of
character, business experience and capability, credit standing, health, and financial resources, necessary to successfully operate
Franchisee's business in accordance with the terms of this Agreement.
2. The person, if any, to be substituted in Paragraph VII .B. of this Agreement shall have been approved by Franchisor and shall have
successfully completed the training courses then in effect for franchisees or shall have completed such courses at
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the next earliest time offered by Franchisor.
3. There shall not be an existing default in any of the obligations of Franchisee which would constitute cause for termination pursuant
to Paragraph XIII. hereunder, and all amounts owed to Franchisor as of the date of death or disability shall be paid in full.
4. Such personal representative or successor shall have submitted to Franchisor satisfactory evidence that he has become entitled to
succeed to the rights of Franchisee hereunder, agrees to assume all obligations of Franchisee hereunder and agrees to be bound by all
the terms and provisions of this Agreement to the same extent and manner as Franchisee, and executes such personal undertakings as
Franchisor shall reasonably require.
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Any consent of Franchisor hereunder shall not constitute consent to any subsequent assignment or transfer.
XII. ASSIGNABILITY BY FRANCHISOR
This Agreement may be assigned by Franchisor or by any successor, to any party or corporation which may succeed to the business of
Franchisor or of such successor by sale of assets, merger, or consolidation or otherwise, and may also be assigned by Franchisor or by
such successor to the shareholders thereof in connection with any distribution of the assets of said party or corporation, provided, the
assignee assumes the responsibilities and obligations of Franchisor under this Agreement.
XIII. TERMINATION
Termination by Franchisor for cause. Franchisee agrees that Franchisor may terminate this Agreement prior to the expiration of its
term if any of the following conditions occur by giving
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Franchisee written notice of termination, provided, that wherever a reason for termination is prohibited by, or a period of notice or a
time allowed to cure a default as stated in this Paragraph XIII. is different from, applicable law in effect as of the effective date of this
Agreement, such reason may be deemed deleted, and such period or time shall be deemed ended, to conform with such applicable law:
A. Franchisee fails to make any payment of money owed to Franchisor when due, or fails to submit to Franchisor when due any report
required pursuant to this Agreement, and such default is not fully cured within fifteen (15) days after Franchisor gives notice of such
default to Franchisee;
B. Franchisee is declared or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a receiver is
appointed for its assets or business, or a proceeding is commenced by or against Franchisee for appointment of a receiver or for a
reorganization or similar arrangement under state law or any provisions of Federal bankruptcy law, and, if involuntary, such
proceeding is not dismissed within sixty (60) days of the filing thereof;
C. Franchisee assigns, sells, encumbers, or transfers this Agreement without Franchisor's prior written consent;
D. Subject to Paragraph XI.C. of this Agreement, Franchisee becomes unable because of its condition of health to perform the
obligations required or contemplated hereunder for a period of more than thirty (30) days.
E. Franchisee conducts no course authorized by the TPR method during any consecutive six (6) month period.
F. Franchisee jeopardizes the goodwill of Franchisor's Proprietary Marks, the
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Franchisee's business, the Princeton Review Method, including failure to meet minimum standards of performance provided by this
Agreement, or the reputation of Franchisor, and fails to cure to the extent possible such default within thirty (30) days following notice
to Franchisee by Franchisor;
G. Franchisee fails to maintain the confidentiality of the Princeton Review Method as provided in Paragraph IX. of this Agreement;
H. Franchisee defaults in the performance of the obligations, assumed under Paragraph VII. of this Agreement and fails to cure any
such default within thirty (30) days following notice to Franchisee by Franchisor;
I. Franchisee fails to maintain an independent contractor relationship with Franchisor pursuant to Paragraph XVI.F., except if caused
by Franchisor;
J. Franchisee is convicted of a felony and has exhausted all available appeals;
K. Franchisee fails to perform any material obligation assumed by Franchisee under this Agreement, other than those specifically
referred to in this Paragraph, and such default is not satisfactorily cured within thirty (30) days after Franchisor gives written notice of
such default to Franchisee, or if Franchisee repeatedly defaults or breaches obligations assumed under this Agreement;
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L. Franchisee fails to conduct its business in accordance with all applicable laws and regulations. This shall not prevent Franchisee
from contesting in good faith the validity or applicability of any purported legal obligation to the extent and in the manner permitted by
law.
Notwithstanding the foregoing, in the event that Franchisee is given Notice of Termination by Franchisor for any cause or causes
specified in Subparagraphs XIII. C., D., E., F., G., H., I., J.,
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K., or L. of this Agreement, Franchisee shall, upon its request, be given the opportunity for a period not to exceed one hundred twenty
(120) days following Franchisee's receipt of the Notice of Termination, to present in writing to Franchisor the terms of, and the identity
of parties to, a bona fide offer to purchase Franchisee's The Princeton Review business, and such offer shall be subject to, and
processed in accordance with, the provisions of Subparagraphs XI.A. and XI.B. of this Agreement, provided, that during the said one
hundred twenty (120) day period Franchisee does nothing to discredit Franchisor or the franchised business, and, provided, further,
that if the Notice of Termination is based on a cause specified in Subparagraph XIII.J. of this Agreement, Franchisor shall have the
option of taking over exclusive management and operating control of the franchised business during all or any part of the period
following Notice of Termination.
If a proposed sale hereunder is not completed within sixty (60) days following Franchisor's written consent to the proposed sale,
termination shall immediately thereafter be effective, and the provisions of Paragraph XIV. of this Agreement shall thereupon apply.
XIV. OBLIGATIONS UPON TERMINATION
Upon termination, expiration, or cancellation of this Agreement for any reason or in any manner, Franchisee shall cease to be an
authorized The Princeton Review franchisee, and Franchisee shall:
A. Immediately discontinue the use of the Princeton Review Method in its entirety, all Proprietary Marks, and any names, masks or
signs which may be confusingly similar thereto, and all other materials which may indicate that Franchisee is or was an authorized The
Princeton Review franchisee or otherwise associated with Franchisor. Franchisee further agrees to return to Franchisor all materials
containing any reference to Franchisor, and to cancel any pending
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advertising and discontinue future advertising which refers to or connotes any relationship between Franchisee and Franchisor.
B. Promptly pay to Franchisor all sums owing from Franchisee to Franchisor. Termination of this Agreement under any circumstances
shall not relieve Franchisee of any debt, obligation, or liability to Franchisor which may have accrued hereunder, and all obligations
and agreements of Franchisee which expressly or by implication are to be performed after the termination of this Agreement shall
survive such termination.
C. Offer, for a period of acceptance of not less than fifteen (15) days, to sell to Franchisor at its then market value, all or any portion of
equipment and supplies suitable for use is connection with the Princeton Review Method, prior to offering the same to any other party.
D. Assist Franchisor in every way possible to bring about an immediately effective, complete and orderly transfer of Franchisee's test
preparation business and students to Franchisor or to such persons as Franchisor may designate. Franchisee specifically agrees
hereunder to cooperate fully with Franchisor to assign immediately to Franchisor any and all business telephone numbers used by
Franchisee in the conduct or promotion of the franchised business, and hereby irrevocably appoints and authorizes Franchisor to act as
Franchisee's attorney-in-fact and agent to effect such assignment.
E. Maintain the confidentiality and not disclose to any person any of the confidential business or trade secrets furnished to Franchisee
by Franchisor under this Agreement or in connection with the operation of the business licensed hereunder.
F. Refrain from engaging in, or becoming in any manner financially interested in, the educational testing or any related business
similar to the franchised business for a period of one
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year following cessation of this Agreement within the geographic territory described in Section I.A.1 hereunder and within twenty-five
(25) miles outside the boundary lines of such territory.
2002. EDGAR Online, Inc.
XV. INDEMNIFICATION
A. By Franchisor. In the event Franchisee is sued for damages in any suit or action based on grounds of Franchisee's infringing use of
any Proprietary Mark licensed to Franchisee by Franchisor, or of Franchisee's infringing use of materials provided to Franchisee by
Franchisor for use in the franchised The Princeton Review business, Franchisor shall defend the suit or action and shall indemnify
Franchisee for all damages awarded, provided:
Franchisee gives Franchisor immediate notice of any suits or actions instituted or threatened against Franchisee and reasonably
cooperates in its defense, and Franchisor has the sole right to control the defense of, and the sole discretion to compromise and settle,
any such suit or action.
B. By Franchisee. In the event Franchisor is sued and found liable by final judgment for damages in any suit or action based on
grounds of Franchisee's acts or conduct not authorized by Franchisor, Franchisee shall indemnify Franchisor from all damages
awarded and reasonable attorneys' fees, provided, Franchisor gives Franchisee immediate notice of any such suit or action instituted or
threatened against Franchisor, and Franchisee has the right to participate in the defense of any such suit or action.
XVI. MISCELLANEOUS
A. Grammar. Any personal pronoun shall include the masculine, feminine and/or the neuter thereof, and the singular of any noun or
pronoun shall include the plural and plural the singular, wherever the context may require.
B. Section Headings. Section headings are for ease of reference only. They are not a
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part of this Agreement and shall not limit or define the meaning of any provision.
C. Non-waiver. No failure by Licensor to take action on account of any default by Franchisee, whether in a single instance or
repeatedly, shall constitute a waiver of any such default or of the performance required of Franchisee.
D. Invalidity. If any provision of this Agreement shall be invalid or unenforceable, either in its entirety or partially or because of its
application to particular circumstances, such provision shall, by mutual intention herein expressed by the parties hereto, be deemed
modified to the extent necessary to render such provision valid or inapplicable, or to be eliminated from this Agreement, if required,
and this Agreement shall be construed and enforced as if such provision had been originally so modified or eliminated. In the event
that total or partial invalidity or unenforceability of any provision of this Agreement exists only with respect to the laws of a particular
jurisdiction, this section shall apply only to the extent that the laws of such jurisdiction are controlling.
E. Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the
subject matter hereof, and it may be modified only by a written document executed by the party sought to be bound or obligated. The
parties acknowledge hereby that there are no representations, understandings, agreements, terms or conditions not contained or
referred to in this Agreement, and that this Agreement supersedes any prior written or oral agreements, representations or inducements.
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F. Relationship of the Parties. This Agreement does cot create the relationship of principal and agent, joint ventures, or partners
between Franchisor and Franchisee, and in no circumstances shall Franchisee be considered an agent of Franchisor. Franchisee agrees
that it will do nothing to give the impression that it is an agent of Franchisor or to attempt to create any obligation on behalf of or in the
name of Franchisor.
G. Interpretation of the Agreement. This Agreement shall be interpreted under the laws of the State of New York except to the extent
that the law of the State in which the Franchisee's business is located requires that it be interpreted under the laws of such state.
H. Counterparts. This Agreement may be executed in any number of identical counterparts, and each such counterpart shall be deemed
a duplicate original hereof.
I. Notices. Any notice required or permitted under this Agreement shall be in writing and either delivered in person or mailed, return
receipt requested, postage fully prepaid and addressed as follows:
1. If to Franchisee, either to the address of Franchisee's business as set forth heretofore or to Franchisee's residence address; and.
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2. If to Franchisor, the address of its principal offices as heretofore set forth. Addresses for notices may be changed at any time upon
written notice thereof.
J. Unless otherwise agreed, this agreement shall become effective on the date upon which it is executed by all parties hereto.
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In witness whereof, Franchisee and Franchisor have executed this Agreement on the date or dates here below written.
Witness: Franchisee
/s/ Rob Case
/s/ Richard W. McDugald
/s/ Eleanor G. Knudsen /s/ Kevin Campbell (SEAL)
---------------------- ----------------------------
Signature
Kevin Campbell
-------------------
Full Name (Printed)
Date: June 15, 1986
Address and phone number of
Franchisee's residence:
906 Hemphill
Houston, TX 77007
(713) 880-2801 (McDugald)
Attest: PRINCETON REVIEW MANAGEMENT
CORP.
(Franchisor)
/s/ Mark Chernis By: /s/ John Katzman
---------------------------- ----------------------
Title: Chairman
Date: 9/13/86
35
THE PRINCETON REVIEW FRANCHISE AGREEMENT
Appendix A (under Paragraph VII. A.)
EQUIPMENT NECESSARY TO CONDUCT THE FRANCHISED BUSINESS:
2002. EDGAR Online, Inc.
% An IBM Personal Computer or equivalent, with 256K memory, a 10mg
hard
disk, serial and parallel ports.
% A Hayes compatible 1200 baud modem (internal or external)
% Two printers: one letter quality and the other dot matrix
% An optical mark reader made by Scantron Corp-option 1 (optional)
% A copying machine
% A telephone answering machine or answering service
The equipment may be purchased from any dealer of such equipment. It may be new or used, must perform suitably.
/s/ Rob Case
/s/ Rw McDougald
------------------
Franchisee
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THE PRINCETON REVIEW FRANCHISE AGREEMENT
APPENDIX B (Under Paragraph VII .B.2. )
Standards of Performance:
The Franchise represents The Princeton Review in its community; a serious breach would irreparably damage the reputation of the
company and all franchisees in the system. Any legal judgment that a franchisee has helped a student cheat, or any conviction of a
felony, is cause for termination under Paragraphs XIII .F. and J. of the Franchise Agreement.
The results of students who take the program are also very important, and will be evaluated in the interest of the success of all
involved. The method by which the performance of franchisees will be judged is as follows.
Results of testing can be measured objectively: the improvement of each student is the difference between his final test score and his
most recent prior test score. It the student has not previously taken a particular test or preliminary test before enrolling in the course, a
comparison will be made with the student's first diagnostic test score.
To be satisfactory, a franchisee's students' results for each test offered must approximate or exceed nationwide results for that
particular test. A franchisee's performance will be deemed unsatisfactory if, for three successive terms, his students' testing results for a
specific test are more than twenty-five percent (25%) below the average results of all students of all The Princeton Review site
locations for that test for that term.
If a franchise fails to meet the test score standard of satisfactory performance, the franchisee will be liable to Franchisor for a
consultation charge not to exceed five percent (5%) of gross receipts derived from Franchisee's substandard test business for the year
in which performance was below standard. In return, the Franchisor, for a reasonable charge not to exceed
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said five percent (5%) will send one or more representatives to the franchisee's sub-standard location for the purpose of monitoring the
operation, diagnosing the causes of inadequate results, and making recommendations for improvements. In the event the Franchisee
follows the Franchisor's recommendations for improving performance, and the location's results are not in fact improved, the full
amount of the consultation charge will be refunded.
/s/ Rob Case
/s/ Rw McDougald
---------------------
Franchisee
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CONSENT TO ASSIGNMENT OF FRANCHISE AGREEMENT
AGREEMENT made this 15tH day of June, 1986, by and between Robert Case, Richard McDugald and Kevin Campbell (hereinafter
referred us as Elie Franchisee), and Princeton Review Management Corp. (hereinafter referred to as the Franchisor), WITNESSETH:
WHEREAS, the Franchisee, a natural person, and the Franchisor have entered into a The Princeton Review Franchise Agreement
dated June 15, 1986, and
WHEREAS, said Franchise Agreement provides that the Franchisee may not assign any right or interest in the said Agreement or in
any separate and independent franchise agreement granted under the terms of the Franchise Agreement and on Addendum Agreement
thereto, and
WHEREAS, the Franchisee desires to obtain in advance the Franchisor's consent to assign his rights and interests in the aforesaid
Franchise Agreement and in independent, separate The Princeton Review franchise agreements which may be acquired in the future to
a corporation or corporations in which the Franchisee owns and exercises a controlling stock interest, and
WHEREAS, the Franchisor is willing to give its consent to such aforesaid assignment or assignment;
NOW THEREFORE, it is hereby agreed as follows:
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In consideration of the foregoing and of the following mutual promises and undertakings:
1. The Franchisor agrees and consents to the assignment of any The Princeton Review Franchise Agreement between the Franchisor
and the Franchisee, including the aforesaid Franchise Agreement and any separate and independent franchise agreement growing out
of the provisions of the Addendum thereto, to either an existing or future corporation in which the Franchisee has and maintains a
controlling stock interest, provided, the Franchisee gives the Franchisor prior notice of assignment along with a copy of a written
agreement effecting the assignment in which the assignee agrees to assume all obligations of the assignor under the franchise
agreement, and provides the Franchisor with an accurate and complete listing of all stockholders of the assignee corporation setting
forth their respective stock interests. Upon receipt of the foregoing notice, copy of written assignment agreement and listing of
stockholders, the Franchisee shall be relieved as of the effective date of the assignment of personal liability under the assigned
franchise agreement except for the obligations set forth in paragraph 2 of this "Consent to Assignment."
2. The Franchisee promises and agrees:
a. To provide the Franchisor with the information provided in paragraph 1 of this Agreement and to keep such information current;
b. To remain personally liable following an assignment subject to this Agreement for the obligations of any assignee corporation for
2002. EDGAR Online, Inc.
payment of royalty-service fees and advertising fees currently due and payable at any time during the term of this Agreement to the
Franchisor, and for all currently due and payable fees or charges for materials, training, inventory, software or equipment provided to
the assignee corporation by the Franchisor; and
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c. To remain personally obligated to comply with all restrictive covenants provided under said franchise agreements, including use of
the Franchisor's business information, methods and names (under paragraph I.A.2. & 3. of the Franchise Agreement); use of the
proprietary marks (under paragraph VIII. of the Franchise Agreement); maintenance of confidentiality (under paragraph IX. of the
Franchise Agreement); engaging in conflicting and competing business activity during the term of the franchise (under paragraph VII.
B. 5. of the Franchise Agreement) and after the term of the franchise (under paragraph XIV.F. of the Franchise Agreement); and
maintaining post-term confidentially (under paragraph XIV.E. of the Franchise Agreement).
In Witness Whereof, the parties hereto have executed this Agreement the day and year first above written.
Franchisee
/s/ Richard W. McDougald
/s/ Rob Case
/s/ Eleanor G. Knudsen /s/ Kevin Campbell
----------------------------
----------------------------
Witness
The Princeton Review Management Corp. Franchisor
Attest:
/s/ Mark Chernis By: /s/ John Katzman
----------------------------
----------------------------
1
EXHIBIT 10.41
ADDENDUM
THIS ADDENDUM to the Franchise Agreement ("Franchise Agreement") described on the Franchisee Joinder attached hereto is
made and entered into between The Princeton Review Management Corp. (the "Franchisor") and the person identified on the
Franchisee Joinder attached hereto (the "Franchisee") effective as of May 31, 1995. This Addendum is intended by the parties to add
to, modify and interpret the said Franchise Agreement, and to replace and take precedence over any term, provision or condition
thereof which may be contrary to, or inconsistent with any provision of this Addendum. Capitalized terms used herein which are not
defined herein shall have the meaning given by the provisions of the Franchise Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Zee Votes. When a "Zee Vote" is required under this Addendum in order to approve a Franchisor-proposed action, Franchisor shall
conduct a vote of the Domestic Franchisee Group (as such term is defined in Paragraph 1.4 below) in accordance with the provisions
hereof. When franchisees in the Domestic Franchisee Group, which together pay no less than the requisite percentage of the total
domestic royalties received in the prior twelve (12) months by Franchisor from all of the franchisees in the Domestic Franchisee
Group, vote in favor of the proposed action ("Zee Vote"), approval shall be deemed given by the entire Domestic Franchisee Group.
As used in the immediately preceding sentence, the term "domestic royalties" shall refer to the royalties payable to Franchisor in
2002. EDGAR Online, Inc.
respect of franchisee operations in the United States only.
1.1 Votes of the Domestic Franchisee Group shall be cast by written ballot manually signed by a duly authorized representative of
each franchisee in the Domestic Franchisee Group. Franchisor shall be responsible for preparing and distributing ballots to all
franchisees in the Domestic Franchisee Group which shall set forth the proposed action in reasonable detail, the percentage of the vote
represented by each franchisee in the Domestic Franchisee Group (assuming voting participation by all franchisees in the Domestic
Franchisee Group), any explanatory or policy statements appropriate in the judgment of Franchisor, and the place to, and the date by
which, ballots must be returned.
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1.2 Unless otherwise stated in the ballot, any franchisee ballot not voted, signed and returned by the time specified ("end date"), which
unless waived by Franchisee shall not be less than fourteen (14) days from the date delivered to Franchisee, shall be counted as an
abstention, and any abstention shall not be factored into the requisite percentage calculation.
1.3 Within 15 days following the end date of a Zee Vote, Franchisor shall notify Franchisee of the percentage vote (as defined in
paragraph 1, above) cast in favor of the proposal. Upon the written request of Franchisee, Franchisor shall disclose to Franchisee the
vote and percentage of each franchisee in the Domestic Franchisee Group with respect to any Zee Vote. Franchisee hereby authorizes
Franchisor to provide such information concerning its vote to any other franchisee in the Domestic Franchisee Group.
1.4 As used herein, the term "Domestic Franchisee Group" shall mean and include all of The Princeton Review test preparation
franchisees having a "Territory" (which as used herein means, with respect to any franchisee, the geographical area specified in
Section I.A.1. of the Franchise Agreement previously entered into by and between Franchisor and such franchisee) located in the
United States, whether or not such franchisee is an Affiliate of Franchisor, who are in operation as of the distribution date of the ballots
applicable to the Zee Vote at issue and who have executed an Addendum to their respective Franchise Agreement identical in all
material terms to this Addendum (including any subsequent amendments hereto). Those members of the Domestic Franchisee Group
which are not Affiliates of Franchisor shall be referred to as "Independent Franchisees".
1.5 As used herein, the term "Affiliate" shall mean, with respect to any person, any other person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common control with, the person specified. The term "control"
(including, with correlative meanings, the terms "controlled by" and "under common control with"), when used with respect to any
specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
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2. National Accounts. Franchisor shall have the right in Franchisee's Territory to market TPR Services (as such term is defined in
Paragraph
2.1 below) to national accounts, at a price to be determined by Franchisor, subject to the terms of this paragraph.
2.1 A "national account" is an organization having facilities, personnel, customers, or members located within the Territory of three or
more Franchise Families and which has entered into an agreement with Franchisor to promote, endorse, sponsor, recommend, permit
or cooperate with the marketing of The Princeton Review services in their facilities or to their personnel, customers, or members.
"TPR Services" shall mean, at any time, those business activities then engaged in by The Princeton Review franchisees in the
Domestic Franchisee Group and which are regularly offered to the public for a fee. As used herein, the term "Franchise Family" shall
mean one or more franchisees which are Affiliates of one another. When used in relation to a Franchise Family, the term "Territory"
shall mean the geographical areas encompassed by all of the Territories of all the franchisees in such Franchise Family.
2.2 Franchisee agrees to provide TPR Services to a national account at the request of Franchisor, provided that the following limiting
provisions shall apply:
(a) The Franchisee shall not be required to provide any TPR Services to a national account pursuant to these provisions which require
a price discount of more than the lesser of $50.00 or 15% ("Maximum Discount Amount") from the Franchisee's standard retail prices.
The reference to $50.00 in the immediately preceding sentence shall be annually adjusted for increases occurring after the first
anniversary of this Addendum in the Consumer Price Index for All Urban Consumers ("CPI") as published by the Bureau of Labor
Statistics. The Maximum Discount Amount may be changed by a 75% Zee Vote.
(b) Any and all revenues that may be received by the Franchisor from national accounts for the sale of any TPR Services in the
Franchisee's Territory shall be forwarded to the Franchisee within fourteen (14) days following receipt thereof by the Franchisor. All
such revenues shall constitute Franchisee Gross Receipts under the Franchise Agreement.
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(c) The Franchisee shall not be required to provide any TPR Services to a national account pursuant to these provisions at a location
which is more
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than 50 miles from any permanent office of the Franchisee if the Franchisee can demonstrate that the amount of direct costs which will
be incurred in performing such TPR Services will exceed the amount of revenues to be derived (net of all sales taxes and royalty and
advertising fees to Franchisor) from such TPR Services.
2.3 If more than 50% of the personnel, customers, or members of a national account are located in the Territory of a Franchise Family
(as defined in Section 2.1) which includes Franchisee, then any agreement made by Franchisor with such national account pursuant to
any part of paragraph 2 is subject to Franchisee's approval, such approval not to be unreasonably withheld. Franchisor shall give
Franchisee notice in writing or by fax or electronic mail of a proposed marketing agreement. If Franchisee does not expressly in
writing or by electronic mail disapprove of the proposal giving its reasons therefor within ten (10) days following receipt of notice,
approval shall be deemed to have been given.
3. Interactive Technology Products. Notwithstanding any provision to the contrary contained in the Franchise Agreement, but subject
to the terms and conditions contained in this Section 3, Franchisor shall have the right to market and sell in Franchisee's Territory
instruction delivered through real time (i.e. contemporaneous, and not pre-recorded or delayed transmissions) interactive technology
which simulates a classroom or tutoring experience ("Interactive Product").
3.1 Franchisor may not market or sell any Interactive Product in Franchisee's Territory unless the franchisees which are Affiliates of
Franchisor generally market and sell that same Interactive Product at substantially similar prices.
3.2 All revenues that are received by the Franchisor from the sale of any Interactive Product in the Franchisee's Territory ("Interactive
Product Revenues") shall be forwarded to the Franchisee within fourteen (14) days following the end of the month in which they were
received by the Franchisor. All such revenues shall constitute Franchisee Gross Receipts under the Franchise Agreement.
3.3 In connection with the marketing and sale of an Interactive Product in Franchisee's Territory, Franchisee shall provide such
reasonable and necessary services in support of such Interactive Product as may be requested by Franchisor unless the Franchisee can
demonstrate that the amount of direct costs which will
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be incurred in performing such services will exceed the amount of revenues to be derived by Franchisee (net of all sales taxes and
royalty and advertising fees to Franchisor) from the sale of such Interactive Product. Notwithstanding the foregoing, the Franchisee
shall not be required to provide any services pursuant to this Section 3.3 which are not similar to the types of services ordinarily
provided by the Franchisee in the conduct of its business under the Franchise Agreement.
3.4 Franchisor may deduct and retain from Interactive Product Revenues the amount of direct costs actually paid by Franchisor which
are properly allocable to the sale or marketing of an Interactive Product in Franchisee's Territory. Franchisee Gross Receipts subject to
royalty-service and advertising fee payments under the Franchise Agreement and attributable to an Interactive Product shall be reduced
by twice the Interactive Excess, as hereafter defined, of such product. If any direct costs are payable to Franchisor or any Affiliate of
Franchisor, the amount thereof shall not exceed the amount which would be paid for the same or comparable product or service sold or
provided by a third party in an arms-length transaction. As used above, the term "Interactive Excess" shall mean, with respect to any
Interactive Product, the amount, if any, by which the sum of (i) the direct costs deducted hereunder by Franchisor with respect to such
Interactive Product, plus (ii) reasonable direct costs incurred by the Franchisee in fulfilling the requirements imposed on the
Franchisee by the Franchisor pursuant to
Section 3.3 hereof with respect to the Interactive Product, exceeds fifty percent (50%) of Interactive Product Revenues attributable to
such Interactive Product.
4. Relocated TPR Students. Franchisee shall provide test preparation services to students who have enrolled with other franchises in
accordance with the Statement of Inter-Franchise Transfer Policy appended hereto as Attachment 1 and herein incorporated by
reference. This transfer policy may be changed by a 75% Zee Vote.
5. Advertising Promotion And Public Relations By Franchisor. Franchisor may at its option and discretion, for so long as the Franchise
Agreement remains in effect, fulfill its obligation to develop and produce advertising and promotional materials, place advertising, and
conduct advertising, promotional and public relations programs and campaigns by using its own employees. Franchisor shall be
entitled to receive reimbursement from the Advertising Fund established pursuant to the Franchise
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Agreement for its direct expenses to the extent they are reasonable and used for the purposes specified in Section V of the Franchise
Agreement. Franchisor shall provide to Franchisee, every six months, an accounting of reimbursements claimed pursuant to this
Paragraph 5.
6. Expansion of the TPR Method. The definition of the "TPR Method" expressly includes without limitation instruction for academic
subjects, computer usage, languages, negotiation, financial aid, test preparation and admissions advice for actual or prospective grade
school, high school, college, graduate and professional school students, and adults, and includes the name and mark STUDENT
ACCESS and any name confusingly similar thereto. Except as expressly contemplated herein, Franchisor and Franchisee each agree
and covenant with the other that neither of them, nor any of their Affiliates, shall become engaged or involved in any business or
activity at any time during the term of the Franchise Agreement which relates to, involves or is competitive with the TPR Method other
than (i) any such business or activity conducted by Franchisee under the name "The Princeton Review" pursuant to, and in accordance
with, the terms of the Franchise Agreement, (ii) the publishing business to be conducted by The Princeton Review Publishing
Company, L.L.C. ("PUB"), an Affiliate of the Franchisor, and (iii) any such business or activity conducted by Franchisor, or an
Affiliate of Franchisor, under the name "The Princeton Review" in a defined geographical area outside of Franchisee's Territory in
accordance with the TPR Method and with the obligation to pay to the Franchisor royalty-service and advertising fees to the same
extent and manner as Franchisee. Nothing contained in this Paragraph 6 shall be construed to affect or otherwise alter the
post-termination obligations of Franchisee contained in Section XIV of the Franchise Agreement. If Franchisee should ever sell, assign
or otherwise transfer all of the franchise rights granted under the Franchise Agreement in accordance with the provisions thereof, then
the Franchise Agreement, in accordance with Section XI.B. thereof, shall be deemed to have been terminated by mutual consent and
the term thereof shall be deemed to have expired upon completion of such sale, assignment or other transfer, and all obligations of
Franchisee under
Section XIV. thereof shall become effective.
6.1 In Section VI.B.1.a of the Franchise Agreement, the word "and" appearing after the phrase "circulated generally to all other
franchisees" and before the phrase "except as otherwise hereunder" is hereby replaced with the word "or".
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7. TPR Publishing.
7.1 Franchisor represents to Franchisee, and Franchisee acknowledges, that pursuant to the provisions of Section 4 of the License
Agreement between Franchisor and THE PRINCETON REVIEW PUBLISHING COMPANY, L.L.C. ("PUB"), PUB agreed that
"Any product, technique or mark developed or acquired by PUB (a "PUB Product") shall be offered to [Franchisor] for (i)
[Franchisor's] own use in the operation of the Course Business, and (ii) use by [Franchisor's] franchisees in accordance with, and
subject to, the terms contained in the franchise agreements between [Franchisor] and each of its franchisees." In that connection, the
parties agree that Franchisee's use of PUB's products shall be allowed only in accordance with the following provisions:
(a) Franchisee shall have the right and license to (i) use PUB's products in The Princeton Review courses offered pursuant to the
Franchise Agreement and (ii) purchase from Franchisor or any designee or affiliate of Franchisor or any of PUB's products for such
purpose at PUB's incremental cost of production plus 10%, subject to the following limitations and conditions:
(1) None of PUB's products purchased by Franchisee from Franchisor pursuant to this Section 7.1(a) may be resold to any person at
any price. Such products may only be distributed to students enrolled in The Princeton Review courses, offered pursuant to the
Franchise Agreement, at no additional cost or charge.
(2) The use of any PUB product in any The Princeton Review course must be approved in advance by Franchisor, such approval not to
be unreasonably withheld.
(3) The sum of the suggested retail prices of all of the PUB products distributed in any single The Princeton Review course pursuant to
the right contained in this
Section 7.1(a) shall not exceed 40% of the total cost of such course.
(b) In addition to, and without limiting, the rights created in
Section 7.1(a) hereof, and subject to the availability of products, Franchisee shall have the right to purchase from Franchisor any of
PUB's products at the Applicable Wholesale Price (as herein defined) and resell such products, either alone or together with
Franchisor-approved services provided by Franchisee in
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Franchisee's Territory. Franchisor's approval is not to be unreasonably withheld.
(1) For purposes of the Franchise Agreement, the revenues attributable to the sale by the Franchisee of any PUB product purchased
from the Franchisor shall not be subject to the royalty fee or advertising fee provisions of the Franchise Agreement except to the extent
that the price charged for a PUB product exceeds its suggested retail price. All revenues attributable to services sold with any PUB
product shall be subject to such royalty and advertising fee payments.
(2) As used herein, the term "Applicable Wholesale Price" shall mean, with respect to any PUB product, the lowest wholesale price
charged contemporaneously by PUB for such product to any one of its three largest wholesale customers.
(c) As used herein, references to "PUB's products" or a "PUB product" shall mean and refer to (i) for purposes of section 7.1(b)
hereof, any and all materials, supplies and products of PUB sold at retail which are not subject to an exclusive distribution agreement
and (ii) for all other purposes of this Addendum, any and all materials, supplies and products of PUB which are offered to the public at
retail through any means.
7.2 Franchisee shall be provided with all mailing list information maintained by one or both of PUB and Franchisor to the extent that
such mailing list contains information about persons within the Franchisee's Territory, and shall have the right to use such information
only for the promotion of Franchisee's The Princeton Review business. Franchisee shall not permit the use of such information by any
party without the prior, express written consent of Franchisor.
7.3 Franchisee shall provide PUB and Franchisor with mailing list information it maintains, and PUB and Franchisor shall have the
right to sell or rent such information for any business purpose, including any which may not have been permitted under the Franchise
Agreement prior to this Addendum, provided that such prior unpermitted purpose is approved by a 75% Zee Vote.
7.4 If Franchisor has not developed a The Princeton Review course utilizing a PUB product, then Franchisee, following notice to
Franchisor, may at its own expense develop such a course ("PUB Course"), and offer it within Franchisee's Territory,
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subject to the terms of Subsection 7.1 above in regard to the use of PUB's products in such PUB Course. Any PUB Course shall be
subject to Franchisor's approval based on (i) quality standards equivalent to other products available under the TPR Method, (ii) lack
of any legal restriction and (iii) suitability of the nature of such PUB Course for inclusion and identification with other courses offered
under the TPR Method (considering the expertise and objectives of the Franchisor and the preferences of the consumer market it
serves), and subject also to the reimbursement of direct costs to Franchisor, if any. All PUB Courses offered shall be deemed
components of the TPR Method subject to all applicable provisions of the Franchise Agreement. As used in this Subsection 7.4, the
term "course" means a defined and standardized process of live instruction.
(a) The right created in Section 7.4 hereof to develop and offer a PUB Course in the Franchisee's Territory shall specifically include
the right and license to use any trade name, trademark or service mark used in conjunction with the PUB product upon which such
PUB Course is based, subject to the advance consent and approvals of the Franchisor and other limitations based on reasonable and
prudent trademark usage practices.
(b) Franchisor shall have the right in its sole discretion to incorporate any PUB Course into the TPR Method, as defined in the
Franchise Agreement and this Addendum thereto, and offer the course generally to all TPR franchisees without payment of
compensation to Franchisee. Upon request, Franchisee shall provide Franchisor with the information and cooperation reasonably
necessary to achieve this objective.
8. Computer Support and Access to Data. The parties agree that the computer systems are critical to the efficient and effective
operation of their respective The Princeton Review business and to proper oversight.
8.1 In the event that an error in The Princeton Review software or data makes it impossible for the Franchisee to manage his course
operations, Franchisor shall make its best efforts to provide computer support within 48 hours of receipt of written or electronic mail
notice. Understanding that running a TPR franchise often requires heavy computer use on weekends, Franchisor shall attempt to
provide computer support on Saturday afternoons (12:00 pm-5:00 pm New York time) during heavy use times.
9
2002. EDGAR Online, Inc.
10
8.2 Within four (4) days of the first and fifteenth of every month, Franchisee shall send to Franchisor on computer tape a copy of data
regarding Franchisee's business activities compiled and entered in accordance with the specifications, instructions and computer
program provided by Franchisor, which may be reasonably revised from time to time. Such tapes shall be sent by such means as they
will usually be received by Franchisor within five (5) days. Franchisor hereby releases Franchisee from claims prior to the date of this
Addendum arising from the failure to provide such tapes.
8.3 The parties acknowledge that it is in the best interest of The Princeton Review for each franchised office to run an up-to-date and
compatible software system, including network, word processing, spreadsheet, page layout, electronic mail, and other software deemed
both reasonable and necessary by Franchisor to run the franchised business efficiently and effectively. Therefore, Franchisee agrees
that any software he uses in the operation of the business shall have been legally acquired by Franchisee, and that Franchisor may
require software purchases of up to $200 per full time office employee per year, such amount to be annually adjusted for increases in
the Consumer Price Index for all Urban Consumers. Franchisor shall not charge Franchisee for the cost of software supplied by
Franchisor that is specific to the administration of the business.
8.4 If and when Franchisee is connected to the Franchisor's Wide Area Network, Franchisor will provide Franchisee support for all
legally-owned, Franchisor-approved network software in a manner similar to the support Franchisor provides for the franchisee
operations which Franchisor owns or controls. Franchisor may recover from Franchisee its reasonable proportionate costs for
maintaining the connection with Franchisee.
9. Affiliated Suppliers. If KIN, Inc. or any other Affiliate of Franchisor sells materials to any of the other The Princeton Review
franchises, Franchisor will exercise its authority over such Affiliate to have it sell such materials to Franchisee, provided, and on
condition that, Franchisee is not in default of any obligation to Franchisor or any Affiliate under the Franchise or other agreement. A
default under any obligation which the Franchisee incurs in connection with the purchase of materials pursuant to this Section 9 from
KIN, Inc. or any other Affiliate of Franchisor shall constitute a default under the Franchise Agreement.
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10. Extension of Term of Franchise Agreement. If the remaining portion of the initial term of Franchisee's Franchise Agreement with
Franchisor is a period of ten years or less, it is mutually agreed that, as of the expiration of that Agreement, the initial term will be
extended until December 31, 2005, provided that Franchisee has paid Franchisor a renewal fee of $2,500. If the Franchise Agreement
does not require payment of a renewal fee upon any extension of the term thereof, then the $2,500 renewal fee referred to in the
immediately preceding sentence shall not be payable by Franchisee to Franchisor. The provisions of this Paragraph 10 shall not alter,
modify or in any other way affect any provisions contained in the Franchise Agreement concerning other extension or renewal rights in
favor of the Franchisee.
11. Favored Nation Clause. Notwithstanding any prior agreement between Franchisor and Franchisee, and without incurring any
liability or other obligation arising therefrom, Franchisor shall have the unlimited right to negotiate and enter into Franchise
Agreements with any Franchisee located outside of the United States which may include any term, condition, provision or covenant
different from those provided in the Franchise Agreement or Agreements with Franchisee.
12. New Programs. The terms under which Franchisor shall offer a new course ("New Course"), other than one designed to prepare
students for a college or graduate school admission test, shall be governed by the following provisions in lieu of the provisions
contained in Section VI.B.1.c. of the Franchise Agreement.
12.1 Franchisor shall only offer a New Course to Franchisee (the "New Course Offer") if the New Course has been tested, as that term
is defined in the Franchise Agreement, for at least one year. Notwithstanding the preceding sentence, if Franchisor is wholly, or in
some material portion, developing the New Course through the making of a purchase of a course that has been operated for at least one
year by an unrelated and unaffiliated party ("Development Purchase"), then it will make the New Course Offer as soon as reasonably
possible after Franchisor determines that it intends to make such purchase.
12.2 When it makes a New Course Offer, Franchisor shall provide to Franchisee:
(a) All material information then known by Franchisor relating to (i) such New Course (including historical financial information) and
(ii) the terms of any
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2002. EDGAR Online, Inc.
proposed Development Purchase, including copies or summaries of any legal documents or current drafts of legal documents relating
to such purchase. Franchisor may condition the right to receive such information upon the execution of a reasonable non-disclosure
agreement. Franchisor shall update such information from time to time as necessary to advise Franchisee of any material changes.
(b) A written proposal ("Franchisor's Allocation Formula") setting forth a specific method or formula for allocating the cost of
developing and/or acquiring the New Course.
(c) Franchisee shall have the right to request additional information for a period of fifteen (15) days following receipt of the foregoing
information and proposal, and Franchisor shall respond to all such reasonable requests within ten (10) days following receipt thereof.
12.3 No earlier than 15 days after the close of the period within which Franchisee may request additional information pursuant to
Section 12.2 hereof, Franchisor shall conduct a Zee Vote to determine if the Franchisor's Allocation Formula is acceptable to the
franchisees in the Domestic Franchisee Group.
12.4 If Franchisor's Allocation Formula is approved by a 75% Zee Vote, then it shall be, for all purposes hereof, the Adopted
Allocation Formula binding on all franchises in the Domestic Franchisee Group. If (i) Franchisor's Allocation Formula is not approved
by a 75% Zee Vote and (ii) Franchisor wishes to continue to pursue the New Course Offer, then Franchisor may provide written notice
("Arbitration Notice") to all franchisees in the Domestic Franchisee Group that the selection of an Adopted Allocation Formula is
being submitted for resolution by arbitration. Concurrently, Franchisor shall file a Demand for Arbitration with the appropriate office
of the American Arbitration Association. The arbitration shall be conducted in accordance with the following provisions:
(a) A single arbitrator shall be chosen by mutual agreement between the Franchisor and the Independent Franchisees. If no such mutual
agreement is reached within five days, then the arbitrator shall be selected in accordance with the commercial expedited arbitration
rules of the American Arbitration Association ("AAA"). For purposes of these provisions, any decision or selection made by any group
of Independent Franchisees who, in the
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aggregate, pay more than 50% of the total royalties received by Franchisor from Independent Franchisees in the most recently
completed calendar year, shall be binding on all of the Independent Franchisees. The arbitration proceedings shall be conducted in
Atlanta, GA.
(b) Franchisor shall submit to the arbitrator a copy of Franchisor's Allocation Formula, and any written memorandum in support
thereof, within 21 days after giving the Arbitration Notice to Franchisees.
(c) Any franchisee, excluding those which are Affiliates of Franchisor, may submit to the arbitrator an alternative allocation formula
that is materially different from Franchisor's Allocation Formula ("Alternative Formula") within 20 days after receipt of the Arbitration
Notice. If Franchisor has submitted original data that it did not supply to Franchisee under Section 12.2, then Franchisee may submit
its Alternative Formula within 5 days after receipt of Franchisor's memorandum submitted pursuant to clause b.
(d) All formulas submitted pursuant to Subsections 13.3(b) and (c) may be accompanied by a written memorandum and exhibits,
copies of which shall be provided to all other participating parties.
(e) Within 14 days after the last date by which Franchisee may submit an Alternative Formula pursuant to clause (c), Franchisor and
those franchisees which have submitted Alternative Formulas shall meet with the arbitrator to present oral arguments in favor of their
respective proposals. The arbitrator shall select one allocation formula, from among the Franchisor's Allocation Formula and the
Alternative Formulas, without modification, based upon principles of fairness, equity and sound business practices. The formula so
selected by the arbitrator shall be, for all purposes hereof, the Adopted Allocation Formula binding on Franchisor and all Franchisees
in the Domestic Franchisee Group. The arbitrator's decision shall be final. In any event, Franchisor may elect to postpone or cancel any
Development Purchase.
(f) The fees and costs of filing such arbitration and the fees of the arbitrator shall be split between the parties to the arbitration as
follows: (i) Franchisor shall pay 40% of such fees; and (ii) all parties (including Franchisor) who submit allocation formulas to the
arbitrator pursuant to this Section but whose formulas are not selected shall pay the remainder on a per-capita
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basis. All other expenses and costs related to such proceeding shall be borne by the party incurring them.
2002. EDGAR Online, Inc.
12.5 Following the final determination of the Adopted Allocation Formula, Franchisor shall give Franchisee a notice ("Offer Notice")
extending to Franchisee the exclusive option to market and sell the New Course in the Franchisee's Territory pursuant to the Franchise
Agreement and on condition of compliance with Franchisee's obligations under the terms of the Adopted Allocation Formula. If
Franchisee does not notify Franchisor of its decision to exercise such option within 20 days after receipt of the Offer Notice,
Franchisor may grant the right to market and sell the New Course in Franchisee's Territory to any other party or parties, but only under
a name or mark other than THE PRINCETON REVIEW, any other proprietary name or mark currently or formerly licensed to
Franchisee by Franchisor, or any other name or mark that is confusingly similar to the foregoing.
12.6 The formulas presented under Subsections 12.4(b) and (c) should be prepared in accordance with prudent business practices and
devote attention and discussion to, among others, the following considerations:
(a) Only the portion of the Franchisor's total cost of development attributable to courses that may be run by franchisees (the "Course
Price") shall be allocated for reimbursement by the franchisees. Franchisor's total cost of development may include acquisition costs,
imputed or actual interest, and, in the event that the form of the reimbursement is in a different form than Franchisor's payment of
costs, a factor that accounts for such differential.
(b) The Course Price should be divided into the amount fairly paid to acquire revenues currently realized from existing sales of the
course ("Existing Sales") and any amount fairly paid in anticipation of potential future revenues reasonably projected ("Future Sales").
(c) The Existing Sales portion of the Course Price should be allocated among franchisees according to the proportion of such sales
currently made in their respective Territories. Some part of the Existing Sales portion of the Course Price also may be allocable to the
Franchisor to the extent that imputed royalties from such sales exceed the fair value or cost of services to be provided by Franchisor.
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15
(d) The Future Sales portion of the Course Price should be allocated among the then-existing franchisees according to the proportion
of a reasonable measure of the potential sales anticipated in their respective Territories.
13. Grouping and Subdividing. Notwithstanding anything to the contrary contained in the Franchise Agreement, if (i) Franchisee or an
Affiliate of that Franchisee should now or hereafter be a licensed The Princeton Review franchisee under one or more other Franchise
Agreements ("Other Franchise Agreements") with Franchisor covering other Territories, and
(ii) Franchisee and its Affiliates propose to sell, assign, or transfer all or any portion of their rights under the Franchise Agreement and
the Other Franchise Agreement in a single transaction that has a single purchase price and does not include any non franchise-related
assets, then the following provisions shall apply:
13.1 The provision of Section XI.B of the Franchise Agreement relating to the Franchisor's first right and option to acquire such right
or interest shall apply to the entire transaction only.
13.2 Franchisor shall have no right to require that the portion of such transaction which relate to Franchisee's rights or interests under
the Franchise Agreement be separated out of the transaction with a separate purchase price allocated thereto for purposes of Section
XI.B. of the Franchise Agreement.
13.3 Nothing contained in this Section 13 shall be deemed to be a waiver or relinquishment of Franchisor's right to enforce and receive
separate transfer fee payments due under each individual Franchise Agreement applicable to each separate franchise being sold or
transferred.
IN WITNESS WHEREOF, the parties have executed this Addendum along with two Attachment intended thereby to be legally bound.
THE PRINCETON REVIEW MANAGEMENT CORP.
2002. EDGAR Online, Inc.
By: /s/ John Katzman
----------------------------------
Name: John Katzman
---------------------------------
Title: President
--------------------------------
WITNESS/ATTEST
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16
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: July 15, 1987.
Name of Franchisee(s): Charles F. Emmons & Charles F. Emmons, Jr., Jointly.
Geographical Area of Franchise Agreement: Western Mass.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Charles F. Emmons/ Charles F. Emmons,
Jr.
---------------------------------------------
Printed Name of Officer (if applicable):
Charles F. Emmons & Charles F. Emmons, Jr.
Address for Notice:
P.O. Box 390
Florence, MA 01060
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17
FRANCHISEE JOINDER
TO ADDENDUM
2002. EDGAR Online, Inc.
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: September 1985.
Name of Franchisee(s): The Princeton Review of Orange County, Inc.
Geographical Area of Franchise Agreement: Orange County, CA.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Paul
Kanarek
----------------
Printed Name of Officer (if applicable):
Paul Kanarek
Address for Notice:
2151 Michelson Dr. # 280
Irvine, CA 92715
17
18
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 1986.
Name of Franchisee(s): Princeton Review of Boston, Inc.
Geographical Area of Franchise Agreement: 10 eastern counties of Mass.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Matthew Rosenthal
---------------------
Printed Name of Officer (if
applicable):
Matthew Rosenthal
Address for Notice:
57 Union Street, # 1
Newton, MA 02159
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19
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 5/31/95.
Name of Franchisee(s): Patricia Krebs.
Geographical Area of Franchise Agreement: Wake, Orange, Durham, Guildford and Forsythe counties - NC.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Patricia Krebs
------------------
Printed Name of Officer (if
applicable):
Patricia Krebs
Address for Notice:
1829 E. Franklin St., # 600
Chapel Hill, NC 27514
19
20
FRANCHISEE JOINDER
2002. EDGAR Online, Inc.
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 5/31/95.
Name of Franchisee(s): Eric B. Moore.
Geographical Area of Franchise Agreement: Mecklenburg County, NC.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Eric B. Moore
-----------------
Printed Name of Officer (if
applicable):
Eric B. Moore
Address for Notice:
1206 Providence Road
Charlotte, NC 28207
20
21
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: February 1990.
Name of Franchisee(s): Test Services, Inc., Cleveland.
Geographical Area of Franchise Agreement: Ashland, Cuyahoga, Knox and Medina counties in the State of Ohio.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 North Broadway
Denver, CO 80221
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22
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: February 1998.
Name of Franchisee(s): Test Services, Inc. - Denver.
Geographical Area of Franchise Agreement: Adams, Arapahoe, Boulder, Denver, Douglas, El Paso, Jefferson and Larimer counties in
the State of Colorado.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Michael A.
Bjornstad
------------------------
Printed Name of Officer (if applicable):
Michael A. Bjornstad
Address for Notice:
7350 North Broadway
Denver, CO 80221
2002. EDGAR Online, Inc.
22
23
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: February 1989.
Name of Franchisee(s): Test Services, Inc. - Detroit.
Geographical Area of Franchise Agreement: Oakland, Washtenaw, Wayne, and Ingham counties in State of Michigan.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 North Broadway
Denver, CO 80221
23
24
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: May 1986.
Name of Franchisee(s): Test Servces, Inc. - Connecticut.
Geographical Area of Franchise Agreement: Fairfield, Litchfield, New haven, New London counties in the Connecticut.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 North Broadway
Denver, CO 80221
24
25
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: May 1990.
Name of Franchisee(s): Test Services, Inc. - North Florida.
Geographical Area of Franchise Agreement: Orange, Seminole, Lake, Osceola, Volusia, Leon, Gadsen, Liberty, Wakulla, Jefferson,
Duval, Nassau, Baker, Bradford, Clay, St. Johns, Alachua counties in the State of Florida.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 North Broadway
Denver, CO 80221
25
2002. EDGAR Online, Inc.
26
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 5/11/95.
Name of Franchisee(s): Lecomp Co, Inc./LEC.
Geographical Area of Franchise Agreement: Sourthern California.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Lloyd Eric Cotsen
---------------------
Printed Name of Officer (if
applicable):
Lloyd Eric Cotsen
Address for Notice:
1880 Veteran Avenue (#310)
Los Angeles, CA 90025
26
27
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: May 1986.
Name of Franchisee(s): Test Services, Inc. - South Florida.
Geographical Area of Franchise Agreement: Broward, Dade, De Soto, Hardee, Hillsborough, Manatee, Palm Beach, Pasco, Pinellas,
Polk, Sarasota counties in the State of Florida.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Michael A. Bjornstad
-----------------------
Printed Name of Officer (if
applicable):
Michael A, Bjornstad
Address for Notice:
7350 N. Broadway
Denver, CO 80221
27
28
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement:
Name of Franchisee(s): The Princeton Review of NH and Maine.
Geographical Area of Franchise Agreement: States of New Hampshire and Maine.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Matthew Rosenthal
---------------------
Printed Name of Officer (if
applicable):
Matthew Rosenthal
Address for Notice:
57 Union Street, # 1
Newton, MA 02159
28
29
FRANCHISEE JOINDER
2002. EDGAR Online, Inc.
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 1986.
Name of Franchisee(s): The Princeton Review of New Jersey, Inc.
Geographical Area of Franchise Agreement: Certain counties in the State of New Jersey (north of Mercer County).
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Robert Cohen
----------------
Printed Name of Officer (if
applicable):
Robert Cohen
Address for Notice:
252 Nassau St.
Princeton, NJ 08642
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30
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 7/1/88.
Name of Franchisee(s): T.S. T.S., Inc.
Geographical Area of Franchise Agreement: Originally Jefferson and Orleans county, New Orleans, Louisiana, amended to the entire
State of Louisiana and Dona Ana county in the State of New Mexico.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Rob Case/ Kevin Campbell
----------------------------
Printed Name of Officer (if
applicable):
Rob Case/ Kevin Campbell
Address for Notice:
701 N. Post Oak Rd., # 8
Houston, TX 77024
30
31
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 12/1/94
Name of Franchisee(s): T.S. T.S., Inc.
Geographical Area of Franchise Agreement: State of Oklahoma.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Rob Case/ Kevin
Campbell
----------------------------
Printed Name of Officer (if applicable):
Rob Case/ Kevin Campbell
Address for Notice:
701 N. Oak Post Rd., # 8
Houston, TX 77024
2002. EDGAR Online, Inc.
31
32
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 7/1/87.
Name of Franchisee(s): T.S.T.S., Inc.
Geographical Area of Franchise Agreement: State of Arizona.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Rob Case/ Kevin Campbell
----------------------------
Printed Name of Officer (if
applicable):
Rob Case/ Kevin Campbell
Address for Notice:
701 N. Oak Post Rd., # 8
Houston, TX 77024
32
33
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 1986.
Name of Franchisee(s): The Princeton Review of Pittsburgh, Inc.
Geographical Area of Franchise Agreement: Western PA.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Audrey Olmer
----------------
Printed Name of Officer (if
applicable):
Audrey Olmer
Address for Notice:
P.O.Box 81123
Pittsburgh, PA 15217
33
34
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 6, 1995.
Name of Franchisee(s): TPR Puerto Rico/ Karen Kearns.
Geographical Area of Franchise Agreement: Puerto Rico.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Karen Kearns
----------------
Printed Name of Officer (if
applicable):
Karen Kearns
Address for Notice:
11 Pacific Pl.
Santuree, P.R. 00911
34
35
2002. EDGAR Online, Inc.
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 1/87.
Name of Franchisee(s): The Princeton Review of RI, Inc.
Geographical Area of Franchise Agreement: Rhode Island.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Paul M. Stouber
-------------------
Printed Name of Officer (if
applicable):
Paul M. Stouber
Address for Notice:
125 Thayer St.
Providence, RI 02906
35
36
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 1, 1986.
Name of Franchisee(s): The Princeton Review of St. Louis, Inc.
Geographical Area of Franchise Agreement: Missouri County and City of St. Louis.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ William Lindsley
--------------------
Printed Name of Officer (if
applicable):
William Lindsley
Address for Notice:
9666 Olive Boulevard, Suite 140
St. Louis, Missouri 63132-3019
36
37
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: June 1989.
Name of Franchisee(s): Test Services, Inc. - San Diego.
Geographical Area of Franchise Agreement: San Diego county in the State of California.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 N. Broadway
Denver, CO 80221
37
38
FRANCHISEE JOINDER
TO ADDENDUM
2002. EDGAR Online, Inc.
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: September 1985.
Name of Franchisee(s): The Princeton Review - Peninsula, Inc.
Geographical Area of Franchise Agreement: San Mateo and Santa Clara counties (California).
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Pamela N. Hirsch
--------------------
Printed Name of Officer (if
applicable):
Pamela N. Hirsch
Address for Notice:
6489 Camden Ave., # 106
San Jose, CA 95120
38
39
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: May 21, 1995.
Name of Franchisee(s): The Kafiristan Blokes.
Geographical Area of Franchise Agreement: Tennessee
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ F. Wade McKinney/Stephen A. Leake
-------------------------------------
Printed Name of Officer (if
applicable):
F. Wade McKinney/Stephen A. Leake
Address for Notice:
The Princeton Review
3508 Belmont Blvd.
Nashville, TN 37215
39
40
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: Sept. 15, 1986.
Name of Franchisee(s): T.S.T.S., Inc.
Geographical Area of Franchise Agreement: All counties in Texas.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Rob Case/ Kevin Campbell
----------------------------
Printed Name of Officer (if
applicable):
Rob Case/ Kevin Campbell
Address for Notice:
701 N. Oak Post Rd., # 8
Houston, TX 70024
2002. EDGAR Online, Inc.
40
41
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: 5/31/95.
Name of Franchisee(s): Elyane Harney (Utah).
Geographical Area of Franchise Agreement: State of Utah .
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Elyane Harney
-----------------
Printed Name of Officer (if
applicable):
Elyane Harney
Address for Notice:
The Princeton Review
8 E. Broadway, Suite 212
Salt Lake City, UT 84111
41
42
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: September 1986.
Name of Franchisee(s): Test Services, Inc. - Westchester.
Geographical Area of Franchise Agreement: Dutchess, Putnam, Rockland, Ulster, Westchester counties in New York.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Michael A. Bjornstad
------------------------
Printed Name of Officer (if
applicable):
Michael A. Bjornstad
Address for Notice:
7350 N. Broadway
Denver, CO 80221
42
43
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: October 1986.
Name of Franchisee(s): The Princeton Review of Northern California, Inc.
Geographical Area of Franchise Agreement: California: counties of San Francisco, Marin, Alaveda, Contra and Costa.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ John Katzman
----------------
Printed Name of Officer (if
applicable):
John Katzman
Address for Notice:
2315 Broadway
New York
43
44
FRANCHISEE JOINDER
TO ADDENDUM
2002. EDGAR Online, Inc.
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: December 30, 1994.
Name of Franchisee(s): The Princeton Review of Vermont, Inc.
Geographical Area of Franchise Agreement: certain counties in Vermont.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
/s/ Matthew
Rosenthal
---------------------
Printed Name of Officer (if applicable):
Matthew Rosenthal
Address for Notice:
57 Union St., # 1
Newton, MA 02159
44
45
FRANCHISEE JOINDER
TO ADDENDUM
By executing in the space provided below, the Person identified below acknowledges having received and read, and agrees to become
a party to, and be bound by, the Addendum to Franchise Agreement dated effective as of May 31, 1995 which amends and modifies
the Franchise Agreement with The Princeton Review Management Corp. described below.
DESCRIPTION OF FRANCHISE AGREEMENT:
Date of Franchise Agreement: March 1, 1995.
Name of Franchisee(s): The Princeton Review of Hawaii, Inc.
Geographical Area of Franchise Agreement: State of Hawaii.
Signature of Franchisee(s) or Authorized Officer of Franchisee(s):
2002. EDGAR Online, Inc.
/s/ Matthew Rosenthal
---------------------
Printed Name of Officer (if
applicable):
Matthew Rosenthal
Address for Notice:
57 Union St., # 1
Newton, MA 02159
45
46
ATTACHMENT 1: STATEMENT OF INTER-
FRANCHISE TRANSFER POLICY
This Policy is designed to standardize the terns for transferring students between TPR franchises. In all cases, "Originator" refers to
the franchise that enrolled the student first. "Receiver" refers to the franchise to which the student wishes to transfer. In cases it is not
clear who enrolled the student first, the franchise that collected money first is the Originator.
In all cases the Originator is responsible for collections from the student. It may prevent a student from transferring to another
franchise (by notifying that franchise) if it has not received payment, but once a student has transferred, the Originator must pay the
Receiver regardless of whether the student has paid the Originator.
For the purpose of calculating royalty-service fees payable under the Franchise Agreement, payments made to a Receiver shall be
deducted from the gross receipts of the Originator, and payments received from the Originator shall be included the gross receipts of
the Receiver.
The Receiver is required to accept transfer students at such times as it is accepting full paying students or students residing within its
Territory. Should all of its course locations be filled, it must notify the Franchisor before refusing the student.
Any transfer will require communication among the directors involved. The Originator and the student are responsible for giving the
Receiver at least 1 weeks' notice. It is recommended that all arrangements be made in further in advance if possible.
The purpose of this transfer agreement is to make our internal arrangements as invisible as possible to the customer. Offices should
make the transfer policy as smooth as possible for the customer and should refrain from discussing internal financial arrangements with
them.
For the purposes of any calculation required hereunder, all money needed to be paid shall be rounded to the dollar.
1. Fall Refreshers for Summer courses:
1.1 Description of Transfer: Many students take TPR courses during the Summer. However, the actual exam is not given during the
Summer. Therefore, TPR offers a brief refresher program before the Fall exams for students that took a TPR course during the
Summer and wish to brush up on their skills prior to the actual exam. Problems arise when students wish to take this short brush-up
session at another course location.
1.2 Policy: Should a Summer student refresh in the Fall at another franchise, the Originator shall pay the Receiver a brush-up fee of
$50 regardless of the service provided to the transfer student by the Receiver. If the cost of the original program is under $195, the
brush-up fee shall be reduced by the ratio of the cost of the
47
2002. EDGAR Online, Inc.
program to $195. If the cost of the program is more than $795, the brush-up fee shall be increased by the ratio of the cost of the
program to $795.
The Receiver is obligated to provide the transfer student with the same refresher it is providing its own Summer students. In the
absence of a Summer refresher, the Receiver may provide the student with some part of the regular Fall course.
1.3 If a student takes a Summer refresher at another site, the Originator is responsible for any future refresher work done by that
student.
1.4 Key Points: (a) Receiver should have no obligation to collect any money directly from the student. (b) Receiver shall provide
student with all materials necessary to complete refresher program at no additional charge to Originator. (c) Each franchisee will
distribute to students attending its Summer course a listing of franchises conducting Summer refreshers. This list will be made
available by Franchisor. (d) The list of franchises will include a form, to be filled in by the student, to ease the billing process for the
Receiver. (e) Should a student wish to take a refresher at another franchise, the student must contact the Receiver one week prior to the
start of the refresher program or Receiver is not obligated to accept the student.
2. In-Course Transfers:
2.1 Description of Transfer: These transfers occur when a student enrolls in a course with a given franchise and desires to take part of
the course with another franchise. This often happens with college students who start the course where they go to college and finish the
course where their parents live.
2.2 Policy: If a student transfers to another franchise before the first scheduled instructional session of a course at the Originator, and
does not plan to return, the Originator will keep a Marketing Fee of $50 and forward the balance of the course fee collected to the
Receiver. The student will then receive the entire course from the Receiver. In this event only, the Receiver may be responsible for
collecting the remainder of any course fee not paid. If this is the case, the Originator must make this fact clear to the Receiver. If the
cost of the program is under $195, the Marketing Fee shall be reduced by the ratio of the cost of the program to $195. If the cost of the
program is more than $795, the Marketing Fee shall be increased by the ratio of the cost of the program to $795.
2.3 If a student transfers after the first scheduled instructional session of the Originator's course, The Originator will retain a Materials
Fee of $150.00 and pay the Receiver a pro-rated portion of the remaining balance. This portion will be computed using the number of
instructional sessions (diagnostic exams are excluded) that the student will attend at the Receiver divided by the total number of
instructional sessions in the Receiver's course. If the cost of the program is under $495, the Materials Fee shall be reduced by the ratio
of the cost of the program to $495. If the cost of the
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program is more than $795, the Materials Fee shall be increased by the ratio of the cost of the program to $795.
2.4 If a student is required to take the first instruction session at the Receiver's location, and will complete the course at the
Originator's location, the Originator shall pay the Receiving site a Day-One Fee of $100.00 plus a pro-rated portion of the Originator's
course fee minus both the Day-One Fee and a Marketing Fee of $50. This portion will be computed using the number of instructional
sessions (diagnostic exams are excluded) that the student will attend at the Receiver divided by the total number of instructional
sessions in the Receiver's course. In this situation, the Receiver is responsible for providing all course materials (excluding diagnostics
and misc. letters) that are necessary to complete the program. If the cost of the program is under $495, the Day-One fee shall be
reduced by the ratio of the cost of the program to $495. If the cost of the program is more than $795, the Day-One Fee shall be
increased by the ratio of the cost of the program to $795. Depending on the price of the program, the Marketing Fee referred to in this
paragraph may be increased or decreased as described in 2.2.
2.5 Key Points: The Receiver shall be responsible for providing the student with the materials needed to complete the course provided
at their location. The student will not be charged any additional fees. Should a student complete more than 50% of the instructional
sessions at the Receiver's site, the Receiver shall be obligated to provide refresher sessions at their location to the student at no
additional charge to the Originator. Should the student want to take a refresher program at another location, the Originating site shall
be obligated to pay for the refresher program as per section 3, unless the student completed more than 75% of the instructional
sessions at the Receiver's site and in that event the Receiver shall pay for the refresher. Also, the Receiver may collect for only one of
the above paragraphs.
3. Guarantee Fulfillment
2002. EDGAR Online, Inc.
3.1 Description of Transfer: Each TPR franchise makes some guarantees in its promotional literature about continuing to work with
students should their scores not improve to their satisfaction. The guarantee is contingent upon the student having completed their TPR
course and taken the actual exam. The term of the guarantee is one year from enrollment. This policy governs the case where a student
seeks guarantee fulfillment at a franchise other than the one he/she originally took the TPR course.
3.2 Policy: A student will receive a guarantee fulfillment at another franchise under one of three circumstances. (a) If the student takes
a refresher course that consists of fewer than 10 instructional ours, the Originator will pay the Receiver $50. (b) If the student takes a
refresher course that consists of 10 or more instructional hours, the Originator will pay the Receiver $150.00. (c) If the student takes
the entire course, the Originator will pay the Receiver $250.00. If the cost of the original program the
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49
student took is under $195, the fee referred to in (a) shall be reduced by the ratio of the cost of the original program to $195. If the cost
of the original program the student took is under $495, the fee referred to in (b) and (c) shall be reduced by the ratio of the cost of the
original program to $495. If the cost of the original program is more than $795, the fee referred to in (a), (b), and (c) shall be increased
by the ratio of the cost of the original program to $795.
3.3 Key Points: In each case, course materials will be provided by Receiver. Every effort should be taken to minimize the cost of the
refresher program to the Originator. However, the Originator will be obligated to pay for whatever refresher option mentioned above
the Receiver is offering to its own guarantee fulfillment students. Should the Receiver not offer a refresher program, the Originator
shall be required to pay for option (c). The Receiver must check with the Originating site to confirm that the student is in fact eligible
for a guarantee fulfillment program.
4. Package Pricing
4.1 Description of Transfer: In the course of transfers/guarantee fulfillments referred to in paragraphs 1, 2, and 3, the purchase price of
various courses may not be clear because they are purchased as part of a package. If a student purchases two or more programs from a
site and receives a discount on any of the programs, the programs will as a group be treated as a package for the purposes of paragraph
4.2 and 4.3 below.
4.2 Policy: If a student signs up for a package program, the "reduced" purchase price for each separate program shall be the full list
price of that program reduced by the ratio of the total (discounted) package fee to the full price had each part of the package been
purchased separately. If a student signs up for a package with the Originator and then takes an entire part of the package with the
Receiver, the Originator shall pay the Receiver the entire "reduced" price of the course taken with the Receiver.
4.3 Policy: If the student takes one entire part of a package with the Originator and then part of the other with a Receiver, then the
Originator shall use the "reduced" price to compute the amount due to be paid under 2.3 or 2.4, except that the Originator shall keep
no additional Marketing Fee unless the total amount kept by the Originator for the first course is less than the entire Marketing Fee
under 2.3 or 2.4. For purposes of 2.3 the Marketing Fee shall be 1/3 of the Materials Fee.
5. Local Promotional Discounts
5.1 Description of Transfer: Franchises sometimes offer local promotional discounts to prospects or students in their areas. This policy
governs the redemption of promotional discounts at a franchise other than the franchise issuing the promotion.
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5.2 Policy: All franchises shall accept the promotional discount offers extended by other franchises unless the discount specifically
limits the discount with regard to time or geography in a way that invalidates it at the time or place it is being used. Receiving
franchises shall accept these promotional discounts and bill the Originating franchise for 50% of the first $100 of the discount plus
100% of the amount exceeding $100.
6. Tutoring
6.1 Description of Transfer: Each TPR office offers private tutoring in either a hourly format, package format, or both. A student may
start tutoring in one place and finish in another, or actually receive tutoring through two franchises at the same time.
6.2 Policy: All TPR franchisees work tutoring differently and a cohesive policy that anticipates even most eventualities is impossible.
In general, if their is an up front payment, it should be apportioned 1/2 to the office that provides materials, 1/6 to the office that first
2002. EDGAR Online, Inc.
enrolled the student as a Marketing Fee, and 1/6 to each office as a tutoring Set-up fee. Hourly payments should in general be divided
based on the number of hours of tutoring that are done in each location. However, because prices and plans differ wildly, arrangements
should be made in advance, and offices have the right to charge different amounts to the same student (e.g. a student splits tutoring
between Westchester and NY and is charged $55/hour for tutoring done in Westchester, and $75/hour for tutoring done in NY.)
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1
EXHIBIT 10.42
FORMATION AGREEMENT
by and among
THE PRINCETON REVIEW
PUBLISHING COMPANY, L.L.C.
and
THE PRINCETON REVIEW
PUBLISHING CO., INC.
and
THE PRINCETON REVIEW
MANAGEMENT CORP.
and
THE INDEPENDENT PRINCETON
REVIEW FRANCHISEES
2
LIST OF SCHEDULES TO AGREEMENT
2002. EDGAR Online, Inc.
Schedule 1.1(b) - Contracts
Schedule 1.1(t) - Governmental Approvals
Schedule 1.1(w) - Student Access Contracts
Schedule 4.1(c) - Approvals and Notices Required by TPRM and Old PUB;
Conflicts with Instruments
Schedule 4.1(d) - Title Exceptions
Schedule 4.1(e) - Legal Proceedings
Schedule 4.1(f) - Defects in Contracts
Schedule 4.1(g)(i) - Trademark, Trade Name or Copyright Registrations
Schedule 4.1(g)(ii) - Applicable Marks Filing
Schedule 4.1(i) - Defects in Governmental Approvals
Schedule 4.1(j) - Conduct of Business and Compliance with Regulatory
and
Contractual Requirements
Schedule 4.1(n) - Rights Reservations
Schedule 4.1(p) - Labor Matters
Schedule 4.1(r) - Material Assets
Schedule 4.1(s) - Financial Information
Schedule 4.1(v) - Affiliate Transactions
2
3
LIST OF EXHIBITS TO AGREEMENT
Exhibit A - Franchisees
Exhibit B - Certificate of
Formation
3
4
FORMATION AGREEMENT
FORMATION AGREEMENT, dated effective as of May 31, 1995 ("Effective Date"), by and among (i) THE PRINCETON REVIEW
PUBLISHING COMPANY, L.L.C., a Delaware limited liability company (the "Company"), (ii) THE PRINCETON REVIEW
PUBLISHING CO., INC., a New York corporation ("Old PUB"), (iii) THE PRINCETON REVIEW MANAGEMENT CORP., a
Delaware corporation ("TPRM"), and (iv) the persons identified as "Franchisees" on Exhibit "A" attached hereto (the "Franchisees").
RECITALS
A. TPRM owns all right, title and interest in and to the use of the trade names, trademarks and service marks THE PRINCETON
REVIEW, STUDENT ACCESS and REVIEWARE (such trade names, trademarks and service marks, together with any and all trade
2002. EDGAR Online, Inc.
names, trademarks and service marks which are now or hereafter owned or used by TPRM, being herein collectively called the
"Applicable Marks").
B. In connection with the exploitation of the Applicable Marks, TPRM is engaged in developing, marketing and servicing test
preparation businesses through franchised outlets pursuant to written franchise agreements ("Franchise Agreements") with independent
franchisees and franchisees affiliated with TPRM. The collection of business activities engaged in and offered through TPRM's
franchisee network pursuant to the terms of the Franchise Agreements is hereinafter referred to as the "Test Preparation Business".
C. TPRM has also entered into a License Agreement of even date herewith with Old Pub (herein called the "TPRM License
Agreement"), pursuant to which it has granted Old Pub the exclusive rights to use and exploit the Applicable Marks in the conduct of
the Publishing Business. As used herein, the term "Publishing Business" shall mean and refer to (A) the businesses previously or
currently engaged in by Old PUB and (B) any and all other businesses (except for the Test Preparation Business), whether now or
hereafter conducted, which (i) relate to, involve or are competitive with the TPR Method or (ii) use the Applicable Marks in any part
of the conducting thereof. The "Publishing Business" shall include, without limitation, the business of creating, publishing and
marketing books, videotapes, audiotapes, computer software and other products or services. As used herein, the term "TPR Method"
shall mean instruction for academic
4
5
subjects, computer usage, languages, negotiation, financial aid, test preparation or admissions advice for actual or prospective grade
school, high school, college, graduate or professional school students or adults.
D. Pursuant to its Franchise Agreement with TPRM, each Franchisee currently has certain territorial protection rights that may
preclude TPRM and Old PUB from conducting a portion of the Publishing Business in such Franchisee's franchise territory.
E. The parties desire to enter into this Formation Agreement to provide for the formation of the Company and to have the Company
conduct the Publishing Business. In connection with such formation, (i) Old PUB shall contribute the Publishing Business to the
Company, in exchange for the issuance to Old PUB of 8,238.12 units of voting membership interests (herein collectively the "Old
PUB Units") and (ii) each Franchisee shall contribute the Territorial Right to the Company in exchange for the number of units of
non-voting membership interests set forth opposite each such Franchisee's name on Exhibit "A" (collectively, the "Franchisees Units").
As used herein, the term "Territorial Right" shall mean, with respect to each Franchisee, its agreement hereby made by such Franchisee
for the benefit of the Company that the Company may, notwithstanding the provisions of such Franchisee's Franchise or any other
Agreement, pursue the Publishing Business in such Franchisee's franchised territory (subject to the limitations described herein).
5
6
AGREEMENT
In consideration of the premises and of the respective representations, warranties, covenants, agreements and conditions of the parties
contained herein, it is hereby agreed as follows:
1. Contribution by Old PUB; Assumption of Certain Liabilities.
1.1. Transfer of Assets. On the terms and subject to the conditions set forth in this Agreement, effective as of the Effective Date, Old
PUB shall convey, assign, grant, transfer and deliver to the Company, as a capital contribution in exchange for the Old PUB Units, all
of the OLD PUB assets, rights and properties however owned as of the Effective Date and used directly or indirectly in the conduct of
the Publishing Business or otherwise associated with or related thereto (the "Assets"), including without limitation:
(a) All computer programs, in object and source code form, flow charts, layouts, user's manuals, operator's manuals and other
documentation in human readable or machine readable form developed by or for Old PUB in connection with the conduct of the
Publishing Business, and all copyrights, trade secrets or know-how related thereto (the "Software");
(b) All right, title and interest of Old PUB in, to and under all contracts, license agreements, leases and other arrangements which are
related to the conduct of the Publishing Business, including but not limited to the TPRM License Agreement, publishing contracts,
manuscript and editorial/consulting agreements, advertising agreements and advertising sales representative agreements, distribution
agreements, development and marketing agreements, endorsement contracts, and those agreements listed on Schedule
1.1(b) hereto (collectively, the "Contracts");
(c) All circulation records relating to any Published Product (as defined in Section 2.3 hereof) including, but not limited to specific
2002. EDGAR Online, Inc.
names of all buyers, addressees, zip codes and prices paid;
(d) All promotional materials relating to any Published Product, including any and all plates and camera-ready copy, new promotion
letters, flyers, reply cards and any other printed matter in Old PUB's possession or control relating to the promotion of any Published
Product;
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(e) All promotion and marketing records relating to any Published Product or the Publishing Business, including any and all records of
mailing lists used, packages used, dates mailed, rates of return, sample mailing pieces, space advertising and the like;
(f) All records of inquiries and prospects of the Publishing Business, including, without limitation, any and all correspondence,
directories, attendance lists or labels;
(g) All subscriber correspondence files, including, without limitation, any and all correspondence regarding subscriptions, refunds, and
editorial matters relating to any Published Product;
(h) All back issues or other inventories of any Published Product which Old PUB may now possess;
(i) All existing records in the possession or control of Old PUB relating to advertising sales for any Published Product or the
Publishing Business, including, but not limited to (i) copies of all past, present and pending advertising sales contracts and all
advertising sales representative agreements; (ii) all lists of past, present or prospective advertisers; (iii) any and all material which may
provide guidance to the advertising sales representatives concerning the sale of advertising for the Publishing Business; and (iv) for
each advertising sales account, a listing of the company name, address, phone number, contact history and sales history;
(j) All of Old PUB's rights to use any and all editorial and promotional copy previously written or developed by or for Old PUB for the
Publishing Business, including any and all rights to promotional copy, direct mail packages, renewal packages and media kits;
(k) All rights of Old PUB to use (whether as owner, licensee or otherwise) all mechanicals, photos, logos and other art work which
may be utilized in or developed for or in connection with the Publishing Business, whether or not in Old PUB's physical possession;
(l) All right, title and interest of Old PUB in, to and under any oral or written bid, quotation or proposal relating to the sale or licensing
of any Published Product;
(m) All trade secrets, technical knowledge and other intellectual property (including all copyright registrations and all other copyrights
or
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copyrightable work owned by Old PUB) used by Old PUB in connection with the conduct of the Publishing Business other than
TPRM's interest in the Applicable Marks (the "Intellectual Property");
(n) All rights, claims or choses in action of Old PUB against any person relating to any other Asset;
(o) All rights of Old PUB in tangible personal property associated with the Publishing Business and all warranties and guarantees, if
any, express or implied, existing for the benefit of Old PUB in connection with such tangible property to the extent assignable;
(p) The accounts receivable of Old PUB as of the Effective Date (the "Accounts Receivable");
(q) All personnel files and other materials relating to any employees of Old PUB who are to be offered employment by the Company;
(r) All records of compliance and noncompliance with the laws, regulations, ordinances and orders applicable to the Publishing
Business;
(s) All deposits, prepayments and prepaid expenses relating to the operations of the Publishing Business by Old PUB;
(t) The rights of Old PUB under all licenses, permits, franchises issued by any federal, state, provincial or municipal authority relating
to conduct of the Publishing Business ("Governmental Approvals"), including without limitation, those listed on Schedule 1.1(t)
hereto, to the extent that such Governmental Approvals are transferable;
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(u) All goodwill of Old PUB relating to the Assets and the Publishing Business as a going concern other than goodwill attributable to
the Applicable Marks which shall inure solely to the benefit of TPRM;
(v) All cash and cash equivalent or similar types of investments, such as certificates of deposit, treasury bills, and other marketable
securities, including any cash contributed to Old PUB pursuant to
Section 5.3(e);
(w) All contracts and membership lists and other properties owned by Student Access, Ltd., a Delaware corporation ("Student
Access"), including those agreements listed on Schedule 1.1(w) hereto;
(x) To the extent not otherwise covered, the originals of all information, files, records, data and contracts related to any of the other
Assets;
(y) Claims for refunds of taxes and other governmental charges; and
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(z) The financial records, tax records and corporate policies and procedures manuals of Old PUB.
1.2. Instruments of Conveyance and Transfer. Effective as of the Effective Date, Old PUB shall deliver or cause to be delivered to the
Company the following:
(a) Assignments and bills of sale transferring to the Company good and valid title to the Assets, free and clear of all liens, claims and
encumbrances except as shown on Schedule 4.1(d) hereto or as otherwise specifically permitted pursuant to the terms of this
Agreement, and all in a form reasonably satisfactory to the Company and the Franchisees;
(b) To the extent available, originals of all of the contracts, agreements, commitments, books, records, files and other data that are
included in the Assets; and
(c) Such other instruments of transfer and assignment in respect of the Assets as the Company and the Franchisees shall reasonably
require pursuant to written notice given no less than twenty (20) days prior to the Effective Date and as shall be consistent with the
terms and provisions of this Agreement.
Prior to the Closing, Old PUB will take such steps as may be requisite or appropriate so that no later than the close of business on the
Effective Date, the Company to the extent reasonably practicable will be placed in actual possession and control of all of the Assets.
Without limiting the generality of the foregoing, Old PUB agrees it shall use its reasonable best efforts to obtain all material consents
and approvals of third parties required for the transfer of the Assets contemplated herein.
1.3. Further Assurances. From time to time after the Closing, Old PUB will execute and deliver, or cause to be executed and delivered,
without further consideration, such other instruments of conveyance, assignment, transfer and delivery and will take such other actions
as the Company and the Franchisees may reasonably request in order to more effectively consummate the transactions contemplated by
this Agreement and to transfer, convey, assign and deliver to the Company, and to place the Company in possession and control of any
of the Assets, or to enable the Company to exercise and enjoy all rights and benefits of Old PUB with respect thereto.
1.4. Assumed Liabilities. The Company will (i) assume and pay, perform, fulfill and discharge all asserted and unasserted obligations
of Old PUB as of the Effective
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Date, and (ii) pay, perform, fulfill and discharge all obligations of Student Access which are due and payable (or performable)
subsequent to the Effective Date under the contracts of Student Access listed on Schedule 1.1(w) (the "Assumed Liabilities"). The
obligations of the Company with respect to the Assumed Liabilities are subject to whatever rights the Company may have under this
Agreement or otherwise for a breach by Old PUB or TPRM of any representation, warranty, covenant or agreement contained in this
Agreement.
1.5. Special TPRM Covenant and Agreement. TPRM hereby acknowledges and agrees that it and Old PUB are both controlled by
John S. Katzman. TPRM further acknowledges and agrees that without the obligations undertaken by TPRM under the terms of this
Agreement, the Franchisees would not be willing to enter into this Agreement. TPRM further covenants and agrees that it will cause
2002. EDGAR Online, Inc.
Old PUB to timely and properly perform and comply with all of Old PUB's obligations hereunder to the Company and/or Franchisees,
and TPRM hereby unconditionally guarantees all such obligations.
2. Contribution by Princeton Review Franchisees. On the terms and subject to the conditions set forth in this Agreement, effective as
of the Effective Date, each of the Franchisees does hereby convey, assign, grant, transfer and deliver to the Company, as a contribution
to the capital of the Company and in exchange for the number of Franchisees Units set forth opposite such Franchisee's name on
Exhibit "A" attached hereto, the Territorial Right by agreeing with the Company, for the Company's sole and exclusive benefit, as
follows:
2.1. Subject to the provisions of Section 2.4 hereof, the Company shall have the right, notwithstanding anything to the contrary
contained in such Franchisee's Franchise Agreement with TPRM or any other agreement or understanding made prior to the Closing
Date, to market in Franchisee's franchised territory any Published Product (herein defined) using the Applicable Marks or any other
names and marks, whether created prior or subsequent to the Effective Date.
2.2. As used herein the term "Published Product" shall mean any product which is sold, leased or otherwise provided to customers and
which does not include, as any part thereof, (i) face-to-face instruction of a customer or (ii) instruction delivered through real time (i.e.
not pre-recorded or delayed transmissions) interactive technology that simulates a classroom or tutoring experience.
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2.3. As used herein the term "Test Preparation Product" shall mean any kind of Published Product which is sold, leased or otherwise
provided to customers and which primarily addresses a college or graduate school admissions test.
(a) If two or more Test Preparation Products are marketed as a single item, that item will itself be considered a Test Preparation
Product, whose suggested retail price, if it does not have its own, shall be the sum of the suggested retail prices of its components. Two
or more Test Preparation Products shall be considered to be "marketed as a single item" for purposes hereof, if such Test Preparation
Products are physically packaged together, offered for sale with a single price or with a discount for buying all of them; or advertised
or marketed as component parts of a complete set.
(b) Any two or more Test Preparation Products (after application of clause (a) above) which (i) primarily address the same admissions
test, (ii) are in the same media (examples of types of "media" for these purposes include Macintosh compatible disks, MS/DOS
compatible disks, printed materials and videotapes); and (iii) are not themselves components of other Test Preparation Products in the
same media, shall be deemed to be one Test Preparation Product with one suggested retail price equal to the sum of the suggested
retail prices of all the separate Test Preparation Products. For purposes of clause (ii) in the immediately preceding sentence, a Test
Preparation Product which is composed of separate items in different media shall be deemed to be in the media of the most expensive
component item of such Test Preparation Product.
2.4. Notwithstanding the provisions of Section 2.1 hereof, the following provisions shall apply:
(a) The Company shall not have the right to market in Franchisee's franchised territory any Test Preparation Product which has a
suggested retail price in excess of the then Maximum Allowable Price, unless the marketing of such Test Preparation Product is
approved by an 85% Zee Vote (as that term is defined and used in the various Addenda entered into between TPRM and each of the
Franchisees of even date herewith). With respect to any structured curriculum taught on-line (e.g. through a computer or video
network) which is sold at an hourly rate, the hourly selling price
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of such curriculum shall be deemed to equal, for purposes of this Section 2.4(a), the greater of (i) 18.75% of the then Maximum
Allowable Price; or (ii) the actual retail hourly selling price thereof.
(b) The Company shall not (i) encourage any school, organization or other person to use any Test Preparation Product for the
conducting of a class or other course for any group of students; or (ii) intentionally create confusion that any Test Preparation Product
is the same product as any course taught by the Franchisees pursuant to their respective Franchise Agreements with TPRM.
(c) The Territorial Right is not assignable or transferable to any person or entity other than a person or entity that is simultaneously
acquiring all of the Company's rights under the TPRM License Agreement.
2.5. As used herein, the term "Maximum Allowable Price" shall mean, until December 31, 1995, $80.00. In order to reflect subsequent
changes in the average cost of products similar to Test Preparation Products, the parties agree that the Maximum Allowable Price shall
2002. EDGAR Online, Inc.
be adjusted on December 31, 1995 and each December 31 thereafter, by a percentage amount equal to the average percentage change
in the Applicable Indices (herein defined) from the December of the previous year. As used herein, the term "Applicable Indices" shall
mean and refer to the following:
(a) The "Information Processing Equipment" Index published monthly by the Bureau of Labor Statistics as one of the expenditure
categories of the Consumer Price Index for all Urban Consumers ("CPI");
(b) The "School Books and Supplies" Index published monthly by the Bureau of Labor Statistics as one of the expenditure categories
of the CPI; and
(c) The "Tuition and Other School Fees" Index published monthly by the Bureau of Labor Statistics as one of the expenditure
categories of the CPI.
2.6. The Franchisees hereby withhold any permission granted above for the Company or its Affiliates to exploit electronically the
following titles until there is an agreement between TPRM, John Katzman, David Owen and Adam Robinson, and the Company in a
form satisfactory to John Katzman, modifying the terms of all prior agreements between the parties with respect to the exploitation of
such titles: "Cracking the SAT", "Cracking the GMAT", "Cracking the GRE" and "Cracking the LSAT".
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3. Closing. The closing with respect to the transactions provided for in this Agreement (the "Closing") is taking place effective as of
the Effective Date.
4. Representations and Warranties.
4.1. Representations and Warranties of TPRM and Old PUB. TPRM and Old PUB represent and warrant, jointly and severally, to the
Company and the Franchisees, the following:
(a) Due Organization; Good Standing and Power. Each of TPRM and Old PUB is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York. Old PUB has all corporate power and authority to own the Assets and to
conduct the Publishing Business as now conducted. Each of Old PUB and TPRM has all requisite power and authority to enter into
this Agreement and each other agreement, conveyance and assignment provided for or contemplated herein (the "Other Agreements")
and to perform their respective obligations hereunder and thereunder.
(b) Authorization and Validity of Agreement. The execution, delivery and performance of this Agreement and the Other Agreements
by each of Old PUB and TPRM and the consummation by each such party of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of each such party. No other corporate or shareholder action is
necessary for the authorization, execution, delivery and performance by Old PUB or TPRM of this Agreement or any Other
Agreement and the consummation by them of the transactions contemplated hereby and thereby. This Agreement and the Other
Agreements have been duly executed and delivered by Old PUB and TPRM and constitute the legal, valid and binding obligations of
Old PUB and TPRM, enforceable against such parties in accordance with their terms.
(c) No Approvals or Notices Required; No Conflict with Instruments. Except as described in Schedule 4.1(c) hereto, the execution,
delivery and performance of this Agreement or any Other Agreement by Old PUB and TPRM and the consummation by it of the
transactions contemplated hereby and thereby (i) will not violate in any material respect (with or
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without the giving of notice or the lapse of time or both) or require any consent, approval, filing or notice under, any provision of any
law, rule or regulation, court order, judgment or decree applicable to Old PUB or TPRM and (ii) will not in any material respect
conflict with, or result in the breach or termination of any material provision of, or constitute a material default under, or require any
consent or approval, or result in the acceleration of the performance of the obligations of Old PUB or TPRM under, or result in the
creation of a lien, charge or encumbrance upon a portion of the Assets pursuant to, the Articles of Incorporation or Bylaws of Old
PUB or TPRM, or any indenture, mortgage, deed of trust, lease, licensing agreement, or material contract, instrument or Other
Agreement to which either such entity is a party or by which it or any of the Assets are bound or affected.
(d) Title to Properties; Absence of Liens and Encumbrances. Old PUB owns and will transfer to the Company as of the Effective Date,
good and valid title to all of the Assets, free and clear of all claims, liens, security interests, charges, leases, encumbrances, licenses or
sublicenses and other restrictions of any kind and nature, except as specified on Schedule 4.1(d) hereto or the encumbrances and
2002. EDGAR Online, Inc.
restrictions set forth in the contracts disclosed pursuant to this Agreement, or which would not otherwise materially interfere with the
use and enjoyment of such Assets by the Company.
(e) Legal Proceedings. Except as described in Schedule
4.1(e) hereto, (i) there is no litigation, proceeding, claim or governmental investigation pending or, to the knowledge of Old PUB and
TPRM, threatened seeking relief or damages which, if granted, would materially and adversely affect Old PUB, or the ownership, use
or operation of any of the Assets or the results of operations of the Publishing Business and (ii) Old PUB has not been charged with
any violation of or, to the knowledge of Old PUB and TPRM, threatened with a charge or violation of, nor are Old PUB or TPRM
aware of any facts or circumstances that, if discovered by third parties, could give rise to a charge or a violation of, any provision of
law or regulation which charge or violation, if determined adversely to Old PUB, would materially and adversely affect the ownership,
use or
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operation of any of the Assets or the results of operations of the Publishing Business.
(f) Contracts and Commitments. Old PUB and Student Access are not parties to any material Contract relating to the Publishing
Business other than as listed or described on Schedule 1.1(b) or Schedule 1.1(w). Except as may be disclosed on Schedule 4.1(f)
hereto, each material Contract is valid and enforceable in accordance with its terms, and Old PUB (or Student Access) is not in breach
in the performance, observance or fulfillment of any obligation, covenant or condition contained therein, and no event has occurred
which (with or without the giving of notice or lapse of time, or both) would have a material adverse effect on the ownership, use, or
operation of any of the Assets or the results of operations of the Publishing Business, and to the knowledge of Old PUB and TPRM, no
party is in breach, default or noncompliance with the terms thereunder. Old PUB has not received any notice or claim that it is in
breach of any provision of any material Contract. Old PUB has delivered to the Company true and complete copies of all the written
Contracts listed on Schedule
1.1(b) and Schedule 1.1(w), as amended.
(g) Intellectual Property and Applicable Marks.
(i) Excluding the Applicable Marks, the Intellectual Property (including any licensing of intellectual property) constitutes all
intellectual property used or needed by Old PUB to conduct the Publishing Business in the ordinary course, and Old PUB has the
unrestricted ownership right to convey to the Company all such Intellectual Property. To the knowledge of Old PUB and TPRM, there
is no basis for assertion by any person of any claim against Old PUB or the Company with respect to the use by Old PUB or the
Company of any of the Intellectual Property. Old PUB is not infringing or violating, and to the knowledge of Old PUB and TPRM,
Old PUB has not infringed or violated, any rights of any person with respect to any of the Intellectual Property, and the Intellectual
Property is not subject to any order, injunction or agreement respecting its use. To the knowledge of Old PUB and TPRM, no others
have infringed or are infringing upon
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the Intellectual Property. As of the date hereof, Old PUB has filed no trademark or trade name or copyright registrations with respect
to the Publishing Business, except those set forth on Schedule 4.1(g)(i) hereto.
(ii) TPRM owns all the Applicable Marks, free and clear of any right, title and interest, claim or encumbrance of any third party.
TPRM has the unrestricted ownership right to license the Applicable Marks to Old PUB pursuant to the terms of the TPRM License
Agreement. There is no claim or demand known to either TPRM or Old PUB of any person pertaining to, or any proceedings which
are pending or, to the best knowledge of Old PUB and TPRM, threatened, which challenges the right of TPRM or Old PUB in respect
of any Applicable Mark. No Applicable Mark is subject to any outstanding order, ruling, decree, judgment or stipulation by or with
any court, arbitrator or administrative agency, or, to the knowledge of Old PUB and TPRM, infringes or is being infringed by others.
Schedule 4.1(g)(ii) lists all pending or existing federal or state trademark applications or registrations filed by or granted to TPRM
with respect to the Applicable Marks. Old PUB has the right to transfer the TPRM License Agreement to the Company pursuant to the
terms hereof.
(h) Software. Old PUB has rights to the Software, the nature of which varies among the total collection pursuant to applicable
agreements, but which rights taken together are sufficient to allow Old PUB to conduct the Publishing Business in the manner
presently conducted. The rights, title and interest in and to the Software contributed herein by Old PUB consist of all those under
which Old PUB has conducted the Publishing Business as of the Closing, and Old PUB has exercised reasonable care and prudent
business practices to protect its rights in such Software.
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(i) Governmental Approvals. Except as described on Schedule 4.1(i) hereto, Old PUB has and is fully authorized to assign to the
Company, all Governmental Approvals, and such Governmental Approvals are in full force and effect and constitute the only licenses,
permits, consents, approvals, authorizations, qualifications and orders of governmental
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authorities required for the ownership, use or operation of the Assets or the conduct of the Publishing Business, the failure of which to
obtain or maintain would individually or in the aggregate materially and adversely affect the ownership, use or operation of any of the
Assets or the results of operations of the Publishing Business.
(j) Conduct of Business in Compliance with Regulatory and Contractual Requirements. Except as described on Schedule 4.1(j) hereto,
Old PUB has conducted the Business so as to comply with all applicable laws, ordinances, codes, regulations, rights of concession,
licenses, know-how or other proprietary rights of others, the failure to comply with which would individually or in the aggregate
materially and adversely affect the ownership, use or operation of any of the Assets or the results of operations of the Publishing
Business.
(k) Certain Fees. Old PUB and TPRM and their officers, representatives and employees have not employed any broker or finder or
incurred any other liability for any brokerage fees, commissions or finders' fees in connection with the transactions contemplated
hereby.
(l) Books and Records. All of the books and records relating to the Assets and the conduct of the Publishing Business (including all of
the books and records of the type referred to in Section 1.1 hereof) have in all material respects been prepared and maintained in
accordance with good business practices and, where applicable, in conformity with generally accepted accounting principles and in
compliance with all applicable laws, regulations and other requirements.
(m) Taxes. Old PUB has caused to be timely filed with appropriate federal, state, local and other governmental authorities all tax
returns, information returns or statements and reports required to be filed with respect to the Assets or the conduct of the Publishing
Business and have paid or caused to be paid all taxes shown to be due on such returns or reports, except for any non-filing which
would not have a material and adverse effect on the Assets or the results of operations of the Publishing Business. Old PUB has not
received and neither it nor TPRM has any knowledge of any notice of deficiency or assessment or proposed deficiency or assessment
with respect to any of the Assets or the conduct of the Publishing Business
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from any taxing authority, and there are no outstanding agreements or waivers that extend any statutory period of limitations applicable
to any federal, state or local income or franchise tax returns that include or reflect the use and operation of the Assets or the conduct of
the Publishing Business.
(n) Rights of Third Parties. The Assets are transferable and assignable to the Company as contemplated by this Agreement without the
waiver of any right of first refusal or the consent of any other party being obtained, and there exists no preferential right of purchase in
favor of any person with respect to any of the Assets, Old PUB or the Publishing Business, subject to the reservations of rights
contained in the agreements listed on Schedule 4.1(n) hereto.
(o) Disclosure. No representation or warranty in this
Section 4.1 or in any Schedule or Exhibit to this Agreement, or in any written statement, certificate or other document furnished to the
Company or the Franchisees contains or will contain any untrue statement of a material fact or omits or will omit a material fact
necessary to make the statements therein not misleading.
(p) Labor Matters. To the knowledge of Old PUB and TPRM, there are no controversies pending or threatened between Old PUB and
any of its employees or former employees, which controversies have or could reasonably be expected to have a material adverse effect
on the Assets or the results of operations of the Publishing Business. Except as set forth on Schedule 4.1(p) hereto, Old PUB has no
collective bargaining agreements, employment contracts, employee benefit plans or any other binding agreements relating to the
employment of any of its employees. To the knowledge of Old PUB and TPRM, Old PUB is in substantial compliance with all federal
and state laws respecting employment and employment practices, terms and conditions of employment, and wages and hours, except
for where the failure to so comply would not materially and adversely affect the Assets or the results of operations of the Publishing
Business, and Old PUB is not engaged in any unfair discriminatory labor practice; no unfair labor practice complaint against Old PUB
is pending before the National Labor Relations Board; there is no labor strike,
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2002. EDGAR Online, Inc.
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dispute, slow down or stoppage actually pending or, to the knowledge of Old PUB, threatened against or involving Old PUB or the
Publishing Business; to the knowledge of Old PUB and TPRM, no representation question exists with respect to the employees of Old
PUB; no collective bargaining agreement is currently being negotiated by Old PUB; Old PUB has not experienced any work stoppage
or other similar labor difficulty since formation of Old PUB; and to the knowledge of Old PUB and TPRM, there are no claims against
Old PUB pending before the Equal Employment Opportunity Commission.
(q) Benefit Plans. No action or failure to take action by Old PUB or TPRM prior to the Closing (including the consummation of the
transactions contemplated hereby) has created or will create any lien in favor of the Pension and Benefit Guaranty Corporation or any
beneficiary under any Plan or in favor of any other person or entity pursuant to ERISA or any other similar law, rule or regulation.
(r) Material Assets. The Assets constitute all the assets necessary to conduct the Publishing Business in the manner now presently
conducted by Old PUB, except as otherwise disclosed on Schedule 4.1(r) attached hereto. Upon the consummation of the transaction
provided for herein, Old PUB will not have assets, in the aggregate, of material value.
(s) Financial Information and Absence of Certain Changes. Attached hereto as Schedule 4.1(s) are (i) the unaudited balance sheet of
Old PUB as at December 31, 1994 and the related statement of operation and schedule of selling, general and administrative expenses
for the fiscal year then ended; and (ii) an unaudited balance sheet of Old PUB as at March 31, 1995 and the related statement of
operation and schedule of selling, general and administrative expenses for the three months then ended, including in each case, notes
thereto, if any. Such financial statements are true, complete and correct in all material respects and prepared in accordance with
generally accepted accounting principles applied on a consistent basis. The balance sheets represent fairly the financial position of Old
PUB as of the respective dates thereof, and the statement of operation and schedule of expenses included in such financial statements
present fairly the results of operation and expenses of Old PUB for each of the periods covered
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thereby. As of December 31, 1994 and March 31, 1995, except as disclosed on Schedule 4.1(s) Old PUB did not have any material
liabilities (including any relating to the Publishing Business), whether absolute, accrued or contingent, whether due or to become due,
which were not reserved against in, or reflected on, the respective balance sheets as of such dates in accordance with and to the extent
required by generally accepted accounting principles. Since December 31, 1994, except as otherwise disclosed on Schedule 4.1(s),
there has not been (A) any material adverse change in the financial condition, assets, liabilities, earnings, business prospects or
customer supply relationships of the Publishing Business, (B) any material damage, destruction or loss adversely affecting the
Publishing Business or any of the Assets, (C) any sale, assignment, transfer, lease or other disposition of any material asset of Old
PUB other than sales of inventory in the ordinary course of the Publishing Business, (D) any change by Old PUB in accounting
methods or principles or the application thereof or any change in Old PUB's policies or practices with respect to reserves for bad
debts, inventory obsolescence or other items affecting working capital, (E) any waiver by Old PUB of any rights that, singly or in the
aggregate are material to the Publishing Business, the Assets or the financial condition or the results of operations of the Publishing
Business, (F) any mortgage or pledge of or grant of a lien or security interest in any of the Assets, or (G) any contract or commitment
to do or cause to be done any of the foregoing. Without limiting the generality of the foregoing, since the December 31, 1994 balance
sheet, Old PUB has not incurred or become subject to or agreed to incur or become subject to, any obligation or liability, absolute or
contingent, except current liabilities incurred in the ordinary course of business.
(t) Employee Information. Old PUB has delivered or made available to the Company and the Franchisees an accurate list and summary
description of the following:
(i) the names and titles of and current annual base salaries or hourly rates for all key employees involved in the conduct of the
Publishing Business, together with a statement of the full amount
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and nature of any other remuneration, whether in cash or kind, paid to each such person during the current fiscal year; and
(ii) with respect to each consultant or other third party who provides personal service in connection with the Publishing Business, the
same information as described above, but only if the yearly compensation to such consultant or other third party exceeds $10,000.
The foregoing information shall not be understood to be a representation as to the personnel needs and costs of the Company.
(u) Accounts Receivable. All of the Accounts Receivable are valid and enforceable claims and are not subject to any valid defenses or
offsets, and, to the knowledge of Old PUB and TPRM, may be collected by use of efforts customary in the industry.
2002. EDGAR Online, Inc.
(v) Transaction with Affiliates. Schedule 4.1(v) hereto lists all written contracts or agreements Old PUB has with any of its affiliates
(including TPRM). There are no such material unwritten contracts between the Company and any affiliates.
(w) Special PUB Representations. Attached as Exhibit "B" is a true and accurate copy of the Certificate of Formation of the Company,
and such Certificate has not been amended as of the Effective Date. As of the date hereof, no units of voting or non-voting membership
interests of the Company have been issued or sold and the Company has no obligation to issue any such units pursuant to outstanding
options, warrants, or otherwise, except as specifically contemplated by the terms of this Agreement or as described on Schedule 4.1(w)
attached hereto. Except for the filing of the Certificate of Formation, prior to the Effective Date, the Company has taken no corporate
or other action.
(x) Business Plan. Old PUB has provided to the Franchisees all current written information in its possession that relates to the
proposed business plans for the Publishing Business, including all financial projections and other financial information relating
thereto, and is not information provided to OLD PUB by a third party which is subject to a confidentiality obligation in favor of such
third party. It is understood that Old PUB makes no representation or warranty whatsoever with respect to the
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accuracy or completeness of any such document or projection, or with respect to the underlying assumptions or achievability thereof.
4.2. Representations and Warranties of Franchisees. Each of the Franchisees, severally, but not jointly, represents and warrants to the
Company, TPRM, and Old PUB as follows:
(a) Due Organization; Good Standing and Power. Each corporate Franchisee is a corporation duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation, and is duly qualified to do business and is in good standing
in all jurisdictions in which it is required to be so qualified, except for where the failure to so qualify would not be material. Each
corporate Franchisee has full power and authority to enter into and carry out this Agreement and the Other Agreements, and to perform
its respective obligations hereunder and thereunder. Each individual Franchisee is under no limitation or restriction to enter into and
carry out this Agreement and the Other Agreements and to perform his or her obligations under them.
(b) Validity of Agreement. The execution, delivery and performance of this Agreement and the Other Agreements by each corporate
Franchisee and the consummation by such Franchisees of the transactions contemplated hereby has been duly authorized by all
requisite corporate action. No other corporate action is necessary for the authorization, execution, delivery and performance by such
Franchisees of this Agreement or any Other Agreements and the consummation by such Franchisees of the transactions contemplated
hereby and thereby. This Agreement and the Other Agreements have been duly executed and delivered by each Franchisee and
constitute the legal, valid and binding obligations of such Franchisee, enforceable against such Franchisee in accordance with their
terms.
(c) No Approvals or Notices Required; No Conflict with Instruments. The execution, delivery and performance of this Agreement and
the Other Agreements by each Franchisee and the consummation by it of the transactions contemplated hereby (i) will not violate (with
or without the giving of notice or the lapse of time or both), or require any consent, approval, filing or notice under any provision of
any law, rule or
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regulation, court order, judgment or decree applicable to such Franchisee, and (ii) will not conflict with, or result in the breach or
termination of any provision of, or constitute a default under, or result in the acceleration of the performance of the obligations of such
Franchisee, under, the articles of incorporation or bylaws of such Franchisee or any indenture, mortgage, deed of trust, lease, licensing
agreement, contract, instrument or Other Agreement to which such Franchisee is a party or by which such Franchisee or any of its
assets or properties is bound.
(d) Acquisition for Own Account. Each Franchisee is acquiring its Franchisee's Units for its own account for investment and not with a
view to the sale or distribution thereof or with the present intention of distributing or selling the same, or dividing any such securities
with any other person, except as may be contemplated or permitted by that certain Limited Liability Company Agreement of even date
herewith by and among the Franchisees and Old PUB. It is specifically understood that (i) one or more of the Franchisees may transfer
and assign their respective Franchisee's Units to other Franchisees soon after the execution hereof and (ii) any such transfer and
assignment shall not be a violation of the representation contained in the immediately preceding sentence provided that the transferee
Franchisees reconfirm and affirm such representation with respect to the Franchisee's Units so transferred to the transferee Franchisees.
2002. EDGAR Online, Inc.
4.3. Survival of Representations and Warranties. The respective representations and warranties of the parties contained herein shall
survive the execution and delivery of this Agreement and the other Agreements at the Closing for a period of one (1) year following
the Effective Date (the "Survival Period"). Notwithstanding the right of the Franchisees to investigate the Assets and the Publishing
Business, the Franchisees shall have the right to rely fully upon the representations, warranties, covenants and agreements of TPRM
and Old PUB contained in this Agreement and pursue all rights and remedies in connection therewith; unless as of the date hereof such
Franchisee has actual knowledge that any representations and warranties of Old PUB and TPRM contained in this Agreement are false
or misleading in any material respect, in which circumstance such Franchisee shall have no rights of reliance or pursuance of remedies
related to such representations
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and warranties. Subject to Article 7, a claim for a breach of a representation or warranty must be asserted by the Indemnified Party (as
hereinafter defined) prior to the expiration of the Survival Period by providing the written notice required by Section 7.4(a) below. In
such event, the Indemnifying Party's (as hereinafter defined) obligation under the Agreement shall continue with respect to such claim
until resolution thereof.
5. Deliveries at Closing.
5.1. Deliveries by Old PUB and TPRM. In addition to the instruments and other items to be delivered by Old PUB to the Company at
the Closing pursuant to Section 1.3 above, concurrently with the execution and delivery of this Agreement, Old PUB and TPRM shall
also execute (where appropriate) and deliver to the Company and the Franchisees the following:
(a) Authority and Proceedings. In a form reasonably acceptable to the Franchisees, certified copies of resolutions duly adopted by the
Board of Directors and shareholders of Old PUB and TPRM (which resolutions shall be in full force and effect at the time of delivery)
authorizing the execution and delivery and performance of this Agreement and the Other Agreements and all transactions
contemplated by or incidental thereto, and such other instruments, certificates and documents as the Franchisees shall reasonably
request.
(b) Third Party Consents. All third party consents or approvals, except for those the failure of which to obtain would not have a
material and adverse effect on the Company.
5.2. Deliveries by the Franchisees. Concurrently with the execution and delivery of this Agreement, the Franchisees shall execute
(where appropriate) and deliver to Old PUB, TPRM and the Company the following:
(a) Authority and Proceedings. For each corporate Franchisee, in a form reasonably acceptable to Old PUB, certified copies of
resolutions duly adopted by the Board of Directors of such Franchisee (which resolutions shall be in full force and effect at the time of
delivery) authorizing the execution and delivery and performance of this Agreement and the Other Agreements and all transactions
contemplated by or incidental thereto, and
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such other instruments, certificates and documents as Old PUB shall reasonably request.
(b) Franchise Addendum. Each Franchisee shall execute and deliver to TPRM, an Addendum to its Franchise Agreement with TPRM.
5.3. Additional Closing Documents and Actions. The following additional actions shall take place concurrently with or prior to the
Closing:
(a) Limited Liability Company Agreement. Old PUB and the Franchisees shall adopt and execute and deliver to each other the Limited
Liability Company Agreement.
(b) Issuance of Certificates. The Company shall issue to Old PUB certificates representing the Old PUB Units and shall issue to each
Franchisee certificate(s) representing the number of Franchisees Units set forth opposite such Franchisee's name in Exhibit "A".
(c) Contribution to Old PUB. Old PUB shall have received an equity contribution of $200,000 either in the form of a cash contribution
from its current shareholders or in the form of forgiveness of $200,000 of the related party indebtedness identified on the March 31,
1995 unaudited balance sheet of Old PUB.
6. Covenants; Action Subsequent to Closing.
2002. EDGAR Online, Inc.
6.1. Mail. Old PUB authorizes and empowers the Company on and after the Effective Date to receive and open all mail received by
the Company relating to the Publishing Business or the Assets and to deal with the contents of such communications in any proper
manner. Old PUB shall promptly deliver to the Company any mail or other communication received by it after the Effective Date
pertaining to the Publishing Business or the Assets and any cash, checks or other instruments of payment to which the Company is
entitled.
6.2. Third Party Consents. To the extent that Old PUB's rights under any Contract or other Asset may not be transferred without the
consent or approval of another person which has not been obtained at the Closing despite the exercise by Old PUB of its reasonable
best efforts, this Agreement shall not constitute an agreement to transfer the same if an attempted transfer would constitute a breach
thereof or be unlawful, and Old PUB at the Company's expense, shall use its reasonable best efforts to obtain any such required
consent or approval as
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promptly as possible. If any such consent or approval shall not be obtained or if any attempted transfer would be ineffective or impair
the Company's right to the Assets in question so that the Company would not in effect acquire the benefit of all such rights, Old PUB,
to the maximum extent permitted by law, shall act after the Closing as the Company's agent in order to obtain for the Company the
benefits thereunder, and shall cooperate, to the maximum extent permitted by law, with the Company in any other reasonable
arrangements designed to provide such benefits to the Company. Nothing contained in this Section 6.2 shall relieve Old PUB of its
obligations under any other provisions of this Agreement.
7. Indemnification.
7.1. Indemnification by Old PUB and TPRM. Subject to the provisions of this Section 7, Old PUB and TPRM shall, jointly and
severally, defend, indemnify and hold harmless the Company, each Franchisee, each officer, director and agent of the Company or a
Franchisee and each person who controls the Company or a Franchisee in respect of any material losses, claims, damages, liabilities,
deficiencies, delinquencies, defaults, assessments, fees, penalties or related costs or expenses, including, but not limited to, court costs
and attorneys', and accountants' fees and disbursements (collectively referred to throughout this Agreement as "Damages") to which
the Company, each Franchisee, or any such person may become subject if, and to the extent, such Damages arise out of or are based
upon: (i) the breach of any of the representations, warranties, covenants or agreements made by Old PUB or TPRM in this Agreement
or any Other Agreement or any certificate, document, schedule, instrument or Other Agreement delivered in connection herewith or
therewith and
(ii) any liability or other debts, obligations or contracts of Old PUB or any of its affiliates, other than the Assumed Liabilities.
7.2. Indemnification by the Company. Subject to the provisions of this Section 7, the Company shall defend, shall indemnify and hold
harmless Old PUB and TPRM, each officer, director and agent of Old PUB and each person who controls Old PUB or TPRM in
respect of any material Damages to which Old PUB, TPRM, or any such person may become subject if, and to the extent, such
Damages arise out of or are based upon the Company's obligation for the Assumed Liabilities.
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7.3. Indemnification by the Franchisees. Each of the Franchisees, severally, but not jointly, shall indemnify and hold harmless, Old
PUB, TPRM, the Company, each officer, director and agent of Old PUB, the Company and TPRM, and each person who controls Old
PUB, the Company and TPRM in respect of any material Damages to which Old PUB, the Company, TPRM, or any such person may
become subject if, and to the extent, such Damages arise out of or are based upon the breach of any representations and warranties,
covenants or agreements made by such Franchisees in this Agreement or any Other Agreement or any certificate, document, schedule,
instrument or Other Agreement executed in connection herewith or therewith.
7.4. Indemnification Procedures. The obligations and liabilities of each indemnifying party hereunder with respect to claims resulting
from the assertion of liability by the other party or third parties shall be subject to the following terms and conditions:
(a) If any person shall notify an indemnified party (the "Indemnified Party") with respect to any matter (a "Claim") which may give
rise to a claim for indemnification against Old PUB (or TPRM), the Company or one or more of the Franchisees (the "Indemnifying
Party") under this Section 7, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing; provided,
however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party
from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) Any Indemnifying Party will have the right to defend the Indemnified Party against the Claim with counsel of its choice reasonably
2002. EDGAR Online, Inc.
satisfactory to the Indemnified Party so long as (A) the Indemnifying Party notifies the Indemnified Party in writing within 15 days
after the Indemnified Party has given notice of the Claim that the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety (subject to any limitations contained in
Section 7) of any Damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of or caused by the
Claim, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that
the Indemnifying Party will have the financial resources to defend against
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the Claim and fulfill its indemnification obligations hereunder, (C) the Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse judgment with respect to, the Claim is not, in the good faith
judgment of the Indemnifying Party, likely to establish a precedential custom or practice materially adverse to the continuing business
interests of the Indemnified Party, and (E) the Indemnifying Party conducts the defense of the Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the Claim in accordance with Section
7.4(b) above, (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of
the Claim, (B) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the
Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the Indemnifying Party
will not consent to the entry of any judgment or enter into any settlement with respect to the Claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably).
(d) In the event any of the conditions in Section 7.4(b) above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and, upon notice to the Indemnifying Party, consent to the entry of any judgment or enter into any settlement with
respect to, the Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain
any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Party will remain responsible for any
damages the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Claim to the
fullest extent provided in this Section 7.
8. Miscellaneous.
8.1. Public Announcements. Prior to the Effective Date, no news release or other public announcement pertaining in any way to the
transactions contemplated by this Agreement will be made by any party hereto except in accordance with the terms of this Agreement.
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8.2. Expenses. Except as otherwise specifically provided for herein or in that certain letter agreement dated March 17, 1995 and signed
by Michael F. Rogers and TPRM, each of the parties hereto shall pay the fees and expenses incurred by it in connection with the
negotiation, preparation, execution and performance of this Agreement and the Other Agreements, including, without limitation,
attorneys' fees and accountants' fees.
8.3. Notices. All notices, offers, approvals, elections, consents, acceptances, waivers, reports, requests and other communications
required or permitted to be given hereunder (all of the foregoing hereinafter collectively referred to as "Communications") shall be in
writing and shall be deemed to have been duly given if delivered personally with receipt acknowledged or sent by registered or
certified mail or equivalent, if available, return receipt requested, or by facsimile (with an appropriate answer back code), telex or
cablegram (which shall be confirmed by a writing sent by registered or certified mail or equivalent on the same day that such facsimile,
telex or cablegram is sent), or by recognized overnight courier for next day delivery, addressed or sent to the parties at the following
addresses and facsimile numbers or to such other or additional address or facsimile numbers or to such other or additional address or
facsimile number as any party shall hereafter specify by Communication to the other parties:
2002. EDGAR Online, Inc.
TPRM: The Princeton Review Management Corp.
2315 Broadway
New York, New York 10024
Fax No. (212) 874-0775
Attention: Mr. John Katzman
WITH A COPY TO: Mr. John P. Schmitt
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036-6710
Fax No. (212) 336-2222
OLD PUB: The Princeton Review Publishing Co.,
Inc.
2315 Broadway
New York, New York 10024
Fax No. (212) 874-0775
Attention: Mr. John Katzman
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WITH A COPY TO: Mr. John P. Schmitt Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, New
York 10036-6710 Fax No. (212) 336-2222
THE COMPANY: The Princeton Review Publishing Company, L.L.C.
2315 Broadway
New York, New York 10024
Fax No. (212) 874-0775
Attention: Mr. John Katzman
WITH A COPY TO: Mr. Michael F. Rogers
Sewell & Riggs A Professional
Corporation
333 Clay Avenue, Suite 800
Houston, Texas 77002
Fax No. (713) 652-8808
(OR SUCH OTHER PARTY AS MAY BE
DESIGNATED BY THE FRANCHISEES)
WITH A COPY TO: Mr. John P. Schmitt
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036-6710
Fax No. (212) 336-2222
FRANCHISEES: See addresses for Each Franchisee on
such
Franchisee's separate signature page
WITH A COPY TO: Mr. Michael F. Rogers
Sewell & Riggs A Professional
Corporation
333 Clay Avenue, Suite 800
Houston, Texas 77002
Fax No. (713) 652-8808
(OR SUCH OTHER PARTY AS MAY BE
DESIGNATED BY THE FRANCHISEES)
2002. EDGAR Online, Inc.
Notice of change of address shall be deemed given when actually received or upon refusal to accept delivery thereof; all other
Communications shall be deemed to have been given, received and dated on the earlier of: (i) when actually received or upon refusal
to accept delivery thereof; or (ii) on the date when delivered personally, one
(1) day after being sent by facsimile, cable, telex or overnight courier and four (4) business days after mailing, as aforesaid.
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8.4. New York Law to Apply. This Agreement shall be construed under and in accordance with the laws of the State of New York
without giving effect to the choice of law provisions thereof.
8.5. Section Headings; Index. The section headings contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
8.6. Legal Construction. In case any one or more of the provisions contained in this Agreement shall be invalid or unenforceable in any
respect, the validity and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired
thereby and the parties will attempt to agree upon a valid and enforceable provision which shall be a reasonable substitute for such
invalid and unenforceable provision in light of the tenor of this Agreement and, upon so agreeing, shall incorporate such substitute
provision in this Agreement.
8.7. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original. Each of the Franchisees shall execute a separate signature page in the form attached hereto. By executing
a separate signature page in the form attached hereto, each Franchisee hereby authorizes and agrees that such separately executed
signature page may be appended to the original counterparts of this Agreement to become a part thereof.
8.8. Gender. Wherever the context shall so require, all words herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural, and all plural words shall include the singular.
8.9. Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective
permitted successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the
parties hereto or their respective permitted successors and assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
8.10. Assignability. Neither TPRM or any Franchisee shall be entitled to assign this Agreement except to a transferee which has
acquired all of such party's shares in the Company in a manner permitted by the Limited Liability Company
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Agreement, and no such assignment shall release the transferring party from any of its obligations or duties under this Agreement.
8.11. Arbitration.
(a) Requirement. All claims, controversies disputes and other matters in question arising out of, or relating to this Agreement, the
breach hereof or the rights, privileges, responsibilities or duties between or among any one or more of the parties bound by this
Agreement, shall be decided by arbitration in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the AAA then
existing unless all of the parties to such claim, controversy or dispute or other matter in question unanimously agree to the contrary.
The provisions contained in this Section
8.11 shall be specifically enforceable under the prevailing arbitration law.
(b) Timeliness. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question
has arisen, and in no event shall it be made when institution of legal or equitable proceedings based on such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
(c) Procedure. The arbitrator or arbitrators for any proceeding conducted hereunder shall be selected in accordance with the
commercial arbitration rules of the AAA. The award rendered by the arbitrator or arbitrators shall be final, and judgment may entered
upon it in accordance with applicable law and any court having jurisdiction thereover, the parties hereto consenting to the jurisdiction
of such courts for this purpose.
(d) Costs. Except as provided to the contrary herein, the fees and expenses related to the services provided by the arbitrators and the
2002. EDGAR Online, Inc.
AAA in connection with any arbitration proceeding hereunder shall be paid one-half by each party to such arbitration proceeding.
Notwithstanding the foregoing, the prevailing party in any arbitration proceeding conducted hereunder shall be promptly reimbursed
by the other party for all attorneys' fees reasonably incurred by the prevailing party in such arbitration proceeding and all fees and
expenses paid by such prevailing party for the services rendered by the arbitrators and the AAA.
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8.12. Entire Agreement, Modification, Consents and Waivers. This Agreement (including the Schedules and Exhibits hereto and the
certificates to be delivered in connection herewith) and all of the other documents, instruments, letters and agreements executed
effective of even date herewith contains the entire agreement of the parties with respect to the subject matter thereof. No interpretation,
change, termination or waiver of or extension of time for the performance under any provision of this Agreement shall be binding upon
any party unless in writing and signed by the party intended to be bound thereby. Receipt by any party of money or other consideration
due under this Agreement, or the Closing of the transactions contemplated hereby, with or without knowledge of breach, shall not
constitute a waiver of such breach or any provision of this Agreement. Except as otherwise provided in this Agreement, no waiver of
or other failure to exercise any right under, or default or extension of time for performance under, any provision of this Agreement
shall affect the right of any party to exercise any subsequent right under or otherwise enforce said provision or any other provision
hereof or to exercise any right or remedy in the event of any other default, whether or not similar.
9. Special Provisions.
9.1. Rights upon Reconstitution of Publishing Business. If the TPRM License should ever terminate or expire, for whatever reason,
and TPRM (or any person that controls, is controlled by or is under common control with TPRM) should thereafter elect to continue
the Publishing Business, then TPRM and the Franchisees shall each have the following rights and obligations:
(a) TPRM (i) must conduct the Publishing Business, or cause the Publishing Business to be conducted, through a new corporation or
limited liability company ("new publishing company") pursuant to a license agreement similar to the License Agreement,
(ii) shall cause each of the Franchisees (or the assignee of such Franchisee's rights under this
Section 9.1(a)) to receive the same percentage ownership interest in the new publishing company, simultaneously with the initial
issuance of the new publishing company's stock, which such Franchisee owned on the formation of the Company and (iii) shall cause
the owner or owners of all other ownership
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interests of the new publishing company to enter into an agreement, simultaneously with the initial issuance of the new publishing
company's ownership interests, in a form and content substantially similar to the Limited Liability Company Agreement being entered
into of even date herewith in regard to the ownership interests of the Company.
(b) The Franchisees shall (i) make the agreement contained in Section 2 hereof at such time for the benefit of the new publishing
company, (ii) execute such other documents as may be necessary to reflect that the new publishing company will enjoy all other
privileges and benefits conferred upon the Company pursuant to this Agreement and (iii) execute and enter into, or, if applicable,
cause the assignee of Franchisee's rights under this Section 9.1 to execute and enter into, the agreement referred to clause
(iii) of Section 9.1(a) hereof.
At the option of each Franchisee, the rights contained in this Section
9.1 may be sold, transferred or assigned only together with such Franchisee's units of membership interests in the Company.
9.2. Intentionally Omitted.
9.3. Transfer by Certain Franchisees to Affiliates. Immediately upon completion of the transactions contemplated hereby, certain of the
Franchisees shall, and hereby do, transfer, assign and convey (i) such Franchisee's units of non-voting membership interests in the
Company issued pursuant to this Agreement and (ii) all of the rights of such Franchisee under
Section 9.1 hereof to the person designated next to such Franchisee's name on Exhibit "A" attached hereto as such Franchisee's
"Immediate Transferee." All Immediate Transferee's of a Franchisee shall be an affiliate of such Franchisee. If there is no Immediate
Transferee designated next to any Franchisee's name on Exhibit "A" attached hereto, then such Franchisee is not transferring its units
of non-voting membership interests in the Company issued pursuant to this Agreement to any person pursuant to the provisions of this
Section 9.3. To avoid unnecessary issuance and cancellation of certificates, the initial certificates evidencing those units of non-voting
membership interests in the Company being issued to the Franchisees who are transferring those shares to an Immediate Transferee,
may be initially issued to the Immediate Transferee.
2002. EDGAR Online, Inc.
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9.4. Intentionally omitted
9.5. Franchisees' Legal Fees. Reference is made to the fact that some of the Franchisees ("Fronting Franchisees") have incurred and
paid certain legal fees ("Franchisee Legal Fees") in connection with the negotiation and preparation of this Agreement and certain
other documents and agreements being executed of even date herewith. As a condition precedent to each Franchisee's right to receive
the number of units of non-voting membership interests indicated on Exhibit "A" attached hereto, such Franchisee shall remit to the
Company on behalf of the Fronting Franchisees, an amount equal to $28.00 multiplied by the number of units of non-voting
membership interests to be issued to such Franchisee. Each of the Fronting Franchisees shall be entitled to a credit against such amount
payable pursuant to this Section 9.5 in the amount which such Fronting Franchisee has actually paid through the Closing toward the
Franchisee Legal Fees. All amounts collected by the Company pursuant to this Section 9.5 shall be paid to the Fronting Franchisees in
reimbursement of the Franchisee Legal Fees paid by each of them or for which they are obligated. If the total amount collected
pursuant to this
Section 9.5 exceeds the total amount of Franchisee Legal Fees, then the excess shall be refunded to the Franchisees by the Company in
proportion to the number of units of non-voting membership interests owned by each of them. Company agrees and covenants, for the
benefit of the Fronting Franchisees, that it will not issue the certificate representing Franchisee's units of non-voting membership
interests until it has received payment of the amount required pursuant to the provisions hereof from such Franchisee.
9.6. Legend Requirement. The Certificates representing the Old PUB Units and the Franchisees Units shall bear the following legend:
THE UNITS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR EXEMPTION THEREFROM UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS.
The Franchisees and Old Pub further agree and covenant that they shall not make any transfer or assignment of any units of
membership interests in the Company issued to
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36
them if such transfer or assignment would be in violation of any federal or state securities or other law or that would cause the
Company to be in such violation.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement effective as of the Effective Date.
THE PRINCETON REVIEW MANAGEMENT CORP.
By: /s/ John Katzman
-----------------------------------------
Name: John Katzman
---------------------------------------
Title: President
--------------------------------------
TPRM
THE PRINCETON REVIEW PUBLISHING
COMPANY, L.L.C..
2002. EDGAR Online, Inc.
By: /s/ John Katzman
-----------------------------------------
Name: John Katzman
---------------------------------------
Title: President
--------------------------------------
THE
COMPANY
THE PRINCETON REVIEW PUBLISHING CO., INC.
By: /s/ John Katzman
-----------------------------------------
Name: John Katzman
---------------------------------------
Title: President
--------------------------------------
OLD
PUB
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FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee:
Signature of Franchisee or
Authorized Officer of
Franchisee:
Printed Name of Officer
(if applicable):
Address for Notice:
37
2002. EDGAR Online, Inc.
38
EXHIBIT "A"
Immediate Number of
Units
Name of Transferee of Non-Voting
Franchisee (if any) Membership
---------- -------- ----------
Amherst 29.74
Anaheim 118.4
Boston 160.73
Chapel Hill 27.66
Charlotte 6.82
Cleveland 25.68
Denver 41.44
Detroit 48.06
Fairfield 56.99
Gainsville 13.94
Los Angeles 205.45
Miami 58.59
New Hampshire 22.4
New Jersey 355.16
New Orleans 6.29
Oklahoma 3.12
Phoenix 24.19
Pittsburgh 25.1
Puerto Rico 4.26
Rhode Island 20.81
St. Louis 25.17
San Diego 38.31
San Jose 79.54
Tennessee 11.1
Texas 230.76
Utah 5.25
Westchester 79.31
San Francisco 36.62
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FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Charles F. Emmons & Charles F. Emmons, Jr., Jointly
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Charles F. Emmons & /s/ Charles F. Emmons, Jr., Jointly
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Charles F. Emmons & Charles F. Emmons, Jr.
--------------------------------------------------------------
Address for Notice: P.O.Box 390
Florence, MA 01060
40
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Princeton Review of Boston, Inc.
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Matthew Rosenthal
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Matthew Rosenthal
--------------------------------------------------------------
Address for Notice: 57 Union Street, # 1 Newton, MA 02159
41
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Princeton Review of Orange County, Inc..
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Paul Kanarek
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Paul Kanarek
--------------------------------------------------------------
Address for Notice: The Princeton Review 215 Michelson Drive #280 Irvine, CA 92715
42
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Patricia Krebs
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Patricia Krebs
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Patricia Krebs
--------------------------------------------------------------
Address for Notice: 1829 E. Franklin Street, #600 Chapel Hill, NC 27514
43
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Eric B. Moore
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Eric B. Moore
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Eric B. Moore
--------------------------------------------------------------
Address for Notice: 1206 Providence Road Charlotte, NC 28207
44
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review - Peninsula, Inc.
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Pamela N. Hirsch
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Pamela N. Hirsch
--------------------------------------------------------------
Address for Notice: 6849 Camden Ave., # 106 San Jose, CA 95120
45
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Test Services, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Michael A. Bjornstad
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Michael A. Bjornstad
--------------------------------------------------------------
Address for Notice: 7350 N. Broadway
Denver, CO 80221
46
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Lecamp Co. Inc.
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Lloyd Eric Cotsen
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Lloyd Eric Cotsen
--------------------------------------------------------------
Address for Notice: 1880 Veteran Avenue (#310) Los Angeles, CA 90025
47
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee:The Princeton Review of New Hampshire and Maine, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Matthew Rosenthal
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Matthew Rosenthal
--------------------------------------------------------------
Address for Notice: 57 Union Street, #1 Newton, MA 02159
48
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review of New Jersey, Inc.
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Robert Cohen
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Robert Cohen
--------------------------------------------------------------
Address for Notice: 252 Nassau Street
Princeton, NJ 08542
49
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review of Pittsburgh, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Audrey Olmer
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Audrey Olmer
--------------------------------------------------------------
Address for Notice: P.O. Box 81123
Pittsburgh, PA 15217
50
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review of RI, Inc.
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Paul M. Stouber
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Paul M. Stouber
--------------------------------------------------------------
Address for Notice: 125 Thayer Street
Providence, RI 02906
51
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review of St. Louis, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Wm Lindsley
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Wm Lindsley
--------------------------------------------------------------
Address for Notice: 9666 Olive Boulevard, Suite 140 St. Louis, Missouri 63132-3019
52
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Kafiristan Blokes
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ F. Wade McKinney/Stephen A. Leake
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): The Princeton Review
--------------------------------------------------------------
Address for Notice: 3508 Belmont Blvd.
Nashville, TN 37215
53
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: TS. TS, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ Rob Case/Kevin Campbell
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): Rob Case Kevin Campbell
--------------------------------------------------------------
Address for Notice: 701 N. Post Oak Road, #8 Houston, TX 77024
54
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: Elyane Harney (Utah)
Signature of Franchisee or
Authorized Officer of
Franchisee: /s/ Elyane Harney
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): The Princeton Review
--------------------------------------------------------------
Address for Notice: 8 E. Broadway, Suite 212 Salt Lake City, UT 84111
55
FRANCHISEE JOINDER TO
FORMATION AGREEMENT
By executing in the space provided below, the Franchisee identified below acknowledges having received and read, and agrees to
become a party to, and be bound by, the Formation Agreement dated effective May 31, 1995 by and among The Princeton Review
Publishing Company, L.L.C., The Princeton Review Publishing Co., Inc., The Princeton Review Management Corporation and the
other independent The Princeton Review franchisees identified on exhibit "A" attached thereto
Printed Name of Franchisee: The Princeton Review of Northern California, Inc.
Signature of Franchisee or
Authorized Officer of
2002. EDGAR Online, Inc.
Franchisee: /s/ John Katzman
-------------------------------------------------------------------
Printed Name of Officer
(if applicable): John Katzman
--------------------------------------------------------------
Address for Notice: 2315 Broadway
New York, New York 10024
1
Exhibit 10.43
May 30, 2000
Mr. Rob Cohen
President
Princeton Review of New Jersey, Inc.
252 Nassau Street
Princeton, New Jersey 08542
Re: Distance Learning
Dear Rob:
Princeton Review Operations, L.L.C. ("Operations") is entering into an Option Agreement with Princeton Review of New Jersey, Inc.
and Princeton Review of Boston, Inc. (together, "Boston/NJ"), under which Operations will have the option to purchase the assets of
Boston/NJ on certain agreed terms. As a prerequisite to execution of the Option Agreement, Princeton Review Management, L.L.C.
("Franchisor") and Boston/NJ have agreed to certain terms under which Franchisor and/or its affiliates (collectively, "TPR") will have
the right to market and sell "Distance Learning" in the Boston/NJ franchise territories. The purpose of this letter is to memorialize
those terms.
For purposes of this letter agreement, "Distance Learning" means: (i) any "Interactive Product," as that term is defined in Section 3 of
the May 31, 1995 Addendum to the franchise agreements between Boston/NJ and Franchisor (the "Franchise Agreements"); and (ii)
any web-based "Test Preparation Product" (as that term is defined in Section 2.3 of the May 31, 1995 Formation Agreement relating to
The Princeton Review Publishing Company, L.L.C.) whose suggested retail price exceeds the "Maximum Allowable Price" (as defined
in Section 2.5 of the Formation Agreement). If TPR's total revenues from the Boston/NJ franchise territories in any fiscal quarter from
products included in clause (ii) plus Test Preparation Products whose suggested retail price is less than the Maximum Allowable Price
("Low-Priced Products") exceed 50% of TPR's combined revenues from the Boston/NJ franchise territories for all Distance Learning
products and Low-Priced Products (the "50% Threshold"), Boston/NJ will have the right to suspend its marketing commitment under
Section 7.d below for all Distance Learning products until TPR's revenues from products in clause (ii) plus Low-Priced Products fall
below the 50% Threshold in any quarter. During any period in which Boston/NJ elects to suspend its marketing obligations as
provided in this paragraph, the Distance Learning Fee under Section 3 below will be reduced to ten percent (10%) of Distance
Learning Revenue. Otherwise, the foregoing two sentences will not affect the operation of this letter agreement.
While this letter agreement is in effect, the terms of this letter supersede the provisions of Section 3 of the May 31, 1995 Addendum.
The effectiveness of this letter agreement does not depend on whether Operations exercises the Purchase Option as provided in the
Option Agreement.
2
1. Duration. This letter agreement takes effect upon its execution and execution of the Option Agreement. The terms of this letter
agreement will expire on December 31, 2002 if TPR has not acquired the Boston/NJ franchises by that date. If the terms of this letter
agreement expire under this paragraph, the rights and obligations of TPR and Boston/NJ under Section 3 of the May 31, 1995
2002. EDGAR Online, Inc.
Addendum will go back into effect on January 1, 2003 and will not be affected by this letter agreement.
2. Distance Learning Revenue. "Distance Learning Revenue" means the total monies paid for Distance Learning services by Distance
Learning students in the Boston/NJ franchise territories, minus (i) credit card processing fees incurred in connection with such
payments from Distance Learning students, and
(ii) the aggregate fees paid by TPR to Boston/NJ under Section 5.b below. The zip code of the student's shipping address at the time of
the student's original purchase of Distance Learning will be used to determine whether the student is within or outside of the Boston/NJ
franchise territories. If TPR's records do not show a shipping address, the zip code of the student's billing address at the time of
original purchase of Distance Learning will be used.
3. Distance Learning Fee. TPR will market and sell in the Boston/NJ franchise territories all Distance Learning that TPR generally
markets and sells in the territories of Operations' company-owned sites. In consideration of the right to market and sell Distance
Learning in the Boston/NJ franchise territories, TPR will pay to Boston/NJ fifteen percent (15%) of Distance Learning Revenue (the
"Distance Learning Fee"). For any Distance Learning course that permits the student to sign up for or participate in more than three (3)
hours of online synchronous instruction, the Distance Learning Fee per student will not be less than fifteen percent (15%) of the
average of the prices then charged by TPR franchisees in San Diego, California, Austin, Texas, and New York, New York for the
equivalent live instruction course (if such course exists).
4. Course Tools Fee.
a. TPR will provide each "Course Student" (as defined below) with registered access to the student tools at the web site(s) that TPR
uses to provide online services to students. "Course Student" means a student who enrolled with Boston/NJ after the date of this letter
agreement for a live, in-person SAT, ACT, GRE, GMAT, USMLE, MCAT, or LSAT course. "Course Student" does not include a
student enrolled in any institutional or non-profit course or any mini-course (e.g., PSAT Weekend) appropriately designated in the
TPR management information system. Boston/NJ agrees that it will offer access to online course tools only in conjunction with the
courses provided to Course Students. TPR agrees to offer Boston/NJ Students the same online services offered to course students
enrolled at Operations' company-owned sites.
b. In consideration of the access granted by TPR, Boston/NJ will pay TPR $10.75 for each Course Student (the "Course Tools Fee").
The Course Tools Fee will increase to $11.50 for each Course Student who enrolls after the date on which TPR makes available to
3
Boston/NJ the asynchronous portion of its Distance Learning services for all of the following: SAT, ACT, LSAT, GMAT, and GRE.
c. TPR agrees that all online course tools that are generally available to Course Students on the date of this letter will remain available.
TPR further agrees that, within six months after the date of this letter, the following online services will be available to Course
Students: (i) the ability to view diagnostic results from Yonkers; and (ii) the ability to score Yonkers-supported diagnostics. If either
tool is not available to Course Students by the end of the six-month period, the Course Tools Fee will decrease to $7.50 until such time
as both of the tools referred to in (i) and (ii) above are available to Course Students.
5. Review Sessions.
a. If requested by TPR, Boston/NJ agrees to conduct Review Sessions (as defined below) at least twice per calendar month, at no
fewer sites than the number of locations at which Boston/NJ then conducts courses for graduate school admissions tests. TPR will
provide 90 days advance notice, specifying the requested date, time, session length, and subject matter (e.g., GMAT Math) of the
Review Session. Boston/NJ will make reasonable efforts to provide the Review Session on the terms requested, subject to the regular
business practices of facilities used but not controlled by Boston/NJ. Boston/NJ will have no obligation to conduct a Review Session at
any location that is more than 25 miles from the site(s) at which Boston/NJ regularly schedules course sessions for the subject covered
by the Review Session. TPR may cancel any scheduled Review Session at any time, but TPR will be liable for the Management
Review Session Fee (as defined below) if the cancellation occurs fewer than 14 days before the scheduled date of the Review Session.
b. TPR will pay Boston/NJ $250 per location per session for each Review Session conducted by Boston/NJ (the "Management Review
Session Fee"). In addition, TPR will provide all student materials for Review Sessions that are free of charge to the student under
Section 5.c below. Boston/NJ will provide all other-student materials for Review Sessions. TPR will also provide teacher materials
and Review Session training to Boston/NJ teachers, at a level adequate to prepare a person who is qualified to teach the underlying
course to teach the Review Session in the same subject.
c. TPR will provide a means for Distance Learning students to sign up for Review Sessions online, and will provide Boston/NJ with a
system to view such registration list. Enrollment for Review Sessions will close two business days prior to the Review Session date.
All Distance Learning students whose billing address is within 25 miles of a Boston/NJ course location will have the right to attend
2002. EDGAR Online, Inc.
two Review Sessions free of charge. Distance Learning students may attend any number of additional Review Sessions if the student
pays Boston/NJ no less than the Student Review Session Fee (defined below) for each Review Session in excess of two. Boston/NJ
will be responsible for tracking the attendance of Distance Learning students at Review Courses, using an online system provided by
TPR. Boston/NJ may market additional The Princeton Review(R) services to students whose names TPR provides to Boston/NJ under
4
Section 7.e below.
d. For purposes of this Paragraph:
i. "Review Session" means a session of live instruction lasting not longer than four hours and capable of accommodating up to 25
students.
ii. "Student Review Session Fee" means the amount determined by multiplying the Average Per-session Course Fee by one and
two-tenths (1.2).
iii. "Average Per-session Course Fee" means the amount determined by averaging the Per-session Course Fees calculated for The
Princeton Review(R) offices in San Diego, California, Austin, Texas, and New York, New York.
iv. "Per-session Course Fee" means the amount determined by allocating a Course Fee in accordance with Franchisor's Statement of
Inter-Franchise Transfer Policy.
v. "Course Fee" means the total course fee charged by a Princeton Review office for a full, live classroom course preparing for the
same test as the course in which a Distance Learning student is enrolled.
6. Effect on Calculation of Royalty-Service Fee and Advertising-Promotion Fee. For purposes of calculating royalty-service fees and
advertising-promotion fees due from. Boston/NJ to Franchisor under the Franchise Agreements: (a) the Distance Learning Fee and
Management Review Session Fees will not be included in Boston/NJ's gross receipts, but (b) Student Review Session Fees will be
included in Boston/NJ's gross receipts.
7. Other Benefits and Commitments.
a. TPR will provide registered access to online course make-up sessions for each student enrolled by Boston/NJ after the date of this
letter agreement in a live SAT, ACT, GRE, GMAT, USMLE or LSAT course.
b. TPR will provide Boston/NJ with registered access to TPR's virtual classroom environment (the "Horizon System") for the purpose
of training Boston/NJ course instructors.
c. Boston/NJ will permit Distance Learning students within the Boston/NJ franchise territories to participate in all proctored, simulated
test sessions offered by Boston/NJ. TPR will provide a means for Distance Learning students to sign up online for such simulated test
sessions, and will provide Boston/NJ with a registration list no later than 5 business days before the scheduled test session.
5
d. TPR and Boston/NJ will each, in any marketing that refers to The Princeton Review(R) courses, include references in equal
prominence to live, in-person instruction and Distance Learning services. (The foregoing obligation applies only to materials that are
reprinted, re-recorded, or re-filmed or are first designed or produced after the date of this letter agreement.) References to Distance
Learning in Boston/NJ's materials must be no less prominent (in size, color, position, graphics, audibility, visibility, etc.) than any
reference to tutoring services in the same materials. If the marketing materials make no reference to tutoring services, the reference to
Distance Learning must be prominent to a reasonable consumer.
e. TPR will provide to Boston/NJ, within 10 days after registration, the name, address, telephone number, email address, test date, and
other registration information received by TPR from Distance Learning students whose shipping address is within the Boston/NJ
franchise territories. Boston/NJ will provide materials and a contact plan to TPR before contacting any such student for any purpose
other than the service for which the student registered.
f. Except for the marketing commitment in Section 7.d above, the testing commitment in Section 7.c, and the commitment to provide
live instruction under Section 5.a, TPR will be responsible for all customer service to Distance Learning students.
g. The benefits described in a.-f. above will be provided at no additional charge to TPR, Boston/NJ or their students.
8. Payments. All amounts payable by TPR and Boston/NJ under this letter agreement will be calculated as of the end of each calendar
2002. EDGAR Online, Inc.
quarter and are due within thirty (30) days after the end of the calendar quarter.
9. No Waiver. This letter agreement is entered into without prejudice to any position that Franchisor or Boston/NJ may take in the
future with respect to Section 3 of the May 31, 1995 Addendum, if that provision goes back into effect as provided above.
10. Cancellation. TPR or Boston/NJ may terminate this letter agreement by written notice if the other party fails to cure a default under
this letter agreement within 30 days after receipt of notice of default. However, TPR and Boston/NJ will remain liable for, and will
continue to perform, all of their obligations under this letter agreement with respect to students who enrolled in a live course or
Distance Learning before the effective date of termination.
11. Other Distance Learning Arrangements. TPR will notify Boston/NJ if TPR enters into an agreement on the marketing and sale of
Distance Learning with Test Services, Inc. and/or T.S.T.S., Inc. while this letter agreement is in effect. Boston/NJ will have the right,
within 10 days after receipt of TPR's notice, to notify TPR that Boston/NJ wishes to substitute the terms of TPR's arrangement with
Test Services, Inc./T.S.T.S., Inc. for the terms of this letter agreement. Boston/NJ may not select particular terms of the arrangement
with Test Services, Inc./T.S.T.S., Inc.; Boston/NJ must accept all of the alternative terms or none. If Boston/NJ gives timely notice
6
that it wishes to switch to the alternative terms for the remaining duration of this letter agreement, TPR and Boston/NJ will prepare any
documentation they mutually agree is appropriate to accomplish the switch. With respect to Distance Learning, this provision is in lieu
of any and all other rights Boston/NJ may have under its agreements with TPR to obtain the benefit of terms negotiated by TPR with
others.
If the terms set forth above are acceptable to Boston/NJ, please indicate your agreement by signing this letter in the space provided
below. Two originals of this letter are enclosed; please sign each original and return one of them to me. The remaining original is for
your records.
Very truly yours,
/s/ Mark Chernis
-------------------------
Mark Chernis
Chief Operating Officer
ACCEPTED AND AGREED TO:
PRINCETON REVIEW OF BOSTON, INC.
By: /s/ Robert Cohen
Title: Vice President
PRINCETON REVIEW OF NEW JERSEY,
INC.
By: /s/ Robert Cohen
Title: President
1
Exhibit 10.44
2002. EDGAR Online, Inc.
June 21st, 2000
Mr. Eric Cotsen
President
Lecomp Company, Inc.
11040 Santa Monica Blvd - Suite 400
Los Angeles, CA 90025
Re: Distance Learning
Dear Eric:
Princeton Review Management, L.L.C. ("Franchisor") and Lecomp Company, Inc. ("Lecomp") have agreed to certain terms under
which Franchisor and/or its affiliates (collectively, "TPR") will have the right to market and sell "Distance Learning" in the Lecomp
franchise territories. The purpose of this letter is to memorialize those terms.
For purposes of this letter agreement, "Distance Learning" means: (i) any "Interactive Product," as that term is defined in Section 3 of
the May 31, 1995 Addendum to the franchise agreements between Lecomp and Franchisor (the "Franchise Agreements"); and (ii) any
web-based "Test Preparation Product" (as that term is defined in Section 2.3 of the May 31, 1995 Formation Agreement relating to
The Princeton Review Publishing Company, L.L.C.) whose suggested retail price exceeds the "Maximum Allowable Price" (as defined
in Section 2.5 of the Formation Agreement). If TPR's total revenues from the Lecomp franchise territories in any fiscal quarter from
products included in clause (ii) plus Test Preparation Products whose suggested retail price is less than the Maximum Allowable Price
("Low-Priced Products") exceed 50% of TPR's combined revenues from the Lecomp franchise territories for all Distance Learning
products and Low-Priced Products (the "50% Threshold"), Lecomp will have the right to suspend its marketing commitment under
Section 7.d. below for all Distance Learning products until TPR's revenues from products in clause (ii) plus Low-Priced Products fall
below the 50% Threshold in any quarter. During any period in which Lecomp elects to suspend its marketing obligations as provided
in this paragraph, the Distance Learning Fee under Section 3 below will be reduced to ten percent (10%) of Distance Learning
Revenue. Otherwise, the foregoing two sentences will not affect the operation of this letter agreement.
While this letter agreement is in effect, the terms of this letter supersede the provisions of Section 3 of the May 31, 1995 Addendum.
1. Duration. The terms of this letter agreement will expire on December 31, 2002. If the terms of this letter agreement expire under this
paragraph, the rights and obligations of TPR and Lecomp under Section 3 of the May 31, 1995 Addendum will go back into effect on
January 1, 2003 and will not be affected by this letter agreement.
2
2. Distance Learning Revenue. "Distance Learning Revenue" means the total monies paid for Distance Learning services by Distance
Learning students in the Lecomp franchise territories, minus (i) credit card processing fees incurred in connection with such payments
from Distance Learning students, and
(ii) the aggregate fees paid by TPR to Lecomp under Section 5.b below. The zip code of the student's shipping address at the time of
the student's original purchase of Distance Learning will be used to determine whether the student is within or outside of the Lecomp
franchise territories. If TPR's records do not show a shipping address, the zip code of the student's billing address at the time of
original purchase of Distance Learning will be used.
3. Distance Learning Fee. TPR will market and sell in the Lecomp franchise territories all Distance Learning that TPR generally
markets and sells in the territories of the Operations' company-owned sites. In consideration of the right to market and sell Distance
Learning in the Lecomp franchise territories, TPR will pay to Lecomp fifteen percent (15%) of Distance Learning Revenue (the
"Distance Learning Fee"). For any Distance Learning course that permits the student to sign up for or participate in more than three (3)
hours of online synchronous instruction, the Distance Learning Fee per student will not be less than fifteen percent (15%) of the
average of the prices then charged by TPR franchisees in San Diego, California, Austin, Texas, and New York, New York for the
equivalent live instruction course (if such course exists).
4. Course Tools Fee.
a. TPR will provide each "Course Student" (as defined below) with registered access to the student tools at the web site(s) that TPR
uses to provide online services to students. "Course Student" means a student who enrolled with Lecomp after the date of this letter
agreement for a live, in-person SAT, ACT, GRE, GMAT, USMLE, MCAT, or LSAT course. "Course Student" does not include a
student enrolled in any institutional or non-profit course or any mini-course (e.g., PSAT Weekend) appropriately designated in the
TPR management information system. Lecomp agrees that it will offer access to online course tools only in conjunction with the
2002. EDGAR Online, Inc.
courses provided to Course Students. TPR agrees to offer Lecomp Students the same online services offered to Course Students
enrolled at the Operations' company-owned sites.
b. In consideration of the access granted by TPR, Lecomp will pay TPR $10.75 for each Course Student (the "Course Tools Fee").
The Course Tools Fee will increase to $11.50 for each Course Student who enrolls after the date on which TPR makes available to
Lecomp the asynchronous portion of its Distance Learning services for all of the following: SAT, ACT, LSAT, GMAT, and GRE.
c. TPR agrees that all online course tools that are generally available to Course Students on the date of this letter will remain available.
TPR further agrees that, within six months after the date of this letter, the following online services will be available to Course
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Students: (i) the ability to view diagnostic results from Yonkers; and (ii) the ability to score Yonkers-supported diagnostics. If either
tool is not available to Course Students by the end of the six-month period, the Course Tools Fee will decrease to $7.50 until such time
as both of the tools referred to in (i) and
(ii) above are available to Course Students.
5. Review Sessions.
a. If requested by TPR, Lecomp agrees to conduct Review Sessions (as defined below) at least twice per calendar month, at no fewer
sites than the number of locations at which Lecomp then conducts courses for graduate school admissions tests. TPR will provide 90
days advance notice, specifying the requested date, time, session length, and subject matter (e.g., GMAT Math) of the Review Session.
Lecomp will make reasonable efforts to provide the Review Session on the terms requested, subject to the regular business practices of
facilities used but not controlled by Lecomp. Lecomp will have no obligation to conduct a Review Session at any location that is more
than 25 miles from the site(s) at which Lecomp regularly schedules course sessions for the subject covered by the Review Session.
TPR may cancel any scheduled Review Session at any time, but TPR will be liable for the Management Review Session Fee (as
defined below) if the cancellation occurs fewer than 14 days before the scheduled date of the Review Session.
b. TPR will pay Lecomp $250 per location per session for each Review Session conducted by Lecomp (the "Management Review
Session Fee"). In addition, TPR will provide all student materials for Review Sessions that are free of charge to the student under
Section 5.c below. Lecomp will provide all other student materials for Review Sessions. TPR will also provide teacher materials and
Review Session training to Lecomp teachers, at a level adequate to prepare a person who is qualified to teach the underlying course to
teach the Review Session in the same subject.
c. TPR will provide a means for Distance Learning students to sign up for Review Sessions online, and will provide Lecomp with a
system to view such registration list. Enrollment for Review Sessions will close two business days prior to the Review Session date.
All Distance Learning students whose billing address is within 25 miles of a Lecomp course location will have the right to attend two
Review Sessions free of charge. Distance Learning students may attend any number of additional Review Sessions if the student pays
Lecomp no less than the Student Review Session Fee (defined below) for each Review Session in excess of two. Lecomp will be
responsible for tracking the attendance of Distance Learning students at Review Courses, using an online system provided by TPR.
Lecomp may market additional The Princeton Review(R) services to students whose names TPR provides to Lecomp under Section
7.e below.
d. For purposes of this Paragraph:
i. "Review Session" means a session of live instruction lasting not longer than four hours and capable of accommodating up to 25
students.
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ii. "Student Review Session Fee" means the amount determined by multiplying the Average Per-session Course Fee by one and
two-tenths (1.2).
iii. "Average Per-session Course Fee" means the amount determined by averaging the Per-session Course Fees calculated for The
Princeton Review(R) offices in San Diego, California, Austin, Texas, and New York, New York.
iv. "Per-session Course Fee" means the amount determined by allocating a Course Fee in accordance with Franchisor's Statement of
Inter-Franchise Transfer Policy.
v. "Course Fee" means the total course fee charged by a Princeton Review office for a full, live classroom course preparing for the
same test as the course in which a Distance Learning student is enrolled.
6. Effect on Calculation of Royalty-Service Fee and Advertising-Promotion Fee. For purposes of calculating royalty-service fees and
2002. EDGAR Online, Inc.
advertising-promotion fees due from Lecomp to Franchisor under the Franchise Agreements: (a) the Distance Learning Fee and
Management Review Session Fees will not be included in Lecomp's gross receipts, but (b) Student Review Session Fees will be
included in Lecomp's gross receipts.
7. Other Benefits and Commitments.
a. TPR will provide registered access to online course make-up sessions for each student enrolled by Lecomp after the date of this
agreement in a live SAT, ACT, GRE, GMAT, USMLE or LSAT course.
b. TPR will provide Lecomp with registered access to TPR's virtual classroom environment (the "Horizon System") for the purpose of
training Lecomp course instructors.
c. Lecomp will permit Distance Learning students within the Lecomp franchise territories to participate in all proctored, simulated test
sessions offered by Lecomp. TPR will provide a means for Distance Learning students to sign up online for such simulated test
sessions, and will provide Lecomp with a registration list no later than 5 business days before the scheduled test session.
d. TPR and Lecomp will each, in any marketing that refers to The Princeton Review(R) courses, include references in equal
prominence to live, in-person instruction and Distance Learning services. (The foregoing obligation applies only to materials that are
reprinted, re-recorded, or re-filmed or are first designed or produced after the date of this letter agreement.) References to Distance
Learning in Lecomp's materials must be no less prominent (in size, color, position, graphics, audibility, visibility, etc.) than any
reference to tutoring
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services in the same materials. If the marketing materials make no reference to tutoring services, the reference to Distance Learning
must be prominent to a reasonable consumer.
e. TPR will provide to Lecomp, within 10 days after registration, the name, address, telephone number, email address, test date, and
other registration information received by TPR from Distance Learning students whose shipping address is within the Lecomp
franchise territories. Lecomp will provide materials and a contact plan to TPR before contacting any such student for any purpose
other than the service for which the student registered.
f. Except for the marketing commitment in Section 7.d above, the testing commitment in Section 7.c, and the commitment to provide
live instruction under Section 5.a, TPR will be responsible for all customer service to Distance Learning students.
g. The benefits described in a.-f. above will be provided at no additional charge to TPR, Lecomp or their students.
8. Payments. All amounts payable by TPR and Lecomp under this letter agreement will be calculated as of the end of each calendar
quarter and are due within thirty (30) days after the end of the calendar quarter.
9. No Waiver. This letter agreement is entered into without prejudice to any position that Franchisor or Lecomp may take in the future
with respect to
Section 3 of the May 31, 1995 Addendum, if that provision goes back into effect as provided above.
10. Cancellation. TPR or Lecomp may terminate this letter agreement by written notice if the other party fails to cure a default under
this letter agreement within 30 days after receipt of notice of default. However, TPR and Lecomp will remain liable for, and will
continue to perform, all of their obligations under this letter agreement with respect to students who enrolled in a live course or
Distance Learning before the effective date of termination.
11. Other Distance Learning Arrangements. TPR will notify Lecomp if TPR enters into an agreement on the marketing and sale of
Distance Learning with Test Services, Inc. and/or T.S.T.S., Inc. while this letter agreement is in effect. Lecomp will have the right,
within 10 days after receipt of TPR's notice, to notify TPR that Lecomp wishes to substitute the terms of TPR's arrangement with Test
Services, Inc./T.S.T.S., Inc. for the terms of this letter agreement. Lecomp may not select particular terms of the arrangement with Test
Services, Inc./T.S.T.S., Inc.; Lecomp must accept all of the alternative terms or none. If Lecomp gives timely notice that it wishes to
switch to the alternative terms for the remaining duration of this letter agreement, TPR and Lecomp will prepare any documentation
they mutually agree is appropriate to accomplish the switch. With respect to Distance Learning, this provision is in lieu of any and all
other rights Lecomp may have under its agreements with TPR to obtain the benefit of terms negotiated by TPR with others.
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If the terms set forth above are acceptable to Lecomp, please indicate your agreement by signing this letter in the space provided
below. Two originals of this letter are enclosed; please sign each original and return one of them to me. The remaining original is for
your records.
2002. EDGAR Online, Inc.
Very truly yours,
/s/ Mark Chernis
Mark Chernis
Chief Operating
Officer
ACCEPTED AND AGREED TO:
Lecomp Company, Inc.
By: /s/ Eric
Cotsen
Title: CEO
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Exhibit 10.45
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (the "Pledge Agreement"), dated as of September 19, 2000, is by and between
Steven Hodas ("Hodas"), an individual residing at 730 Fort Washington Avenue, #6A, New York City, New York, and The Princeton
Review, Inc., a Delaware corporation having an address at 2315 Broadway, New York City, New York ("TPR").
W I T N E S S E T H:
THAT WHEREAS, contemporaneously herewith TPR is making a loan (the "Loan") to Hodas in an aggregate amount of two hundred
and fifty thousand dollars ($250,000), the terms of which are set forth in a non-recourse promissory note, dated the date hereof (the
"Note"); and
WHEREAS, it is a condition precedent to TPR's obligation to make the Loan to Hodas that Hodas enter into this Pledge Agreement to
provide TPR with 53,001 shares of the Class B non-voting common stock of TPR (the "Shares") as security for the payment of the
obligations of Hodas to TPR under the Note;
NOW, THEREFORE, in consideration of TPR's agreement to make the Loan to Hodas and in order to provide TPR with assurance of
the payment of Hodas's obligations under the Note, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. As used in this Pledge Agreement the following terms shall have the following meanings:
"Collateral" means the Shares and all Proceeds.
"Proceeds" shall mean "proceeds" as such term is defined in Article 9 of the UCC and, in any event, shall mean and include, but not be
limited to, the following at any time whatsoever arising or receivable:
(i) whatever is received upon any collection, exchange, sale or other disposition of any of the Collateral and any property into which
any of the Collateral is converted, whether cash or non-cash proceeds, (ii) any and all proceeds of any insurance, indemnity, warranty
2002. EDGAR Online, Inc.
or guaranty payable to Hodas from time to time with respect to any of the Collateral, (iii) any and all payments (in any form
whatsoever) made or due and payable to Hodas from time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any governmental body, authority, bureau or agency (or any person acting
under color or governmental authority) and (iv) any and all other amounts from time to time paid, payable, distributed or distributable
under or in connection with any of the Collateral.
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"UCC" shall mean the Uniform Commercial Code as the same may be in effect in the State of New York from time to time.
2. Grant and Perfection of Security Interest. To secure the Secured Obligations (as defined in Section 3 of this Pledge Agreement),
Hodas hereby pledges the Shares to TPR and grants to TPR a first priority security interest in the Collateral. From time to time after
the execution of this Agreement, Hodas shall execute such financing statements and other instruments and documents which, in the
judgment of TPR, may be reasonably necessary, desirable or appropriate to perfect, record or evidence the security interest of TPR in
the Collateral. Hodas hereby authorizes TPR to execute and file such financing statements, instruments and documents on behalf of
Hodas as its attorney-in-fact. Hodas shall pay to TPR reasonable and customary costs and expenses (including, without limitation,
filing fees and recording and stamp taxes) incurred in filing and recording such financing statements, instruments and documents as
well as any such fees and taxes which may be imposed on or with respect to the Collateral or this Agreement.
3. Secured Obligations. This Pledge Agreement secures, and the Collateral is collateral security for, (i) the prompt payment in full
when due, whether by acceleration or otherwise, of the principal of and interest on the Note and (ii) the performance of all obligations
and liabilities of Hodas to TPR pursuant to the provisions of the Note and this Pledge Agreement. All such obligations are hereinafter
collectively referred to as the "Secured Obligations."
4. Delivery of Pledged Shares. Simultaneously with the execution of this Pledge Agreement Hodas shall deliver the certificates
representing the Shares (the "Certificates") to TPR at such place as TPR shall reasonably request. Hodas hereby authorizes TPR to
indicate in its stock records, or to cause TPR's registrar or stock-transfer agent to indicate in the records it maintains, that the Shares
are subject to a security interest in favor of TPR.
5. Non-Recourse. The Note and all Secured Obligations are non-recourse to Hodas. Notwithstanding any provision hereof or of the
Note to the contrary, no deficiency or other judgment for payment of the principal or interest under the Note or any other amount
payable under the Note or this Pledge Agreement shall be sought or entered by TPR against Hodas in any action to enforce the Note or
this Pledge Agreement, provided, however, the foregoing shall not (a) release or impair the Secured Obligations or the lien of the
security interest granted in this Pledge Agreement, (b) affect the rights and remedies of TPR under this Pledge Agreement, (c)
prejudice the rights of TPR under any other collateral instrument further securing the Secured Obligations, or (d) release Hodas from
any liability for fraud, misrepresentation or breach of Section 9 of this Pledge Agreement. If, on the Maturity Date (as defined in the
Note), the stock of Payee constituting the Collateral may not be sold by Hodas either pursuant to an effective registration statement
under the Securities Act of 1933 or the provisions of Rule 144 under that act, Hodas may, by notice to TPR, satisfy all Secured
Obligations in full by relinquishing his rights in (a) the Collateral or (b) that portion of the Collateral (valued at Fair Market Value as
described below) necessary to satisfy such obligations, with the balance of the Collateral being forthwith assigned, transferred and
delivered by TPR to Hodas. For all purposes under this Pledge Agreement and the Note, Fair Market Value
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of the Collateral shall be determined as follows: (a) if the stock of TPR is then listed on Nasdaq or a national securities exchange, the
Fair Market Value of the stock of TPR shall be the average closing price of such stock as reported on Nasdaq or the applicable
exchange for the five trading days preceding the date of the action which requires the determination of Fair Market Value under this
Pledge Agreement or (b) if the stock of TPR is not then traded on Nasdaq or a national securities exchange, the Fair Market Value will
be the then applicable Agreed Value (as determined pursuant to the Stockholders' Agreement, dated April 1, 2000, among TPR and its
stockholders).
6. Representations and Warranties of Hodas. Hodas hereby represents and warrants to TPR as follows:
(a) Hodas is the legal owner of the Shares, free and clear of any liens, claims or encumbrances whatsoever other than the lien and
security interest created by this Pledge Agreement.
(b) Hodas has full power, authority and legal right to pledge and grant a first priority security interest in all the Collateral to TPR
pursuant to this Pledge Agreement.
2002. EDGAR Online, Inc.
(c) This Pledge Agreement has been duly and validly executed and delivered by Hodas and constitutes the legal and valid obligation of
Hodas, enforceable against Hodas in accordance with its terms.
(d) No notice by Hodas to any governmental authority or regulatory body or filing by Hodas with any governmental authority or
regulatory body is required, nor is Hodas required to obtain any consent, authorization, approval or other action by any governmental
authority or regulatory body, for
(i) the execution, delivery or performance of this Pledge Agreement by Hodas,
(ii) the grant by Hodas of a security interest in the Collateral pursuant to this Pledge Agreement or (iii) the exercise by TPR of the
rights provided for in this Pledge Agreement, except for the filing of a financing statement in the appropriate jurisdictions to record the
security interest created hereby.
(e) The execution of this Pledge Agreement and the delivery of the Certificates to TPR pursuant to this Pledge Agreement create a
valid and perfected first priority security interest in the Collateral in favor of TPR securing the payment of the Secured Obligations
(assuming the filing of a financing statement in the appropriate jurisdictions to record the security interest created hereby).
7. Further Assurances. Hodas agrees that at any time and from time to time Hodas will promptly execute and deliver all such further
instruments and documents and take all such further actions, as may be necessary or as TPR may reasonably request, in order further to
perfect and protect the security interest in the Collateral in favor of TPR granted or purported to be granted pursuant to this Pledge
Agreement and to enable TPR to exercise and enforce its rights and remedies hereunder with respect to any Collateral.
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8. Income, Dividends, Distributions or Other Payment. As long as no Event of Default (as defined in the Note) shall have occurred and
be continuing, Hodas shall be entitled to receive and retain any and all regular cash dividends paid on or with respect to the Collateral.
Upon the occurrence and during the continuance of an Event of Default, all rights of Hodas to receive such dividends which Hodas
would otherwise be authorized to receive and retain pursuant to this Section 7 shall cease and all such rights shall thereupon become
vested in TPR which shall thereafter have the sole right to receive and hold as Collateral such dividends during the continuance of
such Event of Default. All regular cash dividends which are received by Hodas contrary to the provisions of this Section 7 and all
other dividends or other distributions paid on or with respect to the Collateral during the term of this Pledge Agreement (including,
without limitation, extraordinary cash dividends and dividends in the form of property other than cash) shall be received by Hodas in
trust for the benefit of TPR, shall be segregated from other funds of Hodas and shall immediately be paid over to TPR as Collateral in
the same form as so received (with any necessary endorsement). In order to permit TPR to receive the dividends and other
distributions paid on or with respect to the Collateral which it is authorized to receive and retain pursuant to this Section 7, Hodas
shall, if necessary, upon written request of TPR, from time to time execute and deliver (or cause to be executed and delivered) to TPR
all such payment orders and other instruments as TPR may reasonably request.
9. Transfer and Other Liens. Hodas agrees that he will not (a) sell or otherwise dispose of any of the Collateral or (b) create or permit
to exist any lien, security interest, charge or other encumbrance upon or with respect to any of the Collateral, except for the lien and
security interest granted under this Pledge Agreement. Any such lien, security interest, charge or other encumbrance shall be null and
void and of no force or effect whatsoever.
10. Remedies Upon Default.
10.1 Upon the occurrence of an Event of Default (as defined in the Note), TPR shall have (but shall have no obligation to exercise or
pursue) all of the default rights, powers and remedies of a TPR under Section 9-501 et seq. of the UCC, all of the rights, powers and
remedies available at law or in equity for the enforcement of the Secured Obligations and the realization of the benefits of this
Agreement and the Collateral, and all of the following rights, powers and remedies:
(a) to declare all of the Secured Obligations to be immediately due and payable;
(b) to take immediate possession of the Collateral and sell, at public or private sale or sales, lease, assign, collect, transfer or otherwise
dispose of it or realize upon it, provided that TPR shall sell or dispose of only that portion of the Collateral necessary to fulfill the
Secured Obligations;
(c) to exercise and enforce all of the rights and powers and pursue all of the remedies of Hodas in respect of the Collateral;
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(d) to settle, adjust or compromise any claim or dispute in respect of the Collateral; and
2002. EDGAR Online, Inc.
(e) on behalf of Hodas, to give receipts and to endorse checks, notes, drafts, money orders, instruments and other evidences of
payment or indebtedness with respect to the Collateral.
10.2 TPR may apply all amounts actually realized by it resulting from the exercise of any right or power or the pursuit of any remedy
after an Event of Default in such manner and in such order of priority as TPR in its sole discretion may determine.
10.3 Hodas agrees that 10 days' prior notice of any public sale, private sale or other disposition is a reasonable notification. Any and
all sales or other dispositions of the Collateral may, in TPR's sole discretion, be public or private dispositions and may include all or
any part of the Collateral. All such sales and other dispositions shall be at such times and places, upon such terms and conditions
(including, without limitation, for cash or on credit and for immediate or future delivery) and at such price or prices as TPR in its
discretion may determine, provided that at no time shall the sale of the Shares be at a price that is below Fair Market Value. TPR or
any nominee of TPR may be the purchaser, assignee or transferee of all or any part of the Collateral.
10.4 Hodas shall pay, immediately upon demand therefor, all reasonable and customary costs and expenses (including counsel fees and
expenses) incurred by TPR in seeking to exercise any right or power or to pursue any remedy in any manner relating to the Collateral
or this Agreement together with simple interest thereon at the rate of twelve percent (12%) per annum from the date incurred to the
date paid by Hodas. The liability of Hodas arising under this Section 10.4 shall be included within the Secured Obligations secured by
the Collateral.
11. No Waiver. No failure on the part of TPR to exercise, no course of dealing with respect to and no delay in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by TPR of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies
herein provided are to the fullest extent permitted by law cumulative and are not exclusive of any other remedies provided by law.
12. Amendments. No amendment or waiver of any provision of this Pledge Agreement or consent to departure therefrom shall be
effective unless agreed to in writing by Hodas and TPR in the case of an amendment or by TPR in the case of a waiver or consent to
departure therefrom.
13. Termination of Security Interest and Release.
(a) When all Secured Obligations have been paid in full, this Pledge Agreement shall terminate and TPR shall forthwith assign,
transfer and deliver to or on the order of Hodas,
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against receipt and without recourse to TPR, such of the Collateral as shall not have been released, sold or otherwise applied pursuant
to the terms hereof.
(b) Hodas shall at all times retain the right to sell shares represented by the Collateral, provided that the net proceeds from such sales
are used to prepay the Loan, and also provided that such sales are in accordance with the provisions of the Stockholders Agreement
and any applicable underwriters' lock-up or similar agreements. TPR will release its security interest in the Collateral to the extent
necessary to permit any such sales.
14. Addresses for Notices. All notices, requests, demands or other communications to or from TPR or Hodas shall be in writing and
shall be deemed to have been duly given and made on the third day following deposit in the mail if sent postage prepaid by certified
mail, return receipt requested, on the next business day following delivery to the delivery service if sent by a recognized overnight
delivery service (with charges prepaid) or when received if delivered by hand. Any such notice, request, demand or communication
shall be addressed or delivered as follows, or to such other addresses as the parties may designate by like notice:
If to Hodas:
Steven Hodas
730 Fort Washington Avenue, #6A
New York, NY 10040
If to TPR:
The Princeton Review, Inc.
2002. EDGAR Online, Inc.
2315 Broadway
New York, New York 10024
Attn: John S. Katzman
with a copy to:
Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036 Attention: John P. Schmitt, Esq.
15. Continuing Security Interest. This Pledge Agreement shall create a continuing security interest in the Collateral and shall remain in
full force and effect until payment in full of all Secured Obligations, be binding upon Hodas and his heirs, executors, administrators,
successors and assigns and inure, together with the rights and remedies of TPR hereunder, to the benefit of TPR and each of its
successors, transferees and assigns.
16. Governing Law. This Pledge Agreement shall be governed by and construed in accordance with the laws of the State of New York
without regard to the choice of
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law provisions thereof. Venue in any action or proceeding arising out of or relating to this Pledge Agreement shall be in any state or
federal court sitting in New York, New York, and Hodas hereby irrevocably waives any objection he may have to the laying of venue
of any such action or proceeding in any such court and any claim he may have that any such action or proceeding has been brought in
an inconvenient forum. A final judgment in any such action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
17. Attorney-in-Fact. Hodas hereby appoints TPR as Hodas' attorney-in-fact and proxy for the purpose of carrying out the provisions
of this Pledge Agreement and taking any action and executing any instrument which TPR may reasonably deem necessary or advisable
to accomplish the purposes hereof. The foregoing power of attorney is coupled with an interest and shall be irrevocable prior to
payment in full of the Secured Obligations. TPR shall give Hodas prior written notice of any actions taken by TPR as attorney-in-fact
for Hodas.
IN WITNESS WHEREOF, Hodas and TPR have caused this Pledge and Security Agreement to be executed as of the day and year
first above written.
THE PRINCETON REVIEW, INC.
By: /s/ John Katzman /s/ Steven Hodas
--------------------------
-----------------------
John Katzman Steven Hodas
President
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1
Exhibit 10.46
NON-RECOURSE PROMISSORY NOTE
$250,000.00 New York, New York September 19, 2000
FOR VALUE RECEIVED, Steven Hodas ("Hodas"), an individual residing at 730 Fort Washington Avenue, #6A, New York City,
New York, hereby promises to pay to the order of The Princeton Review, Inc., a Delaware corporation (the "Payee"), on a
non-recourse basis, the principal sum of Two Hundred and Fifty Thousand Dollars ($250,000.00), payable on the earlier to occur of
(a) the third anniversary of the date funds are first received by Hodas hereunder or (b) 90 days from the date Hodas' employment with
2002. EDGAR Online, Inc.
TPR or an affiliate of TPR terminates due to Hodas' resignation or (c) 7 days from the date Hodas' employment with TPR or an
affiliate of TPR terminates without Cause (as defined in the current Executive Compensation Policy Statement) or (d) 180 days from
the date Hodas' employment with TPR or an affiliate of TPR terminates without Cause (as defined in the current Executive
Compensation Policy Statement) or due to TPR's non-renewal of Hodas' employment agreement (as applicable, the "Maturity Date").
Hodas also promises to pay interest on the outstanding principal sum hereof (computed on the basis of the actual number of days
elapsed over a year of 365 days), from the date funds are first received by Hodas hereunder until the date the principal sum hereof is
paid in full, at a rate of interest equal to seven and three tenths percent (7.3%) per annum. Accrued interest on the principal sum hereof
shall be payable on the Maturity Date or, if earlier, upon the occurrence of an Event of Default (as hereinafter defined). The principal
sum hereof, together with all interest thereon, shall be payable to TPR in lawful money of the United States of America at TPR's
address for notice set forth in this Note or at such location as is specified by TPR to Hodas. The receipt of a check shall not, in itself,
constitute payment hereunder unless and until paid in good funds. Whenever any payment on this Note shall be due on a day which is
not a business day, such payment shall be made on the next succeeding business day and such extension of time shall be included in
the computation of the payment of interest on this Note.
The principal amount of this Note, together with all accrued interest thereon, may be voluntarily prepaid by Hodas in whole or in part,
at any time and from time to time, without premium or penalty. All monies received by TPR from Hodas from time to time hereunder
shall be applied first to the payment of all accrued but unpaid interest on the principal amount of this Note, and then to principal.
This Note is secured by the grant of a security interest pursuant to that certain Pledge and Security Agreement, dated as of the date
hereof (the "Pledge Agreement"), by Hodas in favor of TPR. This Note and all Secured Obligations of Hodas (as defined in the Pledge
Agreement) shall be non-recourse to Hodas. Notwithstanding any provision hereof or of the Pledge Agreement to the contrary, no
deficiency or other judgment for payment of the principal hereof, interest thereon or any other amount payable under this Note or the
Pledge Agreement
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shall be sought or entered by the Payee against Hodas in any action to enforce this Note or the Pledge Agreement, provided, however,
the foregoing shall not (a) release or impair the lien of the security interest granted in the Pledge Agreement, (b) affect the rights and
remedies of the Payee under the Pledge Agreement, (c) prejudice the rights of the Payee under any other collateral instrument further
securing the Secured Obligations, or (d) release Hodas from any liability for fraud, misrepresentation or breach of Section 9 of the
Pledge Agreement. If, on the Maturity Date, the stock of Payee constituting the Collateral may not be sold by Hodas either pursuant to
an effective registration statement under the Securities Act of 1933 or the provisions of Rule 144 under that act, Hodas may, by notice
to TPR, satisfy all Secured Obligations in full by relinquishing his rights (a) in the Collateral or (b) in that portion of the Collateral
(valued at Fair Market Value, as determined under the Pledge Agreement) necessary to satisfy such obligations with the balance of the
Collateral being forthwith assigned, transferred and delivered by TPR to Hodas.
Hodas hereby represents and warrants that the borrowing evidenced by this Note will be used by Hodas to consummate a real estate
purchase, that Hodas has full power and authority to execute this Note, that no approvals or consents of any other party are necessary
and that this Note is a binding obligation and subject to the full faith and credit of Hodas. Hodas agrees that his obligations under this
Note are unconditional and not subject to deduction, diminution, abatement, counter-claim, defense or set-off for any reason
whatsoever.
Upon the occurrence and during the continuance of any of the events listed below (each, an "Event of Default"), at the option of TPR
and in TPR's sole discretion, TPR may, on notice to Hodas, declare all amounts payable pursuant to this Note to be immediately due
and payable, both as to principal and interest, without presentment, demand, protest or other notice of any kind, all of which are
expressly waived by Hodas (unless such Event of Default shall have been waived in writing by TPR, which waiver shall not be deemed
to be a waiver of any subsequent Event of Default). The following events shall constitute an Event of Default:
A. Failure of Hodas to pay either the principal or interest on this Note, as such payment becomes due and payable whether at maturity,
upon acceleration or otherwise;
B. Violation by Hodas of any representation, warranty or agreement of Hodas contained herein or in the Pledge Agreement; or
C. In respect of Hodas, (i) a general assignment for the benefit of creditors; (ii) the commencement (voluntary or involuntary) of any
proceeding under Title 11 of the U.S. Code or any law of any jurisdiction for the relief, liquidation or rehabilitation of debtors or
seeking the appointment of or the taking of possession by a receiver, custodian, trustee, liquidator or similar official of or for him or of
or for a substantial part of his assets; (iii) the appointment of or taking of possession by a receiver, custodian, trustee, liquidator or
similar official of or for him or of or for a substantial part of his assets; or (iv) the making of any levy on or judicial seizure or
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attachment of any of the collateral securing the payment of the obligations
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of Hodas under this Note or of a substantial part of his other assets which is not discharged, released, vacated or fully bonded within
five days after such making.
Hodas hereby waives presentment and demand for payment, notice of dishonor, protest and notice of protest. If this Note or any
installment of principal or interest is not paid when due, whether at maturity or by acceleration, Hodas promises to pay all reasonable
and customary costs of collection, including without limitation, reasonable and customary attorneys' fees, and reasonable and
customary expenses in connection with the protection or realization of the collateral securing this Note, incurred by the holder hereof
on account of such collection, whether or not suit is filed hereon, together with simple interest thereon at the rate of twelve percent
(12%) per annum from the date incurred to the date paid by Hodas; such costs and expenses shall include, without limitation,
reasonable and customary costs, expenses and attorneys' fees actually incurred by the holder hereof in connection with any insolvency,
bankruptcy, arrangement or other similar proceedings involving the undersigned, or involving any endorser or guarantor hereof, which
in any way affects the exercise by the holder hereof of its rights and remedies under this Note or under the pledge and security
agreement securing or pertaining to this Note.
In the event any one or more of the provisions contained in this Note shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Note, but this Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
This Note may not be changed orally, but only by an agreement in writing signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.
Any notice, demand, request or other communication which Hodas or TPR may be required or may desire to give hereunder shall be in
writing and shall be deemed to have been properly given and made on the third day following deposit in the mail if sent postage
prepaid by certified mail, return receipt requested, on the next business day following delivery to the delivery service if sent by a
recognized overnight delivery service (with charges prepaid) or when received if delivered by hand. Any such notice, demand, request
or communication shall be addressed or delivered as follows, or to such other addresses as the parties may designate by like notice.
To Hodas:
Steven Hodas
730 Fort Washington Avenue, #6A New York, NY 10040
To TPR:
The Princeton Review, Inc.
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2315 Broadway
New York, New York 10024
Attn: John S. Katzman
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with a copy to:
Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas
New York, New York 10036
Attention: John P. Schmitt, Esq.
Each right, power and remedy of TPR hereunder, now or hereafter existing at law or in equity by state or other applicable laws shall be
cumulative and concurrent, and the exercise of any one or more of them shall not preclude the simultaneous or later exercise by TPR
of any or all such other rights, powers or remedies. No failure or delay by TPR to insist upon the strict performance of any term,
condition, covenant or agreement of this Note, or to exercise any right, power or remedy consequent upon a breach or default thereof,
shall constitute a waiver of any such term, condition, covenant or agreement or of any such breach or default, or preclude TPR from
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exercising any such right, power or remedy at any later time or times. By accepting payment after the due date under this Note, TPR
shall not be deemed to have waived the right to require payment when due of all other payments due under this Note.
This Note shall be governed by, construed and interpreted in accordance with the laws of the State of New York (excluding the choice
of laws rules thereof). Venue in any action or proceeding arising out of or relating to this Note shall be in any state or federal court
sitting in New York, New York, and Hodas hereby irrevocably waives any objection he may have to the laying of venue of any such
action or proceeding in any such court and any claim he may have that any such action or proceeding has been brought in an
inconvenient forum. A final judgment in any such action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
IN WITNESS WHEREOF, Hodas has executed and delivered this Note on the date above written.
/s/ Steven Hodas
-----------------------------------
Name: Steven Hodas
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Exhibit 10.47
As of September 20, 2000
Mr. Stephen Melvin, CFO
The Princeton Review, Inc.
2315 Broadway
New York, New York 10024
Re: Credit Facility
Gentlemen:
EXCEL BANK, N.A. (the "Bank") is pleased to advise you that it has approved a $4,500,000 (Four Million Five Hundred Thousand
Dollars) line of credit (the "Line of Credit") for The Princeton Review, Inc. (the "Borrower") under the terms and conditions contained
in this letter (the "Line Letter") and outlined below.
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Purpose
of Credit Facilities: This Line of Credit is intended as a loan facility
under
which the Bank may make short term loans ("Loans") for
the acquisition of franchises and for working capital
purposes.
Amount and
Availability: Four Million Five Hundred Thousand Dollars
($4,500,000.00) in the aggregate at any one time
outstanding.
Collateral Security: Shall mean a first priority security interest in all
present and future personal property of the Borrower
and
each Guarantor, in favor of the Bank and assignments by
the Borrower of the Borrower's membership interests in
Princeton Review Management, LLC, Princeton Review
Publishing, LLC, Princeton Review Products, LLC and
Princeton Review Operations, LLC. In addition, Borrower
will pledge to the Bank its ownership interest it any
company it may hereafter acquire within 30 days of the
acquisition thereof (all such companies being hereafter
referred to individually as a "Subsidiary" or
collectively "Subsidiaries" as the context hereof may
require).
Expiration Date: This facility shall expire on the earlier of October 1,
2001 or the prepayment of the loan from the proceeds of
the IPO which payment shall be made
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within 10 business days thereof. If prepayment occurs
prior December 27, 2000, Borrower will pay the Bank a
prepayment penalty of $45,000.00.
Guaranty: Receipt of a guaranty, in form and substance
satisfactory
to the Bank, from each Subsidiary. In addition thereto,
the Bank shall receive a guaranty, in similar a form,
from any and all companies, corporations or other
business entities formed by any of the Borrower or any
guarantor while the Loan remains outstanding. Such
guaranties shall be duly executed and delivered to the
Bank within 10 business days of the formation or
creation
of such entity.
Interest Rate,
Commitment Fee and
Operating Accounts: (a) The Loans shall bear interest at a fluctuating rate
per annum equal to One Per Cent (1.00%) in excess of the
Wall Street Journal prime ("Prime Rate") from time to
time in effect, such interest rate to change when and as
the Prime Rate changes.
(b) Interest on all Loans shall be computed on the basis
of a 360-day year for actual days elapsed and shall be
payable monthly in arrears on the first day of each
month. The term "Prime Rate" means the variable per
annum
rate of interest so designated by the Wall Street
Journal
from time to time as the prime rate. The Prime Rate is
reference rate and does not necessarily represent the
lowest or best rate being charged to any customer by the
Bank.
(c) The Borrower shall maintain an operating account
with
the Bank.
(d) A commitment fee of one quarter of one percent (1/4
%) per annum on the unused portion of the total Line of
Credit, payable monthly in arrears. The commitment fee
starts accruing as of the acceptance date of this
letter.
Financial Covenants: So long as the Loan remains outstanding, the Borrower
will not make any distribution or payment in the nature
of a dividend to its stockholders nor shall it, or any
of
Subsidiaries create, incur or suffer to exist
indebtedness for borrowed money except for indebtedness
subordinate in right of payment to the indebtedness to
the Bank. No subordinated indebtedness shall be payable
in advance of the senior indebtedness nor shall the
provisions of any subordination agreement permit the
Borrower to prepay or anticipate of payment of the
subordinated indebtedness so long as the senior
indebtedness is in default or the making of such a
payment would result in the occurrence of such a
default.
In addition thereto, the Borrower will agree not to make
any prepayment of the subordinated indebtedness so long
as the senior
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indebtedness remains outstanding, nor shall the holder
of
any subordinated indebtedness take any action with
respect to any collateral security therefor until the
senior indebtedness is paid and satisfied in full.
Anything to contained herein or in any of the loan
document to the contrary notwithstanding, the Bank
agrees
that the Borrower may grant a security interest to
Reservoir Capital Group in Borrower's assets in
connection with loans that it may hereafter make to the
Borrower provided the same are subordinated in
accordance
with the provisions hereof.
Reporting
Requirements: During the period in which this Line of Credit remains
in
effect and/or any obligations thereunder are
outstanding,
the Borrower will deliver to the Bank the following:
(i) Within 120 days after the end of the fiscal year of
the Borrower, combined and combining annual financial
statements consisting of a balance sheet, statement of
income and retained earnings and statement of cash flow
for the period to which it applies. The annual financial
statements will be in a form and substance satisfactory
to the Bank reviewed by Ernst & Young LLP or any other
independent certified public accountant selected by the
Borrower and reasonably acceptable to the Bank.
(ii) Within 60 days after the end of each of the first
three quarters of each fiscal year of the Borrower,
combined and combining financial statements consisting
of
a balance sheet, statement of income and retained
earnings and statement of cash flow for the period to
which it applies. The quarterly financial statements
will
be in a form and substance satisfactory to the Bank
prepared on a compiled basis by the chief financial
officer of the Borrower (subject to normal year-end
adjustments).
(iii) All financial statements will be accompanied by a
certificate of the chief financial officer of the
Borrower certifying that there has not occurred a
default
or an event of default.
Amendment: No amendment of any provisions of this Line Letter shall
be effective unless it is in writing and signed by the
Borrower and the Bank, and no waiver of any provision of
this Line Letter, and no consent to any departure
thereof
by the Borrower therefrom, shall be effective unless it
is in writing and signed by the Bank, and then such
waiver or consent shall be effective only in the
specific
instance and for the specific purposes for which given.
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Documentation: Utilization of this Line of Credit is subject to the
execution and delivery of legal documentation in form
and
substance satisfactory to the Bank and its counsel,
which
documentation will include, but not be limited to,
promissory note(s), general security agreement,
guarantees, assignments, any required regulatory,
governmental, or other third-party approval or consents.
Fees: All reasonable legal fees incurred by the Bank in
connection with the negotiation, preparation, execution
and delivery of this Line of Credit and the transactions
contemplated hereby shall be for the account of the
Borrower.
Taxes and other
Charges: All payments by the Borrower in connection with this
Line
of Credit shall be made in United States Dollars, free
and clear of any present or future taxes, levies,
deductions or withholding of whatever nature.
Governing Law,
Jurisdiction: This letter agreement and each extension of credit
hereunder shall be governed by and construed in
accordance with the laws of the State of New York and
the
Borrower hereby submits to the jurisdiction of the
United
States federal courts and the courts of the State of New
York located in any county or city as selected by the
Bank within the State of New York.
The terms and conditions of the facility are not limited to those outlined above; those matters not covered or made clear in the above
outline are subject to mutual agreement of the parties.
If the foregoing is satisfactory to you, please execute a copy of this letter where your name appears below and return the same to the
undersigned. This offer is available if executed on or before October 2, 2000. We appreciate the opportunity to be of service to you.
Read agreed and consented to: Very truly yours,
THE PRINCETON REVIEW, INC. EXCEL BANK, N.A.
By:/s/ Stephen Melvin By:/s/ Roberto Mejia
-----------------------------------------
----------------------------
Name: Stephen Melvin Name: Roberto Mejia
Title: Treasurer and Chief Financial Officer Title: Vice President
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2002. EDGAR Online, Inc.
1
EXHIBIT 10.48
EXCEL BANK, N.A.
PROMISSORY NOTE
$4,500,000.00 New York, NY October 27, 2000
On October 31, 2001 (the "Maturity Date"), for value received, THE PRINCETON REVIEW INC. (the "Borrower") promises to pay
to the order of EXCEL BANK, N.A. (the "Bank") at the office of the Bank located at 400 Park Avenue, New York, NY 10022 or at
such other place as the holder hereof may from time to time appoint in writing, in lawful money of the United States of America in
immediately available funds the principal sum of FOUR MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($4,500,000.00) or such lesser amount as may then be the aggregate unpaid principal balance of all loans made by the Bank to the
Borrower hereunder (each a "Loan" and collectively the "Loans") as shown on the schedule attached to and made a part of this Note.
The Borrower also promises to pay interest at said office in like money on the unpaid principal amount of each Loan from time to time
outstanding at a rate per annum, to be elected by the Borrower at the time each Loan is made, equal to a rate equal to one percent (1%)
in excess of the Prime Rate as hereafter defined from time to time in effect. "Prime Rate" the variable per annum rate of interest so
designated from time to time by the Wall Street Journal as its prime rate, or if no Prime Rate is so designated, a the variable per annum
rate of interest so designated from time to time in the Wall Street Journal as the Prime Rate, or if no Prime Rate is so designated, a
variable per annum rate of interest so designated from time to time by the Bank as its Prime Rate . The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any customer of the Bank. All computations of interest
under this Note shall be made on the basis of a three hundred sixty (360) day year and the actual number of days elapsed. If any
payment of principal or interest becomes due on a day on which the banks in the State of New York are required or permitted by law
to remain closed, such payment may be made on the next succeeding day on which such banks are open, and such extensions shall be
included in computing interest in connection with such payment. Without limiting any of the Lender's rights and remedies hereunder, if
the entire amount of any required principal and/or interest is not paid in full within ten (10) days after the same is due, Borrower shall
pay to the Lender a late fee equal to two percent (2%) of the required payment.
The Borrower hereby expressly authorizes the Bank to record on the attached schedule the amount and date of each Loan, the rate of
interest thereon, Interest Period thereof and the date and amount of each payment of principal. All such notations shall be presumptive
as to the correctness thereof; provided, however, the failure of the Bank to make any such notation shall not limit or otherwise affect
the obligations of the Borrower under this Note.
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In consideration of the granting of the Loans evidenced by this Note, the Borrower hereby agrees as follows:
1. Loan Requests. Any request made for a Prime Loan may be made up until 11
a.m. on the date any Loan is to be made. Any request made by the Borrower for a Loan shall be extended upon the Borrower's prior
written notice to the Bank which may be accomplished by facsimile transmission; such notice to be duly executed by an authorized
member or officer of the Borrower and in a form satisfactory to the Bank.
2. Limitation on the Amount of a Loan: (a) Each Loan shall be in the principal amount of $100,000 with increase in multiples of
$50,000 thereof.
3. Prepayment.
(a) Voluntary Prepayment. Borrower may prepay any Loan at any time in whole or in part without premium or penalty. Each such
prepayment shall be made together with interest accrued thereon to and including the date of prepayment.
(b) Mandatory Prepayment. Borrower shall prepay the Loan together with all interest accrued thereon to the date of payment within 10
business days of the funding of any initial public offering of any of the stock of the Borrower.
4. Warranties and Representations. The Borrower represents and warrants that: (a) it is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation and is qualified to do business and is in good standing under the
laws of every state where its failure to so qualify would have a material and adverse effect on the business, operations, property or
other condition of the Borrower; (b) the execution issuance and delivery of this Note by the Borrower are within its corporate powers
and have been duly authorized, and the Note is valid, binding and enforceable in accordance with its terms, and is not in violation of
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law or of the terms of the Borrower's certificate, charter or operating agreement and does not result in the breach of or constitute a
default under any indenture, agreement or undertaking to which the Borrower is a party or by which it or its property may be bound or
affected; (c) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by the Borrower of this Note, except those as have been obtained; (d)
the financial statements of the Borrower heretofore furnished to the Bank are complete and correct present and fairly present, in all
material respects, the financial condition of the Borrower and its subsidiaries as at the dates thereof and for the periods covered
thereby (subject to normal year-end audit adjustment), which financial condition has not materially, adversely, changed since the date
of the most recently dated balance sheet heretofore furnished to the Bank; (e) no Event of Default (as hereinafter defined) has occurred
and no event has occurred which with the giving of notice or the lapse of time or both would constitute an Event of Default; (f) the
Borrower shall not use any part of the proceeds of any Loan to purchase or carry any margin stock within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System or
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to extend credit to others for the purpose of purchasing or carrying any margin stock; (g) there is no pending or, to the knowledge of
the Borrower, threatened action or proceeding affecting the Borrower before any court, governmental agency or arbitrator which, if
determined adversely to the Borrower would have a materially adverse effect on the financial condition or operations of the Borrower
except as described in the financial statements of the Borrower heretofore furnished to the Bank and (h) on the occasion of the granting
of each Loan all representations and warranties contained herein shall be true and correct and with the same force and effect as though
such representations and warranties had been made on and as of the date of the making of each such Loan.
5. Events of Default. Upon the occurrence of any of the following specified events of default (each an "Event of Default"): (a) default
in making any payment of principal when due, or failure to pay any interest within five days after any such interest becomes due
interest, or any other sum payable under this Note when due; or (b) default by Borrower in the due payment of any other indebtedness
for borrowed money or default by the Borrower, in any material respect, by the Borrower in the observance or performance of any
covenant or condition contained herein or in that certain letter agreement between the Borrower and the Bank dated as of September
20, 2000 (together with any and all amendments and supplements thereto, the "Commitment Letter" and the terms of which are
incorporated herein by reference) or in any other agreement or instrument evidencing, securing, or relating to any indebtedness; or (c)
any representation or warranty made by the Borrower herein or in any certificate furnished by the Borrower in connection with the
Loans evidenced hereby or pursuant to the provisions hereof, proves untrue in any material respect; or (d) the Borrower becomes
insolvent or bankrupt, is generally not paying its debts as they become due, or makes an assignment for the benefit of creditors, or a
trustee or receiver is appointed for the Borrower or for the greater part of the properties of the Borrower with the consent of the
Borrower, or if appointed without the consent of the Borrower, such trustee or receiver is not discharged within thirty (30) days, or
bankruptcy, reorganization, liquidation or similar proceedings are instituted by or against the Borrower under the laws of any
jurisdiction, and if instituted against the Borrower, are consented to by it or remain undismissed for thirty (30) days, or a writ or
warrant of attachment or similar process shall be issued against a substantial part of the property of the Borrower and shall not be
released or bonded within thirty (30) days after levy; then, in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Bank may declare the principal and accrued interest in respect of all Loans under this Note to be, whereupon
the Note shall become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower. Upon an Event of Default or after maturity or after judgment has been rendered on this Note, the
unpaid principal hereof shall, at the option of the Bank, bear interest at a rate which is four (4) percentage points per annum greater
than that which would otherwise be applicable (the "Post Default Rate").
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6. Miscellaneous.
(a) The Bank may at any time pledge all or any portion of its rights under this Note to any of the twelve (12) Federal Reserve Banks
organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank from its
obligations under any documents in connection herewith.
(b) Bank shall have the unrestricted right at any time or from time to time, and without Borrower's consent, to assign all or any portion
of its rights and obligations hereunder to one or more banks or other financial institutions (each, an "Assignee"), and Borrower agrees
that it shall execute, or cause to be executed, such documents, including without limitation, amendments to this Note and to any other
documents, instruments and agreements executed in connection herewith as Bank shall deem necessary to effect the foregoing. In
addition, at the request of Bank and any such Assignee, Borrower shall issue one or more new promissory notes, as applicable, to any
such Assignee and, if Bank has retained any of its rights and obligations hereunder following such assignment, to Bank, which new
promissory note(s) shall be issued in replacement of, but not in discharge of, the liability evidenced by the promissory note held by
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Bank prior to such assignment and shall reflect the amount of the respective commitments and loans held by such Assignee and Bank
after giving effect to such assignment. Upon the execution and delivery of appropriate assignment documentation, amendments and
any other documentation required by Bank in connection with such assignment, and the payment by Assignee of the purchase price
agreed to by Bank, and such Assignee, such Assignee shall be a party to this Note and shall have all of the rights and obligations of
Bank hereunder (and under any and all other guaranties, documents, instruments and agreements executed in connection herewith) to
the extent that such rights and obligations have been assigned by Bank pursuant to the assignment documentation between Bank and
such Assignee, and Bank shall be released from its obligations hereunder and thereunder to a corresponding extent.
(c) Bank shall have the unrestricted right at any time and from time to time, and without the consent of or notice to Borrower, to grant
to one or more banks or other financial institutions (each, a "Participant") participating interests in Bank's obligation to lend hereunder.
In the event of any such grant by Bank of a participating interest to a Participant, whether or not upon notice to Borrower, Bank shall
remain responsible for the performance of its obligations hereunder and Borrower shall continue to deal solely and directly with Bank
in connection with Bank's rights and obligations hereunder.
(d) Bank may furnish any information concerning Borrower in its possession from time to time to prospective Assignees and
Participants, provided that Bank shall require any such prospective Assignee or Participant to agree in writing to maintain the
confidentiality of such information.
(e) Borrower hereby grants to Bank, a lien, security interest and right of setoff as security for all liabilities and obligations to Bank,
whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the
possession, custody,
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safekeeping or control of Bank or any entity under the control of the Bank, or in transit to any of them. At any time on or after the
occurrence of an Event of Default and the continuation thereof beyond any grace period provided for the curing thereof, without
demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even
though unmatured and regardless of the adequacy of any other collateral securing the Note. ANY AND ALL RIGHTS TO REQUIRE
BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE NOTE, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
(f) All agreements between Borrower and Bank are hereby expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be paid to
Bank for the use or the forbearance of the indebtedness evidenced hereby exceed the maximum permissible under applicable law. As
used herein, the term "applicable law" shall mean the law in effect as of the date hereof provided, however that in the event there is a
change in the law which results in a higher permissible rate of interest, then this Note shall be governed by such new law as of its
effective date. In this regard, it is expressly agreed that it is the intent of Borrower and Bank in the execution, delivery and acceptance
of this Note to contract in strict compliance with the laws of the State of New York from time to time in effect. If, under or from any
circumstances whatsoever, fulfillment of any provision hereof or any security documentation in connection herewith at the time of
performance of such provision shall be due, shall involve transcending the limit of such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits of such validity, and if under or from any circumstances
whatsoever Bank should ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the principal balance evidenced hereby and not to the payment of interest. This
provision shall control every other provision of all agreements between Borrower and Bank.
(g) BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
BANK TO ACCEPT THIS NOTE AND MAKE THE LOANS UNDERLYING THIS NOTE.
(h) Upon receipt of an affidavit of an officer of Bank as to the loss, theft, destruction or mutilation of this Note or any other document
in connection herewith which is not of public record, and, in the case of any such loss, theft, destruction or mutilation, upon surrender
and
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cancellation of this Note or any document in connection herewith, Borrower will issue, in lieu thereof, a replacement Note or other
document in the same principal amount thereof and otherwise of like tenor.
(i) The Borrower agrees to pay on demand, all of the Bank's costs and expenses, including reasonable attorney's fees, in connection
with collection of any sums due to the Bank relating to the enforcement of its rights under this Note.
(j) The Borrower hereby waives presentment, demand for payment, notice of protest, notice of dishonor, and any and all other notices
or demands except as are otherwise expressly provided for herein.
(k) No modification or waiver of any provision of this Note shall be effective unless such modification or waiver shall be in writing
and signed by a duly authorized officer of the Bank, and the same shall then be effective only for the period and on the conditions and
for the specific instances specified in such writing. No failure or delay by the Bank in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any rights, power or privilege. This Note and any other agreements, documents and instruments executed and
delivered pursuant to or in connection with the Loans contain the entire agreement between the parties relating to the subject matter
hereof and thereof. The Borrower expressly acknowledges that the Bank has not made and the Borrower is not relying on any oral
representations, agreements or commitments of the Bank or any officer, employee, agent or representative thereof.
(l) This Note shall be deemed to have been made in the State of New York, the Borrower and the Bank each consent to the jurisdiction
of the courts of New York, and the rights and liabilities of the parties shall be determined in accordance with the laws of the State of
New York.
(m) This Note is subject to all of the terms and conditions contained in the Commitment Letter, and in any amendments or supplements
thereto, and is the "Note" referred to therein.
THE PRINCETON REVIEW, INC.
By:/s/ Stephen Melvin
Name: Stephen Melvin Title: Treasurer and Chief Financial Officer
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LOAN AND REPAYMENT SCHEDULE
PROMISSORY NOTE DATED OCTOBER , 2000
THE PRINCETON REVIEW OPERATING LLC
IN FAVOR OF EXCEL BANK, N.A.
2002. EDGAR Online, Inc.
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DATE AMOUNT OF LOAN AMOUNT OF UNPAID NOTATION
PRINCIPAL PRINCIPAL MADE BY
REPAYMENT BALANCE
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2002. EDGAR Online, Inc.
Exhibit 10.49
SECURITY AGREEMENT
In consideration of financial accommodations (arising from any guarantee, loan, advance, letter of credit, acceptance and/or other
credit transactions) given or to be given or to be continued to the undersigned (the "Debtor") or to any other party(ies) at the request,
or for the benefit, or upon the undertaking, of the Debtor by EXCEL BANK, N.A., its successors or assigns (together with its affiliates
and subsidiaries, herein called the "Bank"), the Debtor hereby agrees with the Bank as follows:
1. As collateral security for the due and punctual payment of any and all of the present and future Obligations (as defined in Section 2
below) of the Debtor to the Bank, the Debtor hereby assigns, mortgages, pledges, hypothecates, transfers, sets over and grants to the
Bank a first lien on and security interest in all of the Collateral (as defined in Section 2 below), whether now or hereafter existing or
acquired.
2. Definitions. For the purpose hereof, the following terms shall have the meanings indicated:
Agreement. This Security Agreement dated even date herewith, made by the Debtor in favor of the Bank, and in any amendments,
supplements, or modifications thereto.
Collateral. (a) All of the personal property and fixtures of the Debtor wherever located and whether now owned or in existence or
hereafter acquired or created, of every kind and description, tangible or intangible, including without limitation all inventory, goods,
equipment, farm products, instruments, documents, chattel paper, accounts, contract rights and general intangibles, such terms having
the meaning ascribed by the Uniform Commercial Code.
(b) (i) The Membership Interest in each Limited Liability Company,
(ii) any security issued to the Debtor by any Limited Liability Company in lieu of the uncertificated Membership Interest, if any, and
(iii) all income and proceeds of the foregoing.
(c) Any and all deposits or other sums at anytime credited by or due from the Bank to the Debtor; and any and all monies, securities
and other property of the Debtor, and the proceeds thereof now or hereafter held or received by or in transit to the Bank from or for the
Debtor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, shall at all times constitute security for any
and all Obligations.
(d) all replacements, substitutions and renewals for or of the foregoing and all proceeds and products of the foregoing, including
proceeds of insurance thereon.
Event of Default. Any event specified in Section 9 hereof.
Indebtedness. All sums now or hereafter owed by Debtor to Bank under Promissory Note.
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Letter Agreement. That certain Letter Agreement (the Commitment Letter) dated as of September 20, 2000 between the Debtor and
Bank with respect to the Indebtedness and in any amendments, supplements, or modifications thereto.
Limited Liability Company. Each of (i) Princeton Review Management, LLC, (ii) Princeton Review Publishing, LLC, (iii) Princeton
Review Products, LLC and (iv) Princeton Review Operations, LLC., each a Delaware Limited Liability Company, and each having its
chief executive office located at 2315 Broadway, New York, NY 10024.
Loan Documents. All agreements and undertakings made by Debtor or the Bank in connection with the Indebtedness, including the
Letter Agreement, Promissory Note , the Agreement, any guarantee and all other documents and instruments now or hereafter
furnished to Bank to evidence or secure payment of the Indebtedness or performance of the Obligations, and all amendments thereto
and modifications thereof.
Membership Interest. All right, title and interest of the Debtor in a Limited Liability Company, however defined and however
evidenced.
Obligations. All indebtedness, liabilities or obligations, absolute or contingent, joint, several or independent, of the Debtor to the Bank
now or hereafter existing, due or to become due to, or held or to be held by the Bank for its own account or as agent for another or
others, whether created directly or acquired by Agreement or otherwise and howsoever evidenced including but not limited to the
2002. EDGAR Online, Inc.
Indebtedness and any and all covenants, promises, indebtedness or other obligations of Debtor to the Bank under the Letter
Agreement, this Agreement, and/or under any other Loan Documents made and/or delivered in connection herewith or therewith.
Operating Agreement. The Operating Agreement of a Limited Liability Company dated as of June 15, 2000 and any and all
modifications and amendments thereto.
Promissory Note. The Promissory Note dated even date herewith in the principal amount of $4,500,000.00, made by the Debtor to
Bank, and in any and all extensions, renewal, substitutions or replacements thereof.
3. The Debtor hereby grants to the Bank, a lien, security interest and right of setoff as security for all liabilities and obligations to the
Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property of the Debtor, now or
hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of the Bank, or in transit to any
of them. At any time, Bank may set off the same or any part thereof and apply the same to any liability or obligation of the Debtor
regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR
OTHER PROPERTY OF THE DEBTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY
THE DEBTOR.
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4. The Debtor represents and warrants covenants and agrees that, while any Obligations or Indebtedness remain outstanding or unpaid:
(a) Except as permitted under the Letter Agreement, the Debtor is the sole owner of the Accounts (such terms having the meaning
ascribed by the Uniform Commercial Code) and no one has or claims to have an interest of any kind therein or thereto; each of the
debtors named in every Account is indebted to the Debtor in the amount and on the terms indicated in the invoice and schedule of
Accounts; each Account is bona fide and arises out of the performance of labor or services or the sale and delivery or lease of
merchandise or both.
(b) The Debtor will maintain accurate and complete records of the Accounts and will make the same available to the Bank at any time
upon two days' notice. The Bank is entitled, at any time after an Event of Default or after an event which with the giving of notice or
lapse of time or both would constitute an Event of Default, to notify the account debtors of the Debtor to make payment upon the
Accounts directly to the Bank.
(c) Except as permitted under the Letter Agreement, the Debtor has not sold, leased, transferred, created a security interest in or
otherwise pledged, encumbered or disposed of the Collateral or any part thereof;
(d) The Operating Agreement is in full force and effect, Debtor has fulfilled all its material obligations as a Member of the Limited
Liability Company; and
(e) This Agreement does not violate any terms of the Operating Agreement nor is the consent of any party, necessary to effectuate this
Agreement.
The Debtor further represents, warrants, covenants and agrees that as of the date hereof:
(f) Debtor shall promptly perform all of the terms, conditions and obligations required to be performed by Debtor pursuant to the
Operating Agreement;
(g) Debtor shall promptly notify the Bank of any default (of which Debtor has actual knowledge) by the Debtor in the performance of
any of the terms, conditions or obligations required to be performed by the Debtor pursuant to the Operating Agreement;
(h) Debtor shall give prompt written notice to the Bank of any material alteration, modification, surrender, termination or other change
to the Operating Agreement or any material term or provision thereof to which Debtor was or is not authorized to approve pursuant to
the Operating Agreement;
(i) Debtor shall promptly notify the Bank in writing of the initiation of any court, administrative or similar proceedings by or against
Debtor or the Limited Liability Company to enforce the terms of the Operating Agreement;
(j) Except as permitted under the Letter Agreement, the Debtor shall not transfer, sell, assign or otherwise convey Debtor's economic
2002. EDGAR Online, Inc.
or other interest in the Limited Liability Company;
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(k) Debtor shall provide the Bank with a true copy of all financial information with respect to the Limited Liability Company which
Debtor shall receive pursuant to the Operating Agreement, immediately after receipt by Debtor of that information and shall
immediately deliver such reports with respect to Debtor as the Bank shall request from time to time;
(l) Debtor shall notify the Bank of any substantial distribution to be made by the Limited Liability Company to the Bank thereof
immediately upon notice to Debtor of the distribution, other than specific cash flow distributions which have been scheduled and
required on stated dates under the terms of the Operating Agreement;
(m) The security interest created hereby shall continue in full force and effect until any and all Obligations and Indebtedness have been
paid and satisfied in full, and Debtor will execute any and all financing statements to evidence, perfect and continue the prior security
interest of the Bank as the Bank shall request;
(n) Except as otherwise permitted pursuant to the Loan Documents, the Debtor shall keep the Collateral free of all liens and
encumbrances, except the security interest granted hereunder, and shall not sell, lease, transfer, or create a security interest in or
otherwise dispose of or encumber the Collateral or any part thereof, and shall immediately notify the Bank of any material adverse
change in the Collateral or any occurrence which could materially and adversely affect the interests of the Bank, and of any adverse
claim or other encumbrance arising out of or with respect to the Collateral; and
(o) The Debtor shall make and continue to make all payments with respect to the Indebtedness, to the extent not made by Debtor, when
due and fulfill all of its Obligations immediately upon maturity thereof.
5. The Bank shall have no duty or obligation and shall have no right to demand, sue or make collection of any sum or benefit at any
time owing or existing for the benefit of Debtor unless and until an Event of Default (hereinafter defined) occurs. This Agreement shall
not constitute Bank a Member of the Limited Liability Company prior to reduction of the Membership Interest to ownership by Bank,
or render Bank liable in any way to any of the Members, or creditors of the Limited Liability Company or of the Limited Liability
Company for any reason whatsoever. Bank shall not be liable to Debtor or any person claiming under or through Debtor by reason of
any good faith act or omission of Bank.
6. The Debtor assumes all liability and responsibility in connection with all Collateral acquired by Debtor; and the obligation of the
Debtor to pay all Obligations shall in no way be affected or diminished by reason of the fact that any such Collateral may be lost,
destroyed or stolen.
7. As long as this Agreement shall remain in effect, the Debtor further agrees:
(a) that after an Event of Default, if the Bank so demands in writing at any time (i) all proceeds of the Collateral shall be delivered to
the Bank promptly upon their receipt in a form satisfactory to the Bank, and (ii) all chattel paper, instruments and
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documents pertaining to the Collateral shall be delivered to the Bank at the time and place and in the manner in which specified in the
Bank's demand;
(b) in order to enable the Bank to comply with the law of any jurisdiction, including state, federal and foreign, applicable to any
security interest granted hereby or to the Collateral, to execute and deliver upon request, in form acceptable to the Bank, any Financing
Statement, notice, statement, instrument, document, agreement or other paper and/or to perform any act requested by the Bank which
may be necessary to create, perfect, preserve, validate or otherwise protect such security interest or to enable the Bank to exercise and
enforce the Bank's rights hereunder or with respect to such security interest;
(c) promptly to pay any filing fees or other costs in connection with (i) the filing or recording of such Financing Statements or any
other papers described above and (ii) such searches of the public records as the Bank in its sole discretion shall require;
(d) that the Bank is authorized to file or record any such Financing Statements or other papers without the signature of the Debtor if
permitted by applicable law;
(e) the Bank may file a photographic or other reproduction of this Agreement in lieu of a Financing Statement in any filing office
2002. EDGAR Online, Inc.
where it is permissible to do so;
(f) except for the security interest granted hereby or otherwise existing on the date hereof or permitted under that certain letter
agreement dated as of September 20, 2000 between The Princeton Review, Inc, and the Bank, or otherwise agreed to by the Bank in
writing, the Debtor shall keep the Collateral and proceeds and products thereof free and clear of any security interest, liens or
encumbrances of any kind, the Debtor shall promptly pay, when due, all taxes and transportation, storage and warehousing charges and
fees affecting or arising out of the Collateral and shall defend the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein adverse to the Bank;
(g) at all times to keep all insurable Collateral insured at the expense of the Debtor of the kind and in the amounts that it is common
practice to insure such collateral against loss by fire, theft and any other risk to which the Collateral may be subject; and if the Bank
requests, all policies shall be endorsed in favor of the Bank and shall be deposited with the Bank; and in any event, such policies will
provide that each insurer will give the Bank not less than 30 days notice in writing prior to the exercise of any right of cancellation; in
the event the Debtor fails to maintain any insurance, the Bank may (but shall not be obligated to) place such insurance and pay the
premium therefor, in which event the Debtor will pay the Bank such premium with interest; the Bank may apply any proceeds of such
insurance which may be received by it toward payment of the Obligations, whether or not due, in such order of application as the Bank
may determine;
(h) that the Bank's duty with respect to the Collateral shall be solely to use reasonable care in the custody and preservation of collateral
in its possession; the Bank shall not be obligated to take any steps necessary to preserve any rights in any of the Collateral
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against prior parties, and the Debtor hereby agrees to take such steps; the Debtor shall pay to the Bank all costs and expenses,
including filing and reasonable attorney's fees, incurred by the Bank in connection with the custody, care, preservation or collection of
the Collateral; the Bank may, but is not obligated to, exercise any and all rights of conversion or exchange or similar rights, privileges
and options relating to the Collateral; the Bank shall have no obligation to sell or otherwise realize upon any of the Collateral as herein
authorized and shall not be responsible for any failure to do so or for any delay in so doing;
(i) to provide the Bank with such information as the Bank may from time to time request with respect to the location of the Collateral
and any of its places of business;
(j) that the Bank will be notified promptly in writing of any change in any office as set forth below;
(k) that the Debtor will permit the Bank, by its officers and agents, to have access to and examine at all reasonable times, upon
reasonable notice, the properties, minute books and other corporate records, and books of account and financial records of the Debtor;
(l) that the Debtor will promptly notify the Bank upon the occurrence of any default, as provided in this Agreement, of which the
Debtor has knowledge.
(m) that the Debtor will not sell, transfer, lease or otherwise dispose of any of the Collateral or any interest therein, or offer to do so or
permit anything to be done to impair the value of the Collateral or the security interest granted to the Bank, except in the ordinary
course of business or with the written consent of the Bank.
(n) In the event of the sale or disposition of any material asset of the Limited Liability Company (or liquidation thereof by any means,
including the recovery of casualty insurance proceeds not applied to restoration), or any refinancing, recasting or other disposition of
mortgages creating a lien on any material asset of the Limited Liability Company which results in a distribution of capital to the
Debtor, the Debtor will contemporaneously therewith, pay the net portion thereof to the Bank for application upon the Indebtedness
unless Debtor shall provide substitute collateral of value at least equal to the present Collateral and which substitution is subject to the
prior written consent of Bank, which consent shall not be unreasonably withheld;
(o) HEREBY WITH THE BANK TO MUTUALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS SECURITY AGREEMENT ANY OBLIGATION SECURED HEREBY OR ANY OTHER
AGREEMENT IN CONNECTION HEREWITH, OR ANY OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
THE BANK TO MAKE LOANS FROM TIME TO TIME.
2002. EDGAR Online, Inc.
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8. (a) Upon the occurrence of an Event of Default as defined in
Section 8 hereof, the Debtor agrees as follows: (i) the Debtor will not, without first obtaining the written consent of the Bank, renew or
extend the time of payment of any Account; (ii) the Debtor will promptly notify the Bank in writing of any compromise, settlement or
adjustment with respect to an Account and will forthwith account therefor to the Bank in cash for the amount thereof without demand
or notice; (iii) the Debtor will stamp, in form and manner satisfactory to the Bank, its accounts receivable ledger and other books and
records pertaining to the Accounts, with an appropriate reference to the security interest of the Bank in the Accounts; (iv) upon
request, the Debtor will furnish the Bank original or other papers relating to the performance of services which created any Account;
(v) the Debtor may collect the Accounts, subject to the discretion and control of the Bank, but the Bank may, without cause or notice,
curtail or terminate such authority at any time; (vi) the proceeds of the Accounts, when collected by the Debtor, whether consisting of
cash, checks, notes, drafts, money orders, commercial paper of any kind whatsoever, or other documents, received in payment of the
Accounts shall be promptly remitted by the Debtor to the Bank, in precisely the form received, except for endorsement by the Debtor
when required; (vii) such proceeds until remitted to the Bank, as aforesaid, shall be held in trust by the Debtor for, and as the property
of, the Bank and shall not be commingled with other funds, money or property; (viii) proceeds of the Accounts will be received by the
Bank subject to final collection and receipt of proceeds in cash or by unconditional credit to and acceptance by the Bank; (ix) the Bank
shall apply in its absolute discretion all collections received by it on the Accounts, toward the payment of any of the Obligations
whether due or not due; (x) the Debtor will promptly notify the Bank in writing of the return or rejection of any merchandise
represented by the Accounts and the Debtor shall forthwith account therefor to the Bank in cash without demand or notice and until
such payment has been received by the Bank, the Debtor will receive and hold all such merchandise separate and apart, in trust for and
subject to the security interest in favor of the Bank; and (xi) the Bank is authorized to sell, for the Debtor's account and sole risk, all or
any part of such merchandise in the manner and under the terms and conditions hereinafter set forth.
9. Upon the occurrence of an event of default under the Obligations, or a breach of any covenants or agreements contained in any
promissory note, guarantee or agreement relating thereto (an "Event of Default"), (a) all Obligations shall become at once due and
payable, without notice, presentment, demand for payment or protest, which are hereby expressly waived; (b) the Bank is authorized to
take possession of the Collateral and, for that purpose may enter, with the aid and assistance of any person or persons, any premises
where the Collateral, or any part thereof is, or may be, placed and remove same; (c) the Bank may proceed to apply to the Obligations,
any and all deposits or other sums described in Section 4 hereof; (d) the Bank may require the Debtor to assemble the Collateral and to
make it available to the Bank at a place designated by the Bank which is reasonably convenient to the Bank and the Debtor; (e) the
Bank shall have the right from time to time to sell, resell, assign, transfer and deliver all or any part of the Collateral, at any broker's
board or exchange, or at public or private sale or otherwise, at the option of the Bank, for cash or on credit for future delivery, in such
parcel or parcels and at such time or times and at such place or places, and upon such terms and conditions as the Bank may deem
proper, and in connection therewith may grant options and may impose reasonable conditions such as requiring any purchaser to
represent that any stock constituting part of the Collateral is being purchased for investment purposes only, all without (except as shall
be required by applicable statute and cannot be waived) advertisement or demand upon the Debtor or right of redemption to the
Debtor, which are hereby expressly waived: unless the Collateral is perishable or threatens to decline speedily in
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value or is of a type customarily sold on a recognized market, the Bank will give the Debtor reasonable notice of the time and place of
any such public sale or of the time after which any private sale or any other intended disposition thereof is to be made and Debtor
agrees that five (5) days prior written notice shall be deemed reasonable notice; (f) upon each such sale, the Bank may, unless
prohibited by applicable statute which cannot be waived, purchase all or any part of the Collateral being sold, free from and discharged
of all trusts, claims, rights of redemption and equities of the Debtor, which are hereby waived and released; (g) the Bank shall, upon
mailing notice to the Debtor that it so elects, have from the date of such mailing the right from time to time to vote any shares of stock
securing any of the Obligations; provided, however, the Bank at any time, before or after the occurrence of any Event of Default, may,
but shall not be obligated to, transfer into or out of its own name or that of its nominee all or any of the Collateral which is instruments,
stocks, bonds, and other securities, and the Bank or its nominee may demand, sue for, collect, receive and hold as like Collateral any
or all interest, dividends and income thereon and if any securities are held in the name of the Bank or its nominee, the Bank may, after
the occurrence of any such events, exercise all voting and other rights pertaining thereto as if the Bank were the absolute owner
thereof; but the Bank shall not be obligated to demand payment of, protest, or take any steps necessary to preserve any rights in any
such Collateral against prior parties, or take any action whatsoever in regard to any such Collateral, all of which the Debtor assumes
and agrees to do. Without limiting the generality of the foregoing, the Bank shall not be obligated to take any action in connection with
any conversion, call, redemption, retirement or any other event relating to any of such Collateral, unless the Debtor gives written
notice to the Bank that such action shall be taken not more than thirty (30) days prior to the time such action may first be taken and not
less than ten (10) days prior to the expiration of the time during which such action may be taken; (h) the Bank's obligations, if any, to
give additional (or to continue) financial accommodations of any kind to the Debtor shall immediately terminate; and (i) in addition to
the rights and remedies given to the Bank hereunder or otherwise, the Bank shall have all of the rights and remedies of a secured party
2002. EDGAR Online, Inc.
under the Uniform Commercial Code of the State of New York.
10. In the case of each such sale or of any proceedings to collect any of the Obligations, the Debtor shall pay all costs and expenses of
every kind for collection, sale or delivery, including reasonable attorneys fees, and after deducting such costs and expenses from the
proceeds of sale or collection, the Bank may apply any residue to pay any of the Obligations and the Debtor will continue to be liable
to the Bank for any deficiency with interest.
11. The Bank may, but is not obligated to, (a) demand, sue for, collect or receive any money or property at any time due, payable or
receivable on account of or in exchange for any obligations securing any of the Obligations; (b) compromise and settle with any person
liable on such obligation, and/or (c) extend the time of payment of or otherwise change the terms thereof, as to any party liable
thereon; all without incurring responsibility to the undersigned or affecting any of the Obligations.
12. In order to effectuate the terms and provisions hereof, the Debtor hereof designates and appoints the Bank and its designees or
agents, after an Event of Default, as attorney-in-fact of the Debtor, irrevocably and with power of substitution, with authority to
receive, open and dispose of all mail addressed to the Debtor, to notify the Post Office authorities to change the address for delivery of
mail addressed to the Debtor to such address as the Bank may designate;
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to endorse the name of the Debtor on any notes, acceptances, checks, drafts, money orders, instruments or other evidence of payment
or proceeds of the Collateral that may come into the Bank's possession to sign the name of the Debtor on any invoices, documents,
drafts against and notices (which also may direct among other things that payment be made directly to the Bank) to Account debtors or
obligors of the Debtor, Agreements and requests for verification of Accounts; to execute proofs of claim and loss; to execute any
endorsements, Agreements, or other instruments of conveyance or transfer, to adjust and compromise any claims under insurance
policies; to execute releases; and to do all other acts and things necessary and advisable in the sole discretion of the Bank to carry out
and enforce this Agreement. All acts of said attorney or designee are hereby ratified and approved and said attorney or designee shall
not be liable for any acts of commission of omission, nor or any error of judgment or mistake of fact or law. This power of attorney
being coupled with an interest is irrevocable while any of the Obligations shall remain unpaid.
13. All options, powers and rights granted to the Bank hereunder or under any promissory note, instrument, document or other writing
delivered to the Bank shall be cumulative and shall be in addition to any other options, powers or rights which the Bank may now or
hereafter have as a secured party under the Uniform Commercial Code of the State of New York or under any other applicable law or
otherwise.
14. No delay on the part of the Bank in exercising any of its options, powers, or rights, or partial or single exercise thereof, shall
constitute a waiver thereof. Neither this Agreement nor any provision hereof may be modified, changed, waived, discharged or
terminated orally, but only by an instrument in writing, signed by the party against whom enforcement of the modification, change,
waiver, discharge or termination is sought.
15. Notice of acceptance of this Agreement by the Bank is hereby waived. This Agreement shall be immediately binding upon the
Debtor and its successors and assigns, whether or not the Bank signs this Agreement.
16. It is the intention of the parties (a) that this Agreement shall constitute a continuing agreement applying to any and all future, as
well as existing transactions between the Debtor and the Bank; and (b) that the security interest provided for herein shall attach to
after-acquired as well as existing Collateral, and the Obligations covered by this Agreement shall include future advances and other
value, as well as existing advances and other value, whether or not similar to prior or existing advances or other value, and whether or
not the advances or value are or shall be given pursuant to commitment, all to the maximum extent permitted by the Uniform
Commercial Code of the State of New York.
17. Unless the context otherwise requires, all terms used herein which are defined in the Uniform Commercial Code of the State of
New York shall have the meanings therein stated.
18. If this Agreement is signed by two or more parties as Debtors, they shall be jointly and severally liable hereunder and the term
"Debtor" wherever used in this Agreement shall mean the parties who have signed this Agreement and each of them.
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19. Mailing Address of Debtor. For the purpose of Section 9.402(1) of the Uniform Commercial Code, the address of the Debtor
specified below under the caption "Chief Executive Office" (or "Major Executive Office" address whenever the Chief Executive
2002. EDGAR Online, Inc.
Office is located outside of the United States) may be designated as the Debtor's mailing address.
20. This Agreement shall be construed in accordance with and be governed by the law of the State of New York.
21. Debtor will, at the cost of Debtor, and without expense to Bank, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, Agreements, notices of Agreements, transfers and assurances as Bank shall, from time to time, require, for
the better assuring, conveying, assigning, transferring and confirming unto Bank the property and rights hereby given, granted,
bargained, sold, alienated, conveyed, confirmed, pledged, assigned and hypothecated or intended now or hereafter so to be, or which
Debtor may be or may hereafter become bound to convey or assign to Bank, or for carrying out the intention or facilitating the
performance of the terms of this Agreement or for filing, registering or recording this Agreement and, on demand, will execute and
deliver and hereby authorizes Bank to execute in the name of Debtor or without the signature of Debtor to the extent Bank may
lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments, to evidence more effectively
the lien hereof. Debtor grants to Bank an irrevocable power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights available to Bank at law and in equity.
22. Upon the indefeasible payment in full of all Obligations, if request to do so by the Debtor, the security interest granted hereby shall
be terminated and the Bank shall, at Debtor's request, execute and deliver to Debtor such documents as Debtor shall reasonably
request.
IN WITNESS WHEREOF, the Debtor has executed this Agreement or has caused these presents to be executed and delivered by its
proper corporate officer or officers and caused its proper corporate seal to be hereto affixed, this 27th day of October, 2000.
THE PRINCETON REVIEW, INC.
By:/s/ Stephen Melvin
___________________________________________
Name: Stephen Melvin
Title: Treasurer and Chief Financial
Officer
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STATE OF NEW YORK )
)
SS.:
COUNTY OF NEW YORK )
On the 27th day of October in the year 2000 before me, the undersigned, a Notary Public in and for said State, personally appeared
Stephen Melvin, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
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Exhibit 10.50
GUARANTY
2002. EDGAR Online, Inc.
New York, New York
October 27, 2000
In consideration of any and all loans, advances, acceptances, discounts and extensions of credit made by EXCEL BANK, N.A. , a
national banking association organized and existing under the laws of the United States of America, with an office at 400 Park Avenue,
New York, New York 10022 (the "Bank" or the "Lender"), to, for the account of, or on behalf of THE PRINCETON REVIEW, INC.
a New York corporation (the "Borrower"), the undersigned (the "Guarantor") hereby absolutely and unconditionally guarantees to the
Lender the punctual payment in full of that certain indebtedness of the Borrower to the Lender, including but not limited to the
principal, interest and all other sums and amounts due and to become due from the Borrower to the Lender, under and pursuant to that
certain promissory note dated October 27, 2000 in the principal amount of $4,500,000.00 due October 31, 2001, and in any
substitutions, replacements, extensions or renewal thereof and under or pursuant to the terms of any agreement, assignment or other
document, instrument or writing executed and delivered to the Lender with respect thereto (all of which obligations, indebtedness and
liabilities are hereinafter referred to individually as an "Obligation" and collectively as the "Obligations").
Except for being entitled to notice (incorporating a five day cure period) of a non-payment default (susceptible to a 5 day cure) under
the Obligations, the Guarantor hereby expressly waives the following: notice of the incurring of indebtedness by the Borrower;
presentment and demand for payment, protest, notice of protest and notice of dishonor or non-payment of any instrument evidencing
Obligations of the Borrower; any right to require suit against the Borrower or any other party before enforcing this Guaranty; any right
to have security applied before enforcing this Guaranty; notice of acceptance of this Guaranty; notice of any default hereunder or
under any agreement evidencing any of the Obligations; all other notices and demands otherwise required by law which the Guarantor
may lawfully waive; and any right of subrogation to the Lender's rights against the Borrower until the Borrower' Obligations are paid
in full. The Guarantor hereby expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further
assent of the Guarantor, and without in any way releasing, affecting or impairing the obligations and liabilities of the Guarantor
hereunder: (i) waive compliance with, or any default under, or grant any other indulgences with respect to, any of the Obligations or
any agreement or instrument securing any of the Obligations; (ii) modify, amend or change any provisions of any of the Obligations;
(iii) grant extensions or renewals of or with respect to any of the Obligations, and/or effect any release, compromise or settlement in
connection therewith; (iv) agree to the substitution, exchange, release or other disposition of all or any part of the collateral at any time
securing any Obligation; (v) make advances for the purposes of performing any term or covenant contained in any agreement
evidencing any of the Obligations or any instrument or agreement securing the Obligations, with respect to which the Borrower shall
be in default; (vi) assign or otherwise transfer any agreement evidencing any of the Obligations and any instrument or agreement
securing the Obligations,
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including, without limitation, this Guaranty, or any interest therein; and (vii) deal in all respects with the Borrower as if this Guaranty
were not in effect. The obligations of the Guarantor under this Guaranty shall be unconditional, irrespective of the genuineness,
validity, regularity or enforceability of any agreement evidencing any of the Obligations or any other circumstances which might
otherwise constitute a legal or equitable discharge of a surety or guarantor. As further consideration for the loan or loans by Lender to
Borrower and as a material inducement to Lender to make the loan or loans and accept this Guaranty, Guarantor hereby irrevocably
waives, disclaims and relinquishes all claims, whether based in equity or law, whether by contract, statute or otherwise, that Guarantor
might now or hereafter have against Borrower or any other person that is primarily or contingently liable on the Obligations guarantied
hereby or that arise from the existence or performance of Guarantor's obligations under this Guaranty, including, but not limited to,
any right of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any claim or remedy of the
Borrower against Lender or any collateral security that Lender now has or hereafter acquires.
The liability of the Guarantor under this Guaranty shall be primary, direct and immediate and not conditional or contingent upon
pursuit by the Lender of any remedies it may have against the Borrower or any other party with respect to the Obligations or any
instrument or agreement securing the Obligations, whether pursuant to the terms thereof or otherwise. No exercise or nonexercise by
the Lender of any right given to it hereunder or under any agreement evidencing any of the Obligations or any instrument or agreement
securing any of the Obligations, and no change, impairment or suspension of any right or remedy of the Lender shall in any way affect
any of the Guarantor's obligations hereunder or give the Guarantor any recourse against the Lender. Without limiting the generality of
the foregoing, the Lender shall not be required to make any demand on the Borrower and/or any other party, or otherwise pursue or
exhaust its remedies against the Borrower or any other party, before, simultaneously with or after, enforcing its rights and remedies
hereunder against the Guarantor. Any one or more successive and/or concurrent actions may be brought hereon against the Guarantor
either in the same action, if any, brought against the Borrower and/or any other party, or in separate actions, as often as any holder of
an Obligation, in its sole discretion, may deem advisable. Any action brought on this Guaranty with respect to one or more Obligations
shall not prevent the commencement of subsequent or separate actions with respect to any other Obligations.
Any notice, demand, request or other communication given hereunder or in connection herewith (hereinafter "Notices") shall be
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deemed sufficient if in writing and sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party
to receive such Notice at its address set forth in this Guaranty or at such other address as such party may hereafter designate by Notice
given in like fashion. Notices shall be deemed given when mailed.
Any payments made by the Guarantor under the provisions of this Guaranty shall be made to the Lender at its principal office at its
address first set forth above, unless some other address is hereafter designated by the Lender.
All rights and remedies afforded to the Lender by reason of this Guaranty or by law are separate
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and cumulative and the exercise of one shall not in any way limit or prejudice the exercise of any other such rights or remedies. No
delay or omission by the Lender in exercising any such right or remedy shall operate as a waiver thereof. No waiver of any rights or
remedies hereunder, and no modification or amendment hereof, shall be deemed made by the Lender unless in writing and duly
executed. Any such written waiver shall apply only to the particular instance specified therein and shall not impair the further exercise
of such right or remedy or of any other right or remedy of the Lender, and no single or partial exercise of any right or remedy
hereunder shall preclude further exercise of any other right or remedy.
The obligation of the Guarantor to make payment in accordance with the terms of this Guaranty shall not be impaired, modified,
changed, released or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability
of the Borrower or its respective estates in bankruptcy or reorganization resulting from the operation of any present or future provision
of Title 11 of the United States Code or other statute or from the decision of any court. The obligations of the Guarantor hereunder
shall survive any judgment, order, or decree subordinating or voiding in whole or in part the obligations of either Borrower to the
Lender and shall extend to the repayment of any sums recovered from the Lender on any basis (including any provision of Chapter 5 of
Title 11, United States Code) either before or after satisfaction in full by either Borrower of its obligations to the Lender.
In the event that a petition in bankruptcy or for an arrangement or reorganization of, or for an order for relief with respect to, the
Borrower under the bankruptcy laws or for the appointment of a receiver for the Borrower or any of its property is filed by or against
either of the Borrower, or if the Borrower shall make an assignment for the benefit of creditors or shall become insolvent, or if a
default shall occur under or with respect to any of the Obligations, all indebtedness of the Borrower shall, for the purpose of this
Guaranty, be deemed at the Lender's election to have become immediately due and payable.
The Guarantor further agrees to pay the Lender any and all costs, expenses and reasonable attorneys' fees paid or incurred by the
Lender in collecting or endeavoring to collect the indebtedness of the Borrower or in enforcing or endeavoring to enforce this
Guaranty. All accounts, deposits, and property of the Guarantor with or in the hands of the Lender shall be and stand pledged as
collateral security for the indebtedness of the Guarantor to the Lender, and the Lender shall have the same right of setoff with respect
to deposits and other credits of the Guarantor as the Lender may have with respect to deposits and other credits of the Borrower.
This Guaranty shall operate as an irrevocable and continuing guaranty of all obligations, liabilities and indebtedness of the Borrower
to the Bank.
The Guarantor, to the extent that he may lawfully do so, hereby submits to the jurisdiction of the courts of the State of New York and
the United States District Court for the Southern District of New York; as well as to the jurisdiction of all courts from which an appeal
may be taken from the aforesaid courts, for the purpose of any suit, action or other proceeding arising out of any of the Guarantor's
obligations under or with respect to this Guaranty, and expressly waives any and all
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objections he may have as to venue in any of such courts. THE GUARANTOR AND THE LENDER MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, THE LINE OR ANY
OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY.
Guarantor hereby grants to Bank, a lien, security interest and right of setoff as security for all liabilities and obligations to Bank,
whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Bank or any entity under the control of the Bank, or in transit to any of them. At any
time without demand or notice (after an Event of Default or an event which with the giving of notice or the lapse of time or both would
constitute an Event of Default, Bank may set off the same or any part thereof and apply the same to any liability or obligation of
2002. EDGAR Online, Inc.
Guarantor regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE
BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR
OTHER PROPERTY OF THE GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
This Guaranty shall be governed by and construed in accordance with the laws of the State of New York.
This Guaranty shall be binding upon the Guarantor and her heirs, executors, administrators and assigns, and shall inure to the benefit
of the Lender and its successors and assigns. The terms "Guarantor" and "Borrower" and any pronouns referring thereto as used herein
shall be construed in the masculine, feminine, neuter, singular or plural as the context may require.
IN WITNESS WHEREOF, this Guaranty has been executed and delivered to the Lender by the undersigned Guarantor as of the date
first above written.
WITNESS/ATTEST:
By:_______________________________________________
Name: Stephen Melvin
Title: Treasurer and Chief Financial Officer
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STATE OF NEW YORK )
)
SS.:
COUNTY OF NEW YORK )
On the 27th day of October in the year 2000 before me, the undersigned, a Notary Public in and for said State, personally appeared
Stephen Melvin, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
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Exhibit 10.51
SECURITY AGREEMENT
(Subsidiary)
In consideration of financial accommodations (arising from any guarantee, loan, advance, letter of credit, acceptance and/or other
credit transactions) given or to be given or to be continued to the undersigned (the "Debtor") or to any other party(ies) at the request,
or for the benefit, or upon the undertaking, of the Debtor by EXCEL BANK, N.A., its successors or assigns (together with its affiliates
and subsidiaries, herein called the "Bank"), the Debtor hereby agrees with the Bank that, whenever the Debtor shall be at any time or
times directly or contingently indebted, liable or obligated to the Bank in any manner whatsoever, the Bank shall have the following
rights and the Debtor shall have the following obligations:
1. As security for the due and punctual payment of any and all of the present and future Obligations of the Debtor (as defined in
Section 2 below), the Debtor hereby assigns, mortgages, pledges, hypothecates, transfers, sets over and grants to the Bank a first lien
on and security interest in (a) all of the Collateral (as defined in Section 3 below), whether now or hereafter existing or acquired, and
(b) all present and future products and proceeds of the Collateral.
2. As used herein, the term "Obligations" means all indebtedness, liabilities or obligations, absolute or contingent, joint, several or
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independent, of the Debtor now or hereafter existing, due or to become due to, or held or to be held by, the Bank for its own account
or as agent for another or others, whether created directly or acquired by assignment or otherwise and howsoever evidenced.
3. As used herein, the term "Collateral" means the property described below together with the property described in Section 4 below:
All Personal Property. All of the personal property and fixtures of the Debtor wherever located and whether now owned or in existence
or hereafter acquired or created, of every kind and description, tangible or intangible, including without limitation all inventory, goods,
equipment, farm products, instruments, documents, chattel paper, accounts, contract rights and general intangibles, such terms having
the meaning ascribed by the Uniform Commercial Code.
The Collateral shall include, without limitation:
a. all collateral securing the foregoing, and all guarantees and any other instruments, agreements or documents now or hereafter in
existence relating to the foregoing (but in each case only to the extent representing the right to payment); and
b. all replacements, substitutions and renewals for or of the foregoing and all proceeds and products of the foregoing, including
proceeds of insurance thereon;
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In the event that (i) in addition to this Security Agreement the Debtor is a party to one or more other security, pledge or similar
agreements providing for a security interest in personal property in favor of the Bank (collectively the "Other Collateral Agreements"),
and (ii) the collateral described in this Agreement and the Other Collateral Agreements is not the same, then, in such event, this
Agreement and the Other Collateral Agreements shall be read together as one agreement such that the Obligations shall be deemed
secured by the collateral described in each of such agreements. Notwithstanding the foregoing, Collateral shall not include any
particular personal property of Debtor to the extent that the granting of a security interest in such personal property requires third party
consent which has not been obtained; provided that Debtor agrees to use reasonable efforts to obtain such consent at the request of the
Bank..
4. Any and all deposits or other sums at anytime credited by or due from the Bank to the Debtor; and any and all monies, securities and
other property of the Debtor, and the proceeds thereof now or hereafter held or received by or in transit to the Bank from or for the
Debtor, whether for safekeeping, custody, pledge, transmission, collection or otherwise, shall at all times constitute security for any
and all Obligations.
The Debtor hereby grants to the Bank, a lien, security interest and right of setoff as security for all liabilities and obligations to the
Bank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property of the Debtor, now or
hereafter in the possession, custody, safekeeping or control of the Bank or any entity under the control of the Bank, or in transit to any
of them. At any time, Bank may set off the same or any part thereof and apply the same to any liability or obligation of the Debtor
regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR
OTHER PROPERTY OF THE DEBTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY
THE DEBTOR.
5. The Debtor assumes all liability and responsibility in connection with all Collateral acquired by Debtor; and the obligation of the
Debtor to pay all Obligations shall in no way be affected or diminished by reason of the fact that any such Collateral may be lost,
destroyed or stolen.
6. As long as this Agreement shall remain in effect, the Debtor agrees:
(a) that after an Event of Default, if the Bank so demands in writing at any time (i) all proceeds of the Collateral shall be delivered to
the Bank promptly upon their receipt in a form satisfactory to the Bank, and (ii) all chattel paper, instruments and documents
pertaining to the Collateral shall be delivered to the Bank at the time and place and in the manner in which specified in the Bank's
demand;
(b) in order to enable the Bank to comply with the law of any jurisdiction,
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including state, federal and foreign, applicable to any security interest granted hereby or to the Collateral, to execute and deliver upon
request, in form acceptable to the Bank, any Financing Statement, notice, statement, instrument, document, agreement or other paper
and/or to perform any act requested by the Bank which may be necessary to create, perfect, preserve, validate or otherwise protect
such security interest or to enable the Bank to exercise and enforce the Bank's rights hereunder or with respect to such security interest;
(c) promptly to pay any filing fees or other costs in connection with (i) the filing or recordation of such Financing Statements or any
other papers described above and (ii) such searches of the public records as the Bank in its sole discretion shall require;
(d) that the Bank is authorized to file or record any such Financing Statements or other papers without the signature of the Debtor if
permitted by applicable law;
(e) the Bank may file a photographic or other reproduction of this Agreement in lieu of a Financing Statement in any filing office
where it is permissible to do so;
(f) except for the security interest granted hereby or otherwise existing on the date hereof or permitted under that certain letter
agreement dated as of September 20, 2000 between The Princeton Review, Inc, and the Bank, or otherwise agreed to by the Bank in
writing, the Debtor shall keep the Collateral and proceeds and products thereof free and clear of any security interest, liens or
encumbrances of any kind, the Debtor shall promptly pay, when due, all taxes and transportation, storage and warehousing charges and
fees affecting or arising out of the Collateral and shall defend the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein adverse to the Bank;
(g) at all times to keep all insurable Collateral insured at the expense of the Debtor of the kind and in the amounts that it is common
practice to insure such collateral against loss by fire, theft and any other risk to which the Collateral may be subject; and if the Bank
requests, all policies shall be endorsed in favor of the Bank and shall be deposited with the Bank; and in any event, such policies will
provide that each insurer will give the Bank not less than 30 days notice in writing prior to the exercise of any right of cancellation; in
the event the Debtor fails to maintain any insurance, the Bank may (but shall not be obligated to) place such insurance and pay the
premium therefor, in which event the Debtor will pay the Bank such premium with interest; the Bank may apply any proceeds of such
insurance which may be received by it toward payment of the Obligations, whether or not due, in such order of application as the Bank
may determine;
(h) that the Bank's duty with respect to the Collateral shall be solely to use reasonable care in the custody and preservation of collateral
in its possession; the Bank shall not be obligated to take any steps necessary to preserve any rights in any of the Collateral against prior
parties, and the Debtor hereby agrees to take such steps; the Debtor shall pay to
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the Bank all costs and expenses, including filing and reasonable attorney's fees, incurred by the Bank in connection with the custody,
care, preservation or collection of the Collateral; the Bank may, but is not obligated to, exercise any and all rights of conversion or
exchange or similar rights, privileges and options relating to the Collateral; the Bank shall have no obligation to sell or otherwise
realize upon any of the Collateral as herein authorized and shall not be responsible for any failure to do so or for any delay in so doing;
(i) to provide the Bank with such information as the Bank may from time to time request with respect to the location of the Collateral
and any of its places of business;
(j) that the Bank will be notified promptly in writing of any change in any office as set forth below;
(k) that the Debtor will permit the Bank, by its officers and agents, to have access to and examine at all reasonable times, upon
reasonable notice, the properties, minute books and other corporate records, and books of account and financial records of the Debtor;
(l) that the Debtor will promptly notify the Bank upon the occurrence of any default, as provided in this Agreement, of which the
Debtor has knowledge.
(m) that the Debtor will not sell, transfer, lease or otherwise dispose of any of the Collateral or any interest therein, or offer to do so or
permit anything to be done to impair the value of the Collateral or the security interest granted to the Bank, except in the ordinary
course of business or with the written consent of the Bank.
(n) HEREBY WITH THE BANK TO MUTUALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS SECURITY AGREEMENT ANY OBLIGATION SECURED HEREBY OR ANY OTHER
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AGREEMENT IN CONNECTION HEREWITH, OR ANY OTHER DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
THE BANK TO MAKE LOANS FROM TIME TO TIME.
7. (a) Upon the occurrence of an Event of Default as defined in
Section 8 hereof, the Debtor agrees as follows: (i) the Debtor will not, without first obtaining the written consent of the Bank, renew or
extend the time of payment of any Account; (ii) the Debtor will promptly notify the Bank in writing of any compromise, settlement or
adjustment with respect to an Account and will forthwith account therefor to the Bank in cash for the amount thereof without demand
or notice; (iii) the Debtor will stamp, in form and manner satisfactory to the Bank, its accounts receivable ledger and other books and
records pertaining to the Accounts, with an appropriate reference to the security interest of the Bank in the
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Accounts; (iv) upon request, the Debtor will furnish the Bank original or other papers relating to the performance of services which
created any Account; (v) the Debtor may collect the Accounts, subject to the discretion and control of the Bank, but the Bank may,
without cause or notice, curtail or terminate such authority at any time; (vi) the proceeds of the Accounts, when collected by the
Debtor, whether consisting of cash, checks, notes, drafts, money orders, commercial paper of any kind whatsoever, or other
documents, received in payment of the Accounts shall be promptly remitted by the Debtor to the Bank, in precisely the form received,
except for endorsement by the Debtor when required; (vii) such proceeds until remitted to the Bank, as aforesaid, shall be held in trust
by the Debtor for, and as the property of, the Bank and shall not be commingled with other funds, money or property; (viii) proceeds
of the Accounts will be received by the Bank subject to final collection and receipt of proceeds in cash or by unconditional credit to
and acceptance by the Bank; (ix) the Bank shall apply in its absolute discretion all collections received by it on the Accounts, toward
the payment of any of the Obligations whether due or not due; (x) the Debtor will promptly notify the Bank in writing of the return or
rejection of any merchandise represented by the Accounts and the Debtor shall forthwith account therefor to the Bank in cash without
demand or notice and until such payment has been received by the Bank, the Debtor will receive and hold all such merchandise
separate and apart, in trust for and subject to the security interest in favor of the Bank; and (xi) the Bank is authorized to sell, for the
Debtor's account and sole risk, all or any part of such merchandise in the manner and under the terms and conditions hereinafter set
forth.
(b) The Debtor represents and warrants to the Bank that the Debtor is the sole owner of the Accounts and no one has or claims to have
an interest of any kind therein or thereto; each of the debtors named in every such Account is indebted to the Debtor in the amount and
on the terms indicated in the invoice and schedule of Accounts; each Account is bona fide and arises out of the performance of labor
or services or the sale and delivery or lease of merchandise or both; and none of the Accounts is now, nor will at any time in the future
become, contingent upon the fulfillment of any contract or conditions whatsoever, nor subject to any defense, offset or counterclaim.
(c) The Debtor will maintain accurate and complete records of the Accounts and will make the same available to the Bank at any time
upon two days' notice. The Bank is entitled, at any time after an Event of Default or after an event which with the giving of notice or
lapse of time or both would constitute an Event of Default, to notify the account debtors of the Debtor to make payment upon the
Accounts directly to the Bank.
8. Upon the occurrence of an event of default under the Obligations, or a breach of any covenants or agreements contained in any
promissory note, guarantee or agreement relating thereto (an "Event of Default"), (a) all Obligations shall become at once due and
payable, without notice, presentment, demand for payment or protest, which are hereby expressly waived; (b) the Bank is authorized to
take possession of the Collateral and, for that purpose may enter, with the aid and assistance of any person or persons, any premises
where the Collateral, or any part thereof is, or may be, placed and remove same; (c) the Bank may proceed to apply to the
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Obligations, any and all deposits or other sums described in Section 4 hereof;
(d) the Bank may require the Debtor to assemble the Collateral and to make it available to the Bank at a place designated by the Bank
which is reasonably convenient to the Bank and the Debtor; (e) the Bank shall have the right from time to time to sell, resell, assign,
transfer and deliver all or any part of the Collateral, at any broker's board or exchange, or at public or private sale or otherwise, at the
option of the Bank, for cash or on credit for future delivery, in such parcel or parcels and at such time or times and at such place or
places, and upon such terms and conditions as the Bank may deem proper, and in connection therewith may grant options and may
impose reasonable conditions such as requiring any purchaser to represent that any stock constituting part of the Collateral is being
purchased for investment purposes only, all without
(except as shall be required by applicable statute and cannot be waived) advertisement or demand upon the Debtor or right of
redemption to the Debtor, which are hereby expressly waived: unless the Collateral is perishable or threatens to decline speedily in
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value or is of a type customarily sold on a recognized market, the Bank will give the Debtor reasonable notice of the time and place of
any such public sale or of the time after which any private sale or any other intended disposition thereof is to be made and Debtor
agrees that five
(5) days prior written notice shall be deemed reasonable notice; (f) upon each such sale, the Bank may, unless prohibited by applicable
statute which cannot be waived, purchase all or any part of the Collateral being sold, free from and discharged of all trusts, claims,
rights of redemption and equities of the Debtor, which are hereby waived and released; (g) the Bank shall, upon mailing notice to the
Debtor that it so elects, have from the date of such mailing the right from time to time to vote any shares of stock securing any of the
Obligations; provided, however, the Bank at any time, before or after the occurrence of any Event of Default, may, but shall not be
obligated to, transfer into or out of its own name or that of its nominee all or any of the Collateral which is instruments, stocks, bonds,
and other securities, and the Bank or its nominee may demand, sue for, collect, receive and hold as like Collateral any or all interest,
dividends and income thereon and if any securities are held in the name of the Bank or its nominee, the Bank may, after the occurrence
of any such events, exercise all voting and other rights pertaining thereto as if the Bank were the absolute owner thereof; but the Bank
shall not be obligated to demand payment of, protest, or take any steps necessary to preserve any rights in any such Collateral against
prior parties, or take any action whatsoever in regard to any such Collateral, all of which the Debtor assumes and agrees to do. Without
limiting the generality of the foregoing, the Bank shall not be obligated to take any action in connection with any conversion, call,
redemption, retirement or any other event relating to any of such Collateral, unless the Debtor gives written notice to the Bank that
such action shall be taken not more than thirty (30) days prior to the time such action may first be taken and not less than ten (10) days
prior to the expiration of the time during which such action may be taken; (h) the Bank's obligations, if any, to give additional (or to
continue) financial accommodations of any kind to the Debtor shall immediately terminate; and (i) in addition to the rights and
remedies given to the Bank hereunder or otherwise, the Bank shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code of the State of New York.
9. In the case of each such sale or of any proceedings to collect any of the Obligations, the Debtor shall pay all costs and expenses of
every kind for collection, sale or delivery, including
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reasonable attorneys fees, and after deducting such costs and expenses from the proceeds of sale or collection, the Bank may apply any
residue to pay any of the Obligations and the Debtor will continue to be liable to the Bank for any deficiency with interest.
10. The Bank may, but is not obligated to, (a) demand, sue for, collect or receive any money or property at any time due, payable or
receivable on account of or in exchange for any obligations securing any of the Obligations; (b) compromise and settle with any person
liable on such obligation, and/or (c) extend the time of payment of or otherwise change the terms thereof, as to any party liable
thereon; all without incurring responsibility to the undersigned or affecting any of the Obligations.
11. In order to effectuate the terms and provisions hereof, the Debtor hereof designates and appoints the Bank and its designees or
agents, after an Event of Default, as attorney-in-fact of the Debtor, irrevocably and with power of substitution, with authority to
receive, open and dispose of all mail addressed to the Debtor, to notify the Post Office authorities to change the address for delivery of
mail addressed to the Debtor to such address as the Bank may designate; to endorse the name of the Debtor on any notes, acceptances,
checks, drafts, money orders, instruments or other evidence of payment or proceeds of the Collateral that may come into the Bank's
possession to sign the name of the Debtor on any invoices, documents, drafts against and notices (which also may direct among other
things that payment be made directly to the Bank) to Account debtors or obligors of the Debtor, assignments and requests for
verification of Accounts; to execute proofs of claim and loss; to execute any endorsements, assignments, or other instruments of
conveyance or transfer, to adjust and compromise any claims under insurance policies; to execute releases; and to do all other acts and
things necessary and advisable in the sole discretion of the Bank to carry out and enforce this Agreement. All acts of said attorney or
designee are hereby ratified and approved and said attorney or designee shall not be liable for any acts of commission of omission, nor
or any error of judgment or mistake of fact or law. This power of attorney being coupled with an interest is irrevocable while any of
the Obligations shall remain unpaid.
12. All options, powers and rights granted to the Bank hereunder or under any promissory note, instrument, document or other writing
delivered to the Bank shall be cumulative and shall be in addition to any other options, powers or rights which the Bank may now or
hereafter have as a secured party under the Uniform Commercial Code of the State of New York or under any other applicable law or
otherwise.
13. No delay on the part of the Bank in exercising any of its options, powers, or rights, or partial or single exercise thereof, shall
constitute a waiver thereof. Neither this Agreement nor any provision hereof may be modified, changed, waived, discharged or
terminated orally, but only by an instrument in writing, signed by the party against whom enforcement of the modification, change,
waiver, discharge or termination is sought.
2002. EDGAR Online, Inc.
14. Notice of acceptance of this Agreement by the Bank is hereby waived. This Agreement shall be immediately binding upon the
Debtor and its successors and assigns,
7
8
whether or not the Bank signs this Agreement.
15. It is the intention of the parties (a) that this Agreement shall constitute a continuing agreement applying to any and all future, as
well as existing transactions between the Debtor and the Bank; and (b) that the security interest provided for herein shall attach to
after-acquired as well as existing Collateral, and the Obligations covered by this Agreement shall include future advances and other
value, as well as existing advances and other value, whether or not similar to prior or existing advances or other value, and whether or
not the advances or value are or shall be given pursuant to commitment, all to the maximum extent permitted by the Uniform
Commercial Code of the State of New York.
16. Unless the context otherwise requires, all terms used herein which are defined in the Uniform Commercial Code of the State of
New York shall have the meanings therein stated.
17. If this Agreement is signed by two or more parties as Debtors, they shall be jointly and severally liable hereunder and the term
"Debtor" wherever used in this Agreement shall mean the parties who have signed this Agreement and each of them.
18. Mailing Address of Debtor. For the purpose of Section 9.402(1) of the Uniform Commercial Code, the address of the Debtor
specified below under the caption "Chief Executive Office" (or "Major Executive Office" address whenever the Chief Executive
Office is located outside of the United States) may be designated as the Debtor's mailing address.
19. This Agreement shall be construed in accordance with and be governed by the law of the State of New York.
20. Upon the indefeasible payment in full of all Obligations, if request to do so by the Debtor, the security interest granted hereby shall
be terminated and the Bank shall, at Debtor's request, execute and deliver to Debtor such documents as Debtor shall reasonably
request.
8
9
IN WITNESS WHEREOF, the Debtor has executed this Agreement or has caused these presents to be executed and delivered by its
proper corporate officer or officers and caused its proper corporate seal to be hereto affixed, this 27th day of October, 2000.
By:_______________________________________________ Name: Stephen Melvin Title: Treasurer and Chief Financial Officer
STATE OF NEW YORK )
)
SS.:
COUNTY OF NEW YORK )
On the 27th day of October in the year 2000 before me, the undersigned, a Notary Public in and for said State, personally appeared
Stephen Melvin, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
9
1
Exhibit 16.1
[LETTERHEAD OF DELOITTE & TOUCHE]
2002. EDGAR Online, Inc.
November 15, 2000
Securities and Exchange Commission
Mail Stop 11-3
450 5th Street, N.W.
Washington, D.C. 20549
Dear Sirs/Madams:
We have read and agree with the comments insofar as they relate to Deloitte & Touche LLP in the CHANGE IN ACCOUNTANTS
section of this Amendment No. 1 to Registration Statement No. 333-43874 on Form S-1 of The Princeton Review, Inc. dated
November 16, 2000.
Yours truly,
/s/ Deloitte & Touche
LLP
1
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to Registration Statement No. 333-43874 of The Princeton Review, Inc. on Form S-1
of our report dated August 5, 1998, appearing in the Prospectus, which is part of this Registration Statement, and to the reference to us
under the headings "Selected Consolidated Historical Financial Data" and "Experts" in such Prospectus.
Our audit of the financial statements referred to in our aforementioned report also included the financial statement schedule of The
Princeton Review, Inc., listed in Item 16(b). This financial statement scheduled is the responsibility of the Corporation's management.
Our responsibility is to express an opinion based on our audit. In our opinion, such financial statement schedule, when considered in
relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
/s/ Deloitte & Touche
LLP
DELOITTE & TOUCHE LLP
New York, New York
November 15, 2000
1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Selected Consolidated Historical Financial Data" and "Experts" and to the
use of our reports dated March 16, 2000, except for Note 15 as to which the date is November 16, 2000, in Amendment No. 1 to the
Registration Statement (Form S-1 No. 333-43874) and related Prospectus of The Princeton Review, Inc. for the registration of
6,210,000 shares of its common stock.
2002. EDGAR Online, Inc.
/s/ ERNST & YOUNG
LLP
New York, New York
November 16, 2000
1
[CARAS & SHULMAN, PC LETTERHEAD]
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to the Registration Statement of The Princeton Review, Inc. on Form S-1 (No.
333-43874) of our report dated May 18, 2000 appearing in the Prospectus, which is part of the Registration Statement.
We also consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ Caras & Shulman,
PC
Caras & Shulman, PC
Burlington, MA
November 16, 2000
ARTICLE 5
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED FINANCIAL STATEMENTS OF THE PRINCETON REVIEW,
INC. FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH CONSOLIDATED FINANCIAL STATEMENTS.
CIK: 0001113668
NAME: THE PRINCETON REVIEW, INC.
MULTIPLIER: 1,000
CURRENCY: U.S. DOLLARS
PERIOD TYPE 9 MOS
FISCAL YEAR END DEC 31 2000
PERIOD START JAN 01 2000
PERIOD END SEP 30 2000
EXCHANGE RATE 1
CASH 11,586
SECURITIES 5,859
RECEIVABLES 7,511
ALLOWANCES (481)
INVENTORY 474
CURRENT ASSETS 28,047
PP&E 10,652
DEPRECIATION (4,470)
TOTAL ASSETS 6,182
CURRENT LIABILITIES 16,844
BONDS 0
PREFERRED MANDATORY 27,869
PREFERRED 0
2002. EDGAR Online, Inc.
COMMON 126
OTHER SE (4,767)
TOTAL LIABILITY AND EQUITY 47,743
SALES 7,795
TOTAL REVENUES 34,154
CGS 2,802
TOTAL COSTS 10,342
OTHER EXPENSES 41,088
LOSS PROVISION 240
INTEREST EXPENSE 105
INCOME PRETAX (9,533)
INCOME TAX 6,531
INCOME CONTINUING (3,002)
DISCONTINUED 0
EXTRAORDINARY 0
CHANGES 0
NET INCOME (3,002)
EPS BASIC (0.22)
EPS DILUTED (0.22)
End of Filing
2002. EDGAR Online, Inc.