Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934
Date
of Report (Date of earliest event reported): August 11, 2009
CAMDEN
LEARNING CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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000-52919
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83-0479936
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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500
East Pratt Street, Suite 1200
Baltimore,
MD
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21202
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (410) 878-6800
Not
Applicable
(Former
name or former address, if changed since last report)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation to the registrant under any
of the following provisions:
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Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
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ADDITIONAL INFORMATION AND
FORWARD-LOOKING STATEMENTS
CAMDEN
LEARNING CORPORATION (“CAMDEN”) AND DLORAH, INC. (“DLORAH”) CLAIM THE PROTECTION
OF THE SAFE HARBOR FOR “FORWARD-LOOKING STATEMENTS” WITHIN THE MEANING OF THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. FORWARD-LOOKING STATEMENTS ARE
STATEMENTS THAT ARE NOT HISTORICAL FACTS. SUCH FORWARD-LOOKING STATEMENTS, BASED
UPON THE CURRENT BELIEFS AND EXPECTATIONS OF MANAGEMENT OF CAMDEN AND DLORAH
REGARDING, AMONG OTHER THINGS, CAMDEN’S PROPOSED BUSINESS COMBINATION WITH
DLORAH DISCUSSED HEREIN AND THE BUSINESS OF DLORAH, ARE SUBJECT TO RISKS AND
UNCERTAINTIES, WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER FROM THE
FORWARD-LOOKING STATEMENTS. THE FOLLOWING FACTORS, AMONG OTHERS, COULD CAUSE
ACTUAL RESULTS TO DIFFER FROM THOSE SET FORTH IN THE FORWARD-LOOKING STATEMENTS:
CHANGING INTERPRETATIONS OF GENERALLY ACCEPTED ACCOUNTING PRINCIPLES; CONTINUED
COMPLIANCE WITH GOVERNMENT REGULATIONS; CHANGING LEGISLATION OR REGULATORY
ENVIRONMENTS; REQUIREMENTS OR CHANGES AFFECTING THE BUSINESS IN WHICH DLORAH IS,
AND CAMDEN WILL BE, ENGAGED; MANAGEMENT OF GROWTH; INTENSITY OF COMPETITION;
GENERAL ECONOMIC CONDITIONS; AS WELL AS OTHER RELEVANT RISKS DETAILED IN
CAMDEN’S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION (“SEC”) IN
CONNECTION WITH THE PROPOSED BUSINESS COMBINATION. THE INFORMATION SET FORTH
HEREIN SHOULD BE READ IN LIGHT OF SUCH RISKS. NEITHER CAMDEN NOR DLORAH ASSUMES
ANY OBLIGATION TO UPDATE THE INFORMATION CONTAINED IN THIS REPORT.
COMMENCING
SHORTLY AFTER THE FILING OF THIS CURRENT REPORT ON FORM 8-K, CAMDEN INTENDS TO
HOLD PRESENTATIONS FOR CERTAIN OF ITS SECURITYHOLDERS, AS WELL AS OTHER PERSONS
WHO MIGHT BE INTERESTED IN PURCHASING CAMDEN’S SECURITIES, REGARDING ITS
PROPOSED BUSINESS COMBINATION WITH DLORAH, AS DESCRIBED IN THIS CURRENT REPORT.
THIS CURRENT REPORT WILL BE DISTRIBUTED TO PARTICIPANTS AT SUCH
PRESENTATIONS.
CAMDEN
INTENDS TO FILE A PROXY STATEMENT WITH THE SEC IN CONNECTION WITH THE PROPOSED
TRANSACTION. STOCKHOLDERS AND WARRANTHOLDERS OF CAMDEN AND OTHER INTERESTED
PERSONS ARE URGED TO READ THESE DOCUMENTS WHEN THEY BECOME AVAILABLE BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION. SUCH PERSONS CAN ALSO READ CAMDEN’S
FINAL PROSPECTUS, DATED NOVEMBER 29, 2007, ITS ANNUAL REPORT ON FORM 10-K FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2008 (THE “ANNUAL REPORT”) AND OTHER REPORTS
AS FILED WITH THE SEC, FOR A DESCRIPTION OF THE SECURITY HOLDINGS OF CAMDEN’S
OFFICERS AND DIRECTORS AND THEIR AFFILIATES AND THEIR RESPECTIVE INTERESTS IN
THE SUCCESSFUL CONSUMMATION OF THE PROPOSED TRANSACTIONS. THE DEFINITIVE PROXY
STATEMENT WILL BE MAILED TO STOCKHOLDERS AND WARRANTHOLDERS AS OF A RECORD
DATE TO BE ESTABLISHED FOR VOTING ON THE VARIOUS MATTERS AS SET FORTH HEREIN.
STOCKHOLDERS, WARRANTHOLDERS AND OTHERS WILL ALSO BE ABLE TO OBTAIN A COPY
OF THE DEFINITIVE PROXY STATEMENT WITHOUT CHARGE, BY DIRECTING A REQUEST TO
CAMDEN IN WRITING AT 500 EAST PRATT STREET, SUITE 1200, BALTIMORE, MD 21202, OR
BY TELEPHONE AT (410) 878-6800. FREE COPIES OF THESE DOCUMENTS CAN ALSO BE
OBTAINED, WHEN AVAILABLE, AT THE SEC’S INTERNET SITE (http://www.sec.gov
).
CAMDEN
AND DLORAH AND THEIR RESPECTIVE DIRECTORS AND EXECUTIVE OFFICERS MAY BE DEEMED
TO BE PARTICIPANTS IN THE SOLICITATION OF PROXIES FOR THE SPECIAL MEETINGS OF
CAMDEN’S STOCKHOLDERS AND WARRANTHOLDERS TO BE HELD TO APPROVE THE VARIOUS
MATTERS DESCRIBED HEREIN. THE UNDERWRITERS OF CAMDEN’S INITIAL PUBLIC OFFERING
MAY PROVIDE ASSISTANCE TO CAMDEN, DLORAH AND THEIR RESPECTIVE DIRECTORS AND
EXECUTIVE OFFICERS, AND MAY BE DEEMED TO BE PARTICIPANTS IN THE SOLICITATION OF
PROXIES. A SUBSTANTIAL PORTION OF THE UNDERWRITERS’ FEES RELATING TO CAMDEN’S
INITIAL PUBLIC OFFERING WERE DEFERRED PENDING STOCKHOLDER APPROVAL OF CAMDEN’S
INITIAL BUSINESS COMBINATION, AND STOCKHOLDERS ARE ADVISED THAT THE UNDERWRITERS
HAVE A FINANCIAL INTEREST IN THE SUCCESSFUL OUTCOME OF THE PROXY SOLICITATION.
INFORMATION ABOUT CAMDEN’S DIRECTORS AND EXECUTIVE OFFICERS IS AVAILABLE IN ITS
ANNUAL REPORT. ADDITIONAL INFORMATION REGARDING THE INTERESTS OF POTENTIAL
PARTICIPANTS WILL BE INCLUDED IN THE REGISTRATION STATEMENT AND THE PROXY
STATEMENT AND OTHER MATERIALS TO BE FILED BY CAMDEN WITH THE SEC.
THE
INFORMATION ON DLORAH’S WEBSITE IS NOT, AND SHALL NOT BE DEEMED TO BE, A
PART OF THIS CURRENT REPORT OR INCORPORATED IN FILINGS CAMDEN MAKES WITH
THE SEC.
THIS
COMMUNICATION SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES, NOR SHALL THERE BE ANY SALE OF SECURITIES IN ANY
JURISDICTIONS IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
JURISDICTION. NO OFFERING OF SECURITIES SHALL BE MADE EXCEPT BY MEANS OF A
PROSPECTUS MEETING THE REQUIREMENTS OF SECTION 10 OF THE SECURITIES ACT OF 1933,
AS AMENDED.
Item 1.01. Entry
Into a Material Definitive Agreement.
General
On August
7, 2009, Camden Learning Corporation, a Delaware corporation (“Camden”), Dlorah,
Inc., a privately owned South Dakota corporation (“Dlorah”), and Dlorah
Subsidiary, Inc., a newly formed Delaware corporation and wholly-owned
subsidiary of Camden (“Merger Sub”), entered into an Agreement and Plan of
Reorganization, which
agreement was amended and restated in its entirety on August 11,
2009 (as amended, the “Merger Agreement”). Pursuant to
the terms of the Merger Agreement, the Dlorah stockholders have agreed to
contribute all of the outstanding capital stock of Dlorah to Camden in exchange
for shares of a newly created class of stock, warrants and restricted shares of
currently authorized common stock of Camden, as further described below under
the heading “Consideration.” At the closing, Merger Sub will merge
with and into Dlorah with Dlorah surviving as a wholly-owned subsidiary of
Camden (the “Transaction”). In connection with the Transaction,
Camden intends to apply to have its common stock and warrants listed on either
the Nasdaq Capital Market or the Nasdaq Global Market, as the parties may
mutually determine.
Camden’s
board of directors has unanimously approved the Merger Agreement and recommends
that its stockholders vote to approve the Merger Agreement, and each other
proposal to be set forth in the definitive proxy statement, at the special
meeting of Camden’s stockholders to be held pursuant to the terms of Camden’s
amended and restated certificate of incorporation. Camden's
Board of Directors recommends that its warrantholders vote to approve the
proposal set forth in the definitive proxy statement, at the special meeting of
Camden’s warrantholders, to amend the warrant agreement.
Dlorah, Inc., through one of its
divisions, National American University, operates a private, for-profit
university with 16 locations in seven states, as well as extensive online course
offerings. National American University offers undergraduate and
graduate career-oriented technical and professional degree programs for
traditional, working adult and international learners at physical campuses and
online. The university offers core academic programs in accounting,
applied management, business administration, health care and information
technology. The university also offers graduate degree programs that
include a Master of Business Administration and a Master of Management
degrees. Dlorah also develops, leases and sells luxury condominiums,
apartments and townhouses in Rapid City, South Dakota.
If
approved, the Transaction is expected to be consummated promptly following the
receipt of approval from Camden stockholders and warrantholders and the
satisfaction or waiver of the other conditions described herein and in the
Merger Agreement.
The
Merger Agreement is described in greater detail below. This description of the
Merger Agreement is qualified in its entirety by reference to the full text of
such agreement which is attached hereto as Exhibit 2.1 and incorporated by
reference herein. You are urged to read the entire Merger Agreement
and the other exhibits attached hereto.
Consideration
Camden
will acquire all of the outstanding shares of Dlorah through a structured
transaction in connection with which the Dlorah stockholders will receive
consideration as follows: (1) 100,000 shares of a class of stock to be created
immediately prior to the Closing, such series to be known as Class A Stock (the
“Class A Stock” or the “Stock Consideration”), which shares shall be convertible
into 15,730,000 shares of Camden common stock, par value $0.0001 per share (the
“Common Stock”), as such conversion number may be adjusted as described herein
and in the Merger Agreement, (2) 2,800,000 newly issued common stock purchase
warrants (the “Warrant Consideration”) to purchase up to 2,800,000 shares of
Common Stock at an exercise price of $5.50 per share, and (3) 575,000 shares of
restricted Common Stock (the “Restricted Stock Consideration”), which such
shares shall not be freely tradable until such time as the Common Stock trades
at or above $8.00 per share for any sixty (60) consecutive trading day period;
provided, that such shares of restricted Common Stock shall be forfeited on the
fifth (5th)
anniversary of the date of issuance if such restriction has not been satisfied
(the Stock Consideration, the Warrant Consideration and the Restricted Stock
Consideration are referred to collectively herein as the “Merger
Consideration”). The Class A Stock shall be entitled to
a quarterly accruing dividend equal to $0.11 per share (for a total of
$0.44 per year) for the first two years following issuance and shall
automatically convert into Common Stock at the end of such two year
period. When and if a dividend is paid on the Class A Stock, the
holders of Common stock will receive a dividend equal to one-fourth of the total
of the dividend paid on the Class A Stock. The pro forma fully diluted
enterprise value to shareholders is approximately $162,000,000.
If, as of
the date of closing of the Transaction (the “Closing Date”), the Merger
Consideration represents less than an aggregate of seventy percent (70%) of the
issued and outstanding capital stock of Camden, on an as-converted and fully
diluted basis, then the number of shares of Common Stock into which the Class A
Stock is convertible shall be increased such that the Merger Consideration
equals seventy percent (70%) of the issued and outstanding capital stock of
Camden, on an as-converted and fully diluted basis as of the Closing
Date.
The
Merger Consideration will also be adjusted if the average of the closing sales
price of the Common Stock on the applicable trading market during the 10 trading
day period ending immediately preceding the Closing Date is less than $7.00 per
share. In that event, the number of shares of Common Stock into which
the Class A Stock is convertible shall be increased such that the aggregate
value of the Stock Consideration and Warrant Consideration would have the same
aggregate value as if the average of the closing sales price of the Common Stock
were $7.00 per share.
The net
aggregate amount of proceeds held in Camden’s trust account will be available
for use as working capital of Dlorah following consummation of the
Transaction. Pursuant to the Merger Agreement, such amount shall be
no less than $22,166,290.00 after payment in full of any taxes then due and
owing, the deferred underwriting fee owed to the underwriter’s of Camden’s
initial public offering, any fees and expenses payable to Camden’s investment
bankers, attorneys, accountants and other advisors, any amounts paid to Camden
stockholders, warrantholders or unit holders for conversion of their Common
Stock or units or repurchase of their Common Stock, units or warrants, and any
other of Camden’s or Merger Sub’s unpaid costs, fees and expenses associated
with the Merger Agreement, the proxy statement to be filed in connection
therewith and the transactions contemplated thereby.
Lock-ups
Each of
the Dlorah stockholders has agreed, for a period of 180 days from the Closing
Date, whether on his, her or its own behalf or on behalf of entities, family
members or trusts affiliated with or controlled by him, her or it, not to offer,
issue, grant any option on, sell or otherwise dispose of any portion of the
Merger Consideration received.
Founders’
Warrants
In
connection with the Transaction, the 2,800,000 common stock purchase warrants
owned by Camden Learning, LLC, Camden’s sponsor, shall have been exchanged for
250,000 shares of restricted Common Stock, which shares shall not be freely
tradable until such time as the Common Stock trades at or above $8.00 per share
for any sixty (60) consecutive trading day period; provided, that such shares of
restricted Common Stock shall be forfeited on the fifth (5th)
anniversary of the date of issuance if such restriction has not been
satisfied.
Camden Warrants
Camden will call a special meeting of its warrantholders to seek
approval of an amendment to the warrant agreement to allow Camden to redeem all
outstanding warrants for $0.50 per warrant upon consummation of the
Transaction.
Representations
and Warrants and Covenants of the Parties
The
parties to the Merger Agreement have made representations, warranties and
covenants to each other, which are qualified by information in confidential
disclosure schedules delivered together with the Merger
Agreement. While Camden does not believe these schedules contain
information the securities laws require it to publicly disclose, other than
information that has already been so disclosed, the disclosure schedules do
contain information that modify, qualify and create exceptions to the
representations, warranties and covenants set forth in the Merger Agreement.
Accordingly, the representations, warranties and covenants should not be relied
on as characterizations of the actual state of facts, since they are modified by
the disclosure schedules.
Additionally,
the parties have agreed to a variety of customary covenants and agreements,
including with respect to confidentiality, cooperation (including with respect
to securities matters and obtaining necessary approvals for the Transaction) and
similar matters. In addition, the parties have agreed that immediately following
the Transaction, the board of directors of Camden will consist of six members,
four of whom will be nominated by Dlorah (two of whom will be Mr. Robert
Buckingham and Dr. Jerry Gallentine) and two of whom will be nominated by Camden
(one of whom will be Mr. David Warnock). The parties have also agreed
that following the Transaction, the executive officers of Camden will be Dr.
Gallentine as President, Dr. Ronald Shape as Chief Executive Officer and interim
Chief Financial Officer, and Dr. Samuel Kerr as Provost, Secretary and General
Counsel.
Each of
Camden and Dlorah have agreed to continue to operate their respective business
in the ordinary course prior to the consummation of the Transaction, subject to
specified exceptions and unless the other party agrees otherwise.
Indemnification
From the
date of the Merger Agreement through the Closing Date, each of Camden and Dlorah
shall indemnify and hold the other party, their affiliates and each of their
respective successors and assigns, and their respective officers, directors,
employees and agents harmless from and against any liabilities, claims
(including claims by third parties), demands, judgments, losses, costs, damages
or expenses whatsoever such party may sustain, suffer or incur and that result
from, arise out of or relate to any fraud committed by the willful breach of the
Merger Agreement by the other party occurring prior to termination of the Merger
Agreement.
Conditions
to Closing the Transaction
The
obligations of the parties to consummate the Transaction are subject to various
closing conditions, including, among others: (i) that the Camden
stockholders shall have approved the Merger Agreement and the transactions
contemplated thereby and the holders of not more than 30% less one share of the
Common Stock issued in Camden’s initial public offering and outstanding
immediately before the date of the special meeting of Camden stockholders shall
have exercised their rights to convert their shares into a pro rata share of the
trust account established at the closing of Camden’s initial public offering
rather than approve the Transaction; (ii) that the applicable waiting
period under any antitrust laws shall have expired or been terminated;
(iii) that all authorizations, approvals and permits required to be
obtained from any governmental authority and all consents required from third
parties shall have been obtained; (iv) that no governmental entity shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, executive order, decree, injunction or other order which has the
effect of making the Transaction illegal or otherwise preventing or prohibiting
consummation of the Transaction; (v) that Camden and its stockholders
shall have authorized the creation and issuance, and authorized the distribution
to the Dlorah stockholders, of the Class A Stock; (vi) that final versions of
the parties’ disclosure schedules shall have been delivered to the other parties
to the Merger Agreement and such schedules shall have been certified as the
final, true, correct and complete schedules of such party; (vii) none of the
regulatory approvals or consents received shall have required Camden, Dlorah or
NAU to take any action or commit to take any action, or consent or agree to any
condition, restriction or undertaking, if, in such parties’ good faith
determination, such action, condition, restriction or undertaking, individually
or in the aggregate, with all other such actions, conditions, restrictions or
undertakings, would materially adversely affect the benefits, taken as a whole,
the parties to the Merger Agreement reasonably expect to derive therefrom;
(viii) that there shall be no pending action against any party or any affiliate,
or any of their respective properties or assets, or any officer, director,
partner, member or manager, in his or her capacity as such, of any party or any
of their affiliates, with respect to the consummation of the Transaction or the
transactions contemplated thereby which could reasonably be expected to have a
material adverse effect; (ix) that the Board of Directors and the officers of
Camden and Dlorah following the Transaction shall be constituted as set forth in
the Merger Agreement; (x) that the Common Stock and warrants shall be listed on
either the Nasdaq Capital Market or the Nasdaq Global Market; (xi) that Camden
shall have established an incentive option plan, and reserved for issuance to
its management, a number of shares of Common Stock equal to an aggregate of 1.5%
of the Common Stock issued and outstanding as of the Closing Date;
(xii) the receipt of an executed employment agreement from Dr. Shape, and
amended employment agreements from each of Mr. Buckingham and Dr.
Gallentine on terms reasonably satisfactory to Camden and Dlorah; (xiii) that no
material adverse effect shall have occurred; (xiv) that Camden shall have
changed its fiscal year end to May 31 and (xv) that Camden's
warrantholders shall have approved a proposal to amend the warrant
agreement to permit Camden to redeem the warrants for $0.50 per warrant
upon consummation of the Transaction.
The
obligations of Camden and Merger Sub to consummate the Transaction are subject
to various additional closing conditions, including, among others: (i) the
truth and correctness of Dlorah’s representations and warranties;
(ii) Dlorah’s material compliance with its agreements and covenants;
(iii) the receipt of executed lock-up agreements from the Dlorah
stockholders; (iv) receipt by Camden of a fairness opinion from an independent
investment bank stating the Merger Consideration is fair to Camden and Merger
Sub from a financial point of view; (v) receipt of audited financial statements
of Dlorah for Dlorah’s last two fiscal years, together with such other
statements that would be in compliance with Regulation S-X and the General Rules
and Regulations of the Securities Act, and such unaudited financial statements
as otherwise required for the quarterly periods (ending August 31, 2008,
November 30, 2008 and February 28, 2009) since the last audit; (vi) termination
of certain payments and transactions by Dlorah and (vii) certain individual
partners of the Fairway Hills III Partnership, of which Dlorah is a partner,
shall have brought their book-basis capital in the partnership to
$0.
The
obligation of Dlorah to consummate the Transaction is subject to various
additional closing conditions, including, among others: (i) the truth and
correctness of Camden’s representations and warranties; (ii) Camden’s
material compliance with its agreements and covenants; (iii) the closing date
shall be not later than November 29, 2009; provided, however, such date
shall be extended through January 31, 2010 in the event Camden is able to obtain
stockholder approval to extend its corporate existence; (iv) the cash amount
available from Camden’s trust fund for working capital following the Transaction
shall be not less than $22,166,290, after payment in full of the deferred
underwriting fee owed to Morgan Joseph & Co., any fees and expenses payable
to Camden’s investment bankers, attorneys, accountants and other advisors, any
amounts paid to Camden stockholders, warrantholders or unit holders for
repurchase, redemption or conversion of their Common Stock or units or
repurchase of their warrants, and any other of Camden’s unpaid costs, fees and
expenses associated with the Merger Agreement, the Proxy Statement and the
transactions contemplated thereby; (v) the trading price of the Camden Common
Stock shall be not less than $5.50 per share; (vi) Camden shall have executed a
registration rights agreement granting demand and “piggy-back” registration
rights to the Dlorah stockholders with respect to the Common Stock received by
them, or receivable by them upon conversion or exercise of the Stock
Consideration and the Warrant Consideration, in the Transaction; (vii) Camden
Learning, LLC shall have purchased not less than $4,000,000 of Common Stock in
the open market or in privately negotiated transactions and (viii) the 2,800,000
common stock purchase warrants owned by Camden Learning, LLC shall have been
cancelled and exchanged for 250,000 shares of restricted Common Stock, which
such shares shall not be freely tradable until such time as the Common Stock
trades at or above $8.00 per share for any sixty (60) consecutive trading day
period; provided, that such shares of restricted Common Stock shall be forfeited
on the fifth (5th)
anniversary of the date of issuance if such restriction has not been
satisfied.
Termination
The
Merger Agreement may be terminated at any time prior to the Closing Date,
notwithstanding the approval of the Merger Agreement by the Camden stockholders,
as follows:
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by
mutual written consent of Camden and
Dlorah;
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by
either Camden or Dlorah if (i) the closing conditions in the Merger
Agreement have not been satisfied by November 29, 2009; provided, however, such
date shall be extended through January 31, 2010 in the event Camden is
able to obtain stockholder approval to extend its corporate existence or
(ii) any governmental authority shall have enacted, issued,
promulgated, enforced or entered any order or law that has the effect of
enjoining or otherwise preventing or prohibiting the
Transaction;
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by
Camden if (i) prior to the closing there shall have been a material
breach of any representation, warranty, covenant or agreement on the part
of Dlorah or any material representation or warranty of Dlorah shall have
become untrue or inaccurate and the breach or inaccuracy is incapable of
being cured prior to the closing or is not cured within twenty (20) days
of notice of such breach or inaccuracy or (ii) any of the conditions
to closing are unfulfilled by Dlorah by November 29, 2009; provided, however, such
date shall be extended through January 31, 2010 in the event Camden is
able to obtain stockholder approval to extend its corporate existence;
or
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by
Dlorah if (i) prior to the closing there shall have been a material
breach of any representation, warranty, covenant or agreement on the part
of Camden or Merger Sub or any representation or warranty of Camden or
Merger Sub shall have become untrue or inaccurate and the breach or
inaccuracy is incapable of being cured prior to the closing or is not
cured within twenty (20) days of notice of such breach or inaccuracy or
(ii) any of the conditions to closing are unfulfilled by Camden by
November 29, 2009; provided, however, such
date shall be extended through January 31, 2010 in the event Camden is
able to obtain stockholder approval to extend its corporate
existence.
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In the event of the termination of the
Merger Agreement, unless a party commits fraud, there shall be no liability on
the part of any party or any of their respective affiliates or the directors,
officers, partners, members, managers, employees, agents or other
representatives of any of them, and all rights and obligations of each party
thereto shall cease.
Except in the case of fraud, the
parties’ sole right with respect to any breach of any representation, warranty,
covenant or other agreement contained in the Merger Agreement by another party
or with respect to the transactions contemplated thereby shall be the right to
terminate the Merger Agreement.
Ellenoff
Grossman & Schole LLP is serving as legal counsel for
Camden. Gray Plant Mooty is serving as legal counsel for
Dlorah. Stifel Nicolaus, Inc. is serving as financial advisor to
Dlorah with respect to the transaction. Signal Hill Capital Group LLC
rendered a fairness opinion to the Board of Directors of Camden.
A copy of
the press release is attached as Exhibit 99.1 hereto.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Effective with the execution of the
Merger Agreement, the Board of Directors of Camden unanimously voted to change
Camden’s fiscal year end from December 31 to May 31. Camden expects
to file a Form 10-K to provide a report for the period ending May 31,
2009.
On August 10, 2009, the Board of Directors of Camden unanimously
voted to amend its bylaws to provide for the adjournment of any annual or
special meeting of its stockholders or warrantholders by the presiding
officer of such meeting.
Attached
as Exhibit 99.2 to this Current Report is the form of presentation Camden
expects to use in connection with presentations to certain of its
securityholders, as well as other persons interested in purchasing securities of
Camden, in connection with the Transaction. Such material may be
deemed soliciting material in connection with the special meeting of Camden’s
stockholders to be held pursuant to the Merger Agreement.
Note
Regarding Financial Information and Data of Dlorah
The
financial information and data of Dlorah contained in certain of the exhibits to
this Current Report is derived from Dlorah’s unaudited financial statements and
may not conform to Regulation S-X. Accordingly, such information and data may be
adjusted and presented differently in the definitive proxy statement to be
mailed to Camden’s stockholders.
Note
Regarding Non-GAAP Financial Measures
The
investor presentation attached as an exhibit hereto contains certain non-GAAP
financial measures, as defined under Regulation G of the rules and regulations
of the SEC, including EBITDA and Adjusted EBITDA. EBITDA and Adjusted
EBITDA (each as defined in the appendix to the investor presentation) are
non-GAAP financial measures (i.e., they are not measures of financial
performance under generally accepted accounting principles) and should not be
considered in isolation or as a substitute for consolidated statements of
operations and cash flows data prepared in accordance with GAAP. In addition,
EBITDA and Adjusted EBITDA as used by Dlorah may not be comparable to similarly
titled measures of other companies. For definitions of and additional
information regarding EBITDA and Adjusted EBITDA, and a reconciliation of such
measures to the most comparable financial measures calculated in accordance with
GAAP, please refer to the appendix to the investor presentation.
EBITDA
and Adjusted EBITDA are commonly used by financial analysts in evaluating
performance of companies. Accordingly, Camden believes these
financial measures may be useful to investors in assessing its operating
performance. Camden and Dlorah also believe these measures allow a
standardized comparison between private companies in the for-profit educational
industry, while minimizing the differences from depreciation policies, financial
leverage and tax strategies.
While
Camden uses EBITDA and Adjusted EBITDA in managing and analyzing its business
and financial condition and believes these measures are useful to its management
and investors for the reasons described above, these non-GAAP financial measures
have certain shortcomings. Dlorah’s management compensates for the
shortcomings of EBITDA and Adjusted EBITDA by utilizing them in conjunction with
their comparable GAAP financial measures.
Item 9.01. Financial
Statements and Exhibits
|
Exhibit
|
|
Description
|
|
2.1*
|
|
Agreement
and Plan of Reorganization, dated as of August 7, 2009, by and among
Camden Learning Corporation, Dlorah, Inc. and Dlorah Subsidiary,
Inc.
|
| |
|
| 2.2* |
|
Amended and Restated
Agreement and Plan of Reorganization, dated as of August 11, 2009, by and
among Camden Learning Corporation, Dlorah, Inc. and Dlorah Subsidiary,
Inc. |
|
|
|
|
99.1
|
|
Press
release dated August 10, 2009
|
|
|
|
|
|
|
|
99.2
|
|
Investor
presentation
|
|
|
*
|
All
schedules for which provision is made in the applicable regulations of the
SEC are not required under the related instructions or are not applicable,
and, therefore, have been omitted.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
|
|
|
|
|
|
|
August
11, 2009
|
|
CAMDEN
LEARNING CORPORATION
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
David
Warnock
|
|
|
|
Title:
|
|
President
and Chief Executive Officer
|
|
|
|
|
|
Exhibit
|
|
Description
|
|
2.1*
|
|
Agreement
and Plan of Reorganization, dated as of August 7, 2009, by and among
Camden Learning Corporation, Dlorah, Inc. and Dlorah Subsidiary,
Inc.
|
| |
|
|
2.2*
|
|
Amended
and Restated Agreement
and Plan of Reorganization, dated as of August 10, 2009, by and among
Camden Learning Corporation, Dlorah, Inc. and Dlorah Subsidiary,
Inc. |
|
|
|
|
99.1
|
|
Press
release dated August 10, 2009
|
|
|
|
|
|
|
|
99.2
|
|
Investor
presentation
|
|
|
*
|
All
schedules for which provision is made in the applicable regulations of the
SEC are not required under the related instructions or are not applicable,
and, therefore, have been omitted.
|