UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No.3)
Nerdy Inc.
(Name of Issuer)
Class A Common Stock, $0.0001 par value per share
(Class of Securities)
64081V109
(CUSIP Number)
Christopher Swenson
Nerdy Inc.
8001 Forsyth Blvd, Suite 1050
St. Louis, MO 63105
Telephone: (314) 412-1227
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
June 10, 2024
(Date of Event Which Requires Filing of Statement on Schedule 13D)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), checking the following box. ☐
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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| (1) | | Name of Reporting Persons:
Charles Cohn |
| (2) | | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ☐ (b) ☐ |
| (3) | | SEC Use Only: |
| (4) | | Source of Funds (See Instructions):
AF, PF, OO |
| (5) | | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e): ☐ |
| (6) | | Citizenship or Place of Organization:
United States |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: | (7) | | Sole Voting Power:
57,919,787(1) |
| (8) | | Shared Voting Power:
0 |
| (9) | | Sole Dispositive Power:
57,919,787(1) |
| (10) | | Shared Dispositive Power:
0 |
| (11) | | Aggregate Amount Beneficially Owned by Each Reporting Person:
57,919,787(1) |
| (12) | | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): ☐
|
| (13) | | Percent of Class Represented by Amount in Row (11):
39.1%(2) |
| (14) | | Type of Reporting Person (See Instructions):
IN |
(1)Consists of common stock held by (i) Charles K. Cohn VT Trust U/A/D May 26, 2017, (ii) Cohn Investments, LLC, (iii) Rarefied Air Capital LLC, (iv) Cohn Family Trust U/A/D 3/16/17, and (v) Charles Cohn Revocable Trust. Mr. Cohn is the beneficial owner of the Charles K. Cohn VT Trust U/A/D May 26, 2017 and Cohn Family Trust U/A/D 3/16/17, the sole manager of Cohn Investments, LLC, and the sole manager of Rarefied Air Capital LLC. Excludes the 9,803,207 shares of common stock beneficially owned by Ms. Cohn, which Ms. Cohn has sole voting and sole dispositive power over and to which Mr. Cohn disclaims beneficial ownership.
(2)The percent of class was calculated based on (i) 112,608,847 shares of Class A Common Stock and (ii) 35,690,960 shares of Class B Common Stock.Mr. Cohn disclaims beneficial ownership of the shares held by Ms. Cohn.
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| (1) | | Name of Reporting Persons:
Allison Cohn |
| (2) | | Check the Appropriate Box if a Member of a Group (See Instructions): (a) ☐ (b) ☐ |
| (3) | | SEC Use Only: |
| (4) | | Source of Funds (See Instructions):
AF, PF, OO |
| (5) | | Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e): ☐ |
| (6) | | Citizenship or Place of Organization:
United States |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: | (7) | | Sole Voting Power:
9,803,207(1) |
| (8) | | Shared Voting Power:
0 |
| (9) | | Sole Dispositive Power:
9,803,207(1) |
| (10) | | Shared Dispositive Power:
0 |
| (11) | | Aggregate Amount Beneficially Owned by Each Reporting Person:
9,803,207(1) |
| (12) | | Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): ☐
|
| (13) | | Percent of Class Represented by Amount in Row (11):
8.3%(2) |
| (14) | | Type of Reporting Person (See Instructions):
IN |
(1)Consists of common stock held by (i) Cohn Investments LLC, (ii) Rarefied Air Capital LLC, (iii) Cohn Family Trust U/A/D 5/24/2018, and (iv) Cohn Family Investments Trust U/A/D 5/24/2018. Ms. Cohn has sole voting and sole dispositive power of certain securities held by Cohn Investments LLC and Rarefied Air Capital LLC and Ms. Cohn is the sole trustee of the two trusts. Excludes the 57,919,787 shares held by Mr. Cohn.
(2)The percent of class was calculated based on (i) 112,608,847 shares of Class A Common Stock and (ii) 5,374,038 shares of Class B Common Stock.
EXPLANATORY NOTE
This Amendment No. 3 amends the Schedule 13D filed by Charles Cohn on August 20, 2022. This Amendment includes the initial filing by Allison Cohn, Mr. Cohn’s wife. This Amendment amends and restates Items 1, 2, 3, 5, and 6. Except as specifically provided herein, this Amendment does not modify any of the information previously reported in the Schedule 13D.
ITEM 1. SECURITY AND ISSUER.
This statement relates to shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), of Nerdy Inc., a Delaware corporation (formerly known as TPG Pace Tech Opportunities Corp.) (the “Company”). The Company’s principal executive offices are located at 8001 Forsyth Blvd., Suite 1050, St. Louis, Missouri 63105.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This Amendment No. 3 to Schedule 13D is filed jointly by Charles Cohn and Allison Cohn (each a “Reporting Person” and together the “Reporting Persons”).
(b) The address of the Reporting Persons is c/o Nerdy Inc., 8001 Forsyth Blvd., Suite 1050, St. Louis, MO 63105.
(c) Mr. Cohn is a founder of the Company and is currently the Chairman of the Board of Directors and Chief Executive Officer of the Company. Mr. Cohn is married to Ms. Cohn.
(d), (e) During the last five years, the Reporting Persons have not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) The Reporting Persons are each a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The securities reported herein were received as consideration in connection with a Business Combination (as defined below), or were purchased with personal funds thereafter in various open market or privately negotiated purchases. The securities beneficially owned by Ms. Cohn were transferred to Ms. Cohn without consideration.
On September 20, 2021 (the “Closing Date”), the Company, consummated the business combination (the “Closing”) pursuant to that certain Business Combination Agreement, dated as of January 28, 2021 (as amended on March 19, 2021, on July 14, 2021, on August 11, 2021 and on August 18, 2021, the “Business Combination Agreement”) by and among the Company, TPG Pace Tech Merger Sub LLC, a Delaware limited liability company (“TPG Pace Merger Sub”), Live Learning Technologies LLC, a Delaware limited liability company (“Nerdy LLC”), the Reporting Person and the other signatories party thereto. The transactions contemplated by the Business Combination Agreement are collectively referred to herein as the “Business Combination.”
Pursuant to the Business Combination Agreement and in connection therewith, TPG Pace Merger Sub merged with and into Nerdy LLC (the “Merger”), with Nerdy LLC (“OpCo”) surviving such merger, pursuant to which the Reporting Person exchanged their Nerdy LLC common units for a blended consideration consisting of cash, limited liability company units in Nerdy LLC (the “OpCo Units”), shares of the Company’s Class B common stock, par value $0.0001 per share (“Class B Common Stock”) in an equivalent number to the OpCo Units received, Earnout Shares (which were to vest upon the satisfaction of certain share price vesting conditions and which are no longer outstanding) of the Company’s Class B Common Stock, and warrants to purchase OpCo Units (“OpCo Warrants”) (the exercise of which would result in the issuance of one corresponding share of Class B Stock and which are no longer outstanding).
The Business Combination was accomplished through an Up-C structure, and the mix of consideration received reflects the implementation of such structure. The Reporting Person is also entitled to receive additional future consideration with respect to the Business Combination in the form of amounts payable under the Tax Receivable Agreement as described in Item 6 below.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Business Combination Agreement and the Amendments thereto, included with this Statement as Exhibits 2 through 5 and are incorporated herein by reference.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons acquired the Common Stock for investment purposes. Depending on the factors discussed herein, the Reporting Persons may, from time to time, investigate, evaluate, discuss, negotiate or agree to acquire additional shares of Common Stock in the open market, in connection with issuances by the Company or sales by other stockholders in transactions registered under the Securities Act of 1933, as amended (the “Securities Act”), in privately negotiated transactions or otherwise and/or investigate, evaluate, discuss, negotiate or agree to retain and/or sell or otherwise dispose of all or a portion of shares of Common Stock in the open market, through transactions registered under the Securities Act, through privately negotiated transactions to the Company or third parties or through distributions to their respective partners, or otherwise. Any actions the Reporting Persons might undertake will be dependent upon the Reporting Persons’ review of numerous factors, including, among other things, the price levels of the Common Stock; general market and economic conditions; ongoing evaluation of the Company’s business, financial condition, operating results and prospects; the relative attractiveness of alternative business and investment opportunities; and other future developments.
Except as set forth herein, the Reporting Person has no present plans or proposals that relate to or which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in or incorporated by reference in Items 3, 4 and 6 of this Schedule 13D is incorporated by reference in its entirety into this Item 5.
(a) and (b)
•Amount beneficially owned: See Row 11 of cover page for each Reporting Person
•Percent of Class: See Row 13 of cover page for each Reporting Person
•Number of shares the Reporting Person has:
•Sole power to vote or direct the vote: See Row 7 of cover page for each Reporting Person
•Shared power to vote: See Row 8 of cover page for each Reporting Person
•Sole power to dispose or direct the disposition of: See Row 9 of cover page for each Reporting Person
•Shared power to dispose or direct the disposition of: See Row 10 of cover page for each Reporting Person.
(c) Mr. Cohn effected the following transactions in the Company’s Class A Common Stock during the past sixty days of filing this Amendment No.3 (with the exception of the 8/19/2024 transaction, which the Reporting Persons participated in together):
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| Transaction Date | | Transaction Type | | Amount of Securities | | Weighted-Average Price |
| 6/10/2024 | | Purchase | | 353,000 | | $1.59 |
| 6/11/2024 | | Purchase | | 569,976 | | $1.68 |
| 6/12/2024 | | Purchase | | 500,000 | | $1.80 |
| 6/13/2024 | | Purchase | | 347,275 | | $1.88 |
| 6/14/2024 | | Purchase | | 347,275 | | $1.93 |
| 8/16/2024 | | Purchase | | 1,993,192 | | $0.91 |
| 8/16/2024 | | Purchase | | 9,000,000 | | $0.88 |
| 8/19/2024 | | Purchase | | 2,170,291 | | $1.03 |
The Reporting Persons effected the following transactions in the Company’s Class B Common Stock during the past sixty days of filing this Amendment No. 3.
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| Transaction Date | | Transaction Type | | Amount of Securities | | Weighted-Average Price |
| 6/10/2024 | | Purchase (a) | | 500,000 | | $1.58 |
| 6/10/2024 | | Purchase (a) | | 500,000 | | $1.55 |
(a)This purchase, which was agreed to on June 10, 2024, was a private purchase contracted by and between Cohn Investments LLC and the selling parties. See Item 6 for additional information.
(d) Not applicable
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
Stockholders’ Agreement
Concurrently with the execution of the Business Combination Agreement, the Company, TPG Pace Tech Opportunities Sponsor, Series LLC, a Delaware limited liability company (“Sponsor”), the Reporting Person and the other stockholders party thereto entered into the Stockholders’ Agreement, which governs certain rights and obligations of the parties, and, among other things, sets forth certain requirements regarding the composition of the Nerdy Inc. Board.
Under the Stockholders’ Agreement, the Nerdy Inc. Board will be, subject to certain exceptions, comprised of seven members, divided into three classes, comprised of three directors designated by the Reporting Person; one director designated by Learn Capital; one director designated by TCV VIII (A); one director designated by Sponsor; and one director nominated in accordance with Nerdy Inc.’s constituent documents who meets certain diversity and independence standards. Cohn’s nomination rights will be reduced in relation to his ownership percentage. The nomination rights of each of Sponsor, Learn Capital and TCV VIII (A) will continue for so long as it and its affiliates hold at least 50% of the Common Stock such party holds at the Closing. In addition, the Stockholders’ Agreement sets forth certain transfer restrictions with respect to the Class A Common Stock, including a six-month lock-up provision.
Founder Equity Award Agreement
On September 20, 2021, Mr. Cohn was granted a performance restricted stock unit award covering a maximum of 9,258,298 shares of Class A Common Stock (the “Founder and CEO Performance Award”). The Founder and CEO Performance Award vests upon the satisfaction of a service condition and achievement of certain stock price goals, as described below.
The Founder and CEO Performance Award is eligible to vest based on Nerdy Inc.’s stock price performance over a seven-year period after September 20, 2021. To vest in the award, Mr. Cohn must remain employed as Nerdy Inc.’s Chief Executive Officer or Executive Chairman through the date a stock price hurdle is achieved, subject to certain exceptions. The Founder and CEO Performance Award is divided into seven equal tranches that are eligible to vest based on the achievement of stock price goals that occur at $18.00, $22.00, $26.00, $30.00, $34.00, $38.00, and $42.00 per share, measured based on an average of our stock price over a consecutive 90 calendar-day period during the performance period, which will be adjusted as appropriate to reflect any stock splits, stock dividends, combinations, reorganizations, reclassifications or similar events. To the extent a stock price hurdle is achieved and shares of Class A Common Stock are delivered to Mr. Cohn, he will generally be limited in his ability to transfer the net after-tax shares, except for estate planning purposes, for two years following the vesting date.
Tax Receivable Agreement
On the Closing Date, the Company entered into a tax receivable agreement (the “Tax Receivable Agreement”) with holders of OpCo Units (the “TRA Holders”). The Tax Receivable Agreement generally provides for the payment by the Company to the TRA Holders of 85% of the net cash savings, if any, in U.S. federal, state and local income tax that the Company actually realizes in periods after the Business Combination as a result of: (i) certain increases in tax basis that occur as a result of (A) the Business Combination (including as a result of cash received in the Business Combination and debt repayment occurring in connection with the Business Combination) or (B) exercises of the redemption or call rights set forth in the OpCo LLC Agreement; and (ii) imputed interest deemed to be paid by the Company and additional basis arising from any payments under the Tax Receivable Agreement. The rights of the TRA Holders (including the right to receive payments) under the Tax Receivable Agreement are transferable by the TRA Holders as long as the transferee of such rights has executed and delivered, or, in connection with such transfer, executes and delivers, a joinder to the Tax Receivable Agreement. Payments generally will be made under the Tax Receivable Agreement as the Company realizes actual cash tax savings in periods after consummation of the Business Combination from the tax benefits covered by the Tax Receivable Agreement.
Second Amended and Restated Limited Liability Company Agreement of OpCo
Following the Closing, the Company will operate its business through OpCo. On the Closing Date, the Company and the other holders of OpCo Units entered into the Second Amended and Restated Limited Liability Company Agreement of OpCo (the “OpCo LLC Agreement”), which sets forth the rights and obligations of the holders of OpCo Units, including the redemption right (together with the surrender and delivery of the same number of shares of Class B Common Stock) for an equivalent number of shares of Class A Common Stock, the exercise of which is subject to a six-month lock-up provision. Under the OpCo LLC Agreement, OpCo will be managed by a five person board of managers, composed of three persons that were designated by the Company and two persons that were designated by holders of a majority of the OpCo Units held by members of OpCo other than the Company.
Stock Transfer Agreement
On June 10, 2024, a stock transfer agreement (the “Stock Transfer Agreement”) was made and entered into by and between Cohn Investments LLC (the “Purchaser”), a limited liability company organized under the laws of the State of Missouri on the one hand and Heidi Robinson ( "Robinson”) on the other. The Reporting person is the managing member of the Purchaser, with the membership interests held by the Cohn Family Trust U/A/D 3/16/2017, The Cohn Family Investments Trust 05/24/18, and 2018 Cohn Family Trust U/A/D 5/24/2018, in all of which the Reporting Person has a direct or indirect interest. Under the Stock Transfer Agreement, Robinson agreed to sell 500,000 shares of Class B Common Stock to the Purchaser for $775,000.
On June 10, 2024, a stock transfer agreement (the “Stock Transfer Agreement”) was made and entered into by and between Cohn Investments LLC (the “Purchaser”), a limited liability company organized under the laws of the State of Missouri on the one hand and Adam Weber ( "Weber”) on the other. The Reporting person is the managing member of the Purchaser, with the membership interests held by the Cohn Family Trust U/A/D 3/16/2017, The Cohn Family Investments Trust 05/24/18, and 2018 Cohn Family Trust U/A/D 5/24/2018, in all of which the Reporting Person has a direct or indirect interest. Under the Stock Transfer Agreement, Weber agreed to sell 500,000 shares of Class B Common Stock to the Purchaser for $790,000.
On August 16, 2024, a share sale agreement (the “Share Sale Agreement”) was made and entered into by and between Cohn Family Trust U/A/D 3/16/2017 and Greenvale Capital LLP (acting for and on behalf of certain funds and accounts managed or advised by it). Mr. Cohn, a Reporting Person, is the trustee of the trustee. Under the Share Sale Agreement, the trust purchased 9,000,000 shares of Class A Common Stock for $7,948,800.
Cohn Investments LLC; Rarefied Air Capital LLC; Cohn Family Investments Trust U/A/D 5/24/2018; Cohn Family Trust U/A/D 5/24/2018
On April 13, 2023, Ms. Cohn became the sole trustee of the Cohn Family Investments Trust U/A/D 5/24/2018 and the Cohn Family Trust U/A/D 5/24/2018 and thus the beneficial owner of the securities held by these trusts. On April 13, 2023, Ms. Cohn was given sole dispositive and sole voting power with respect to certain securities held by Cohn Investments LLC and Rarefied Air Capital LLC, which are reported as beneficially owned by Ms. Cohn. Mr. Cohn disclaims beneficial ownership of the shares reported as beneficially owned by Ms. Cohn.
The foregoing summaries do not purport to be complete, and are qualified in their entirety by reference to the Stockholders’ Agreement, Registration Rights Agreement, Tax Receivable Agreement, OpCo LLC Agreement, the Stock Transfer Agreements, and the Share Sale Agreement included with this Statement as Exhibits 6 through 14, respectively, and incorporated herein by reference.
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.
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| Charles Cohn |
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Date: August 27, 2024 | By: | /s/ Charles Cohn |
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| By: | /s/ Allison Cohn |
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| | Notice Address: |
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| | c/o Nerdy Inc. |
| | 8001 Forsyth Blvd. Suite 1050 |
| | St. Louis, MO 63105 |
| | Telephone: (314) 412-1227 |
STOCK TRANSFER AGREEMENT
This Stock Transfer Agreement (this “Agreement”) is made and entered into as of June 10, 2024 (the “Effective Date”) by and between Cohn Investments LLC (the “Purchaser”) and Heidi Robinson (the “Seller”).
Whereas, the Seller desires to transfer 500,000 shares (the “Shares”) of Class B common stock, par value $0.0001 (the “Common Stock” ), of Nerdy Inc. (the “Company”) to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Whereas, each of the Company’s Class B shares combined with one OpCo Unit (as defined below) is transferable for one share of Class A common stock (and they can only be transferred together), and the Company’s Class B shares are only transferable in connection with a permitted transfer of a corresponding number of units of Nerdy LLC (such units referred to as the “OpCo Units”), and the Seller desires to transfer the corresponding number of OpCo units to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Whereas, the Tax Receivable Benefits (as defined below) are transferable under the Tax Receivable Agreement, and the Seller desires to transfer the Tax Receivable Benefits to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1.SALE AND PURCHASE OF SHARES. The Seller hereby sells to the Purchaser, and the Purchaser hereby purchases from the Seller, the Shares and the OpCo Units for the Purchaser’s payment to Seller of a total purchase price in the amount of $775,000 (the “Purchase Price”), reflecting a price per Share of $1.55 including the linked OpCo Units for any Class B shares.
2.DELIVERABLES.
2.1.Deliveries by Seller. The Seller hereby delivers to the Purchaser (a) an executed copy of this Agreement and Exhibit A, (b) the Shares being sold pursuant to this Agreement, (c) the OpCo Units being sold pursuant to this Agreement, and (d) a completed Form W-9.
2.2.Deliveries by Purchaser. The Purchaser hereby delivers to the Seller (a) an executed copy of this Agreement and Exhibit A and (b) payment of the applicable Purchase Price for the Shares, the OpCo Units, and the Tax Receivable Benefits.
3.REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser represents and warrants to the Seller and the Company as follows:
3.1.Authority. The Purchaser has full legal right, power, and authority to enter into and perform its obligations under this Agreement and to purchase the Shares and the OpCo Units under this Agreement.
3.2.Understanding of Risks. The Purchaser is fully aware of: (a) the highly speculative nature of an investment in the Shares and the OpCo Units; (b) the financial and other risks involved; (c) the lack of liquidity of the Shares and the OpCo Units and the restrictions on transferability of the Shares and the OpCo Units; (d) the qualifications and backgrounds of the management of the Company; and (e) the tax consequences of acquiring the Shares and the OpCo Units.
3.3.Purchaser’s Qualifications. The Purchaser is aware of the character, business acumen, and general business and financial circumstances of the Company. By reason of the Purchaser’s business or financial experience, the Purchaser is capable of evaluating the merits and risks of this purchase, has the ability to protect Purchaser’s own interests in this transaction, and is financially capable of bearing a total loss of the Shares.
3.4.Restricted Securities. The Purchaser understands that the Shares and the OpCo Units it is purchasing are “restricted securities” under the U.S. federal securities laws and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances. In this connection, the Purchaser represents that the Purchaser is familiar with SEC rules and regulations and any other applicable securities laws and regulations, as presently in effect, and understands the resale limitations imposed thereby and by the 1933 Act.
4.REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller represents and warrants to the Purchaser and the Company as follows:
4.1.Power. The Seller has the requisite right and power to enter into and perform her obligations under this Agreement and to transfer the Shares, the OpCo Units and the Tax Receivable Benefits under this Agreement.
4.2.Due Authorization. All action necessary for (a) the authorization, execution, delivery of, and the performance of all obligations of the Seller to be performed under this Agreement and (b) the sale, transfer, and delivery of all of the Shares, the OpCo Units and the Tax Receivable Benefits being sold under this Agreement has been taken.
4.3.Enforceability. This Agreement, when executed and delivered, will constitute the valid and legally binding obligations of the Seller, enforceable in accordance with its terms, except (a) as may be limited by applicable bankruptcy, insolvency, reorganization, or others laws of general application relating to or affecting the enforcement of creditors’ rights generally and (b) as may be limited by the effect of rules of law governing the availability of equitable remedies.
4.4.Transfer for Own Account. The Seller is selling the Shares and the OpCo Units for Seller’s own accounts only and not with a view to, or for sale in connection with, a distribution of the Shares or the OpCo Units within the meaning of the 1933 Act. No portion of the Purchase Price will be received indirectly by the Company.
4.5.No General Solicitation. At no time has the Seller presented the Purchaser with or solicited the Purchaser through any publicly issued or circulated newspaper, mail, radio, television, or other form of general advertisement or solicitation in connection with the transfer of the Shares.
4.6.No Broker-Dealer. The Seller has not effected this transfer of Shares and OpCo Units by or through a broker-dealer in any public offering.
4.7.Title to Shares. The Seller has valid marketable title to the Shares and OpCo Units to be transferred under this Agreement, free and clear of any pledge, lien, security interest, encumbrance, claim, or equitable interest (collectively, “Encumbrances”). The Seller hereby delivers to the Purchaser good title to the Shares and OpCo Units purchased by the Purchaser pursuant to the terms hereof free and clear of any Encumbrances. For purposes of clarity, the Seller represents that none of the Shares and OpCo Units to be transferred under this Agreement remain subject to any Encumbrances.
4.8.Consents. All consents, approvals, authorizations, and orders required for the execution and delivery of this Agreement and the transfer of the Shares and OpCo Units under this Agreement have been obtained and are in full force and effect, except for any approval required by the Board of Managers of Nerdy LLC.
4.9.Sophisticated Seller; Access to Information. The Seller is a sophisticated entity familiar with transactions similar to those contemplated by this Agreement and has such knowledge and experience in financial and business matters that the Seller is capable of evaluating the merits and risks of such transactions. The Seller has evaluated the merits and risks of selling the Shares and the OpCo Units on the terms set forth in this Agreement and is willing to forego through such sale the potential for future economic gain that might be realized from the Shares and the OpCo Units. The Seller (a) has negotiated this Agreement on an arms-length basis and has had an opportunity to consult with the Seller’s legal and financial advisors concerning this Agreement and its subject matter and (b) has had access to such information regarding the business and finances of the Company and such other matters with respect to the Company as a reasonable person would consider in evaluating the transactions contemplated hereby, including, in particular, all information necessary to determine the fair market value of the Shares and the financial statements of the Company for all relevant periods. The Seller represents that the Seller has not relied on the Purchaser for any information regarding the Company or the value of the Shares or the OpCo Units. The Seller acknowledges that the Purchaser is not acting as a fiduciary or financial or investment adviser to the Seller, and has not given the Seller any investment advice, opinion or other information on whether the sale of the Shares and/or the OpCo Units is prudent. The Seller acknowledges that (i) the Purchaser currently may have, and later may come into possession of, information with respect to the Company that is not known to the Seller and that may be material to a decision to sell the Shares
and/or the OpCo Units (“Seller Excluded Information”), (ii) the Seller has determined to sell the Shares and the OpCo Units notwithstanding Seller’s lack of knowledge of the Seller Excluded Information and (iii) the Purchaser shall have no liability to the Seller, and the Seller waives and releases any claims that Seller might have against the Purchaser whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Seller Excluded Information in connection with the sale of the Shares and the OpCo Units and the transactions contemplated by this Agreement. The Seller acknowledges that the price for the Shares and the OpCo Units may significantly appreciate or depreciate over time and by agreeing to sell the Shares to the Purchaser pursuant to this Agreement, the Seller is giving up the opportunity to sell the Shares and the OpCo Units at a possible higher price in the future. The Seller understands that the Purchaser will rely on the accuracy and truth of the foregoing representations, and the Seller hereby consents to such reliance.
4.10.TRA. Seller hereby assigns all of its rights under that certain Tax Receivable Agreement between Nerdy Inc. and certain other persons named therein, dated as of September 20, 2021, with respect to the purchased OpCo Units, including any rights to Tax Benefit Payments (as defined within the Tax Receivable Agreement) with respect to the purchased OpCo Units. In connection with the assignment contemplated by this Section 4.10, the parties and the Company are entering into a joinder to the Tax Receivable Agreement in the form attached hereto as Exhibit A.
4.11.Conflicts. The execution, delivery, and performance of this Agreement by the Seller does not conflict with or result in the breach of any agreement, instrument, order, judgment, decree, law, or governmental regulation to which the Seller or the Shares being sold by the Seller pursuant to the terms hereof are subject.
5.GENERAL PROVISIONS.
5.1.Successors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Purchaser may assign any of its rights and obligations under this Agreement. The Seller shall not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Purchaser.
5.2.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law or choice of law provisions. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company’s principal place of business.
5.3.Further Assurances. The parties agree to execute such further documents and instruments and to take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.
5.4.Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.
5.5.Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement.
5.6.Amendment and Waivers. This Agreement may be amended only by a written agreement executed by the Purchaser and the Seller. Any amendment effected in accordance with this section will be binding upon all parties hereto and each of their respective successors and assigns.
5.7.Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement.
5.8.Expenses. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses whether or not the transfer is consummated.
[Signature pages follow.]
IN WITNESS WHEREOF, the Seller and the Purchaser have each executed this Agreement, as of the Effective Date.
PURCHASER:
Cohn Investments LLC
/S/ Charles Cohn
_______________________________________
By: Charles Cohn
Title: Manager
SELLER:
/S/ Heidi Robinson
_______________________________________
Name: Heidi Robinson
STOCK TRANSFER AGREEMENT
This Stock Transfer Agreement (this “Agreement”) is made and entered into as of June 10, 2024 (the “Effective Date”) by and between Cohn Investments LLC (the “Purchaser”) and Adam Weber (the “Seller”).
Whereas, the Seller desires to transfer 500,000 shares (the “Shares”) of Class B common stock, par value $0.0001 (the “Common Stock” ), of Nerdy Inc. (the “Company”) to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Whereas, each of the Company’s Class B shares combined with one OpCo Unit (as defined below) is transferable for one share of Class A common stock (and they can only be transferred together), and the Company’s Class B shares are only transferable in connection with a permitted transfer of a corresponding number of units of Nerdy LLC (such units referred to as the “OpCo Units”), and the Seller desires to transfer the corresponding number of OpCo units to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Whereas, the Tax Receivable Benefits (as defined below) are transferable under the Tax Receivable Agreement, and the Seller desires to transfer the Tax Receivable Benefits to the Purchaser in exchange for the payment by the Purchaser to the Seller of the consideration set forth in this Agreement;
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1.SALE AND PURCHASE OF SHARES. The Seller hereby sells to the Purchaser, and the Purchaser hereby purchases from the Seller, the Shares and the OpCo Units for the Purchaser’s payment to Seller of a total purchase price in the amount of $790,000 (the “Purchase Price”), reflecting a price per Share of $1.58 including the linked OpCo Units for any Class B shares.
2.DELIVERABLES.
2.1.Deliveries by Seller. The Seller hereby delivers to the Purchaser (a) an executed copy of this Agreement and Exhibit A, (b) the Shares being sold pursuant to this Agreement, (c) the OpCo Units being sold pursuant to this Agreement, and (d) a completed Form W-9.
2.2.Deliveries by Purchaser. The Purchaser hereby delivers to the Seller (a) an executed copy of this Agreement and Exhibit A and (b) payment of the applicable Purchase Price for the Shares, the OpCo Units, and the Tax Receivable Benefits.
3.REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser represents and warrants to the Seller and the Company as follows:
3.1.Authority. The Purchaser has full legal right, power, and authority to enter into and perform its obligations under this Agreement and to purchase the Shares and the OpCo Units under this Agreement.
3.2.Understanding of Risks. The Purchaser is fully aware of: (a) the highly speculative nature of an investment in the Shares and the OpCo Units; (b) the financial and other risks involved; (c) the lack of liquidity of the Shares and the OpCo Units and the restrictions on transferability of the Shares and the OpCo Units; (d) the qualifications and backgrounds of the management of the Company; and (e) the tax consequences of acquiring the Shares and the OpCo Units.
3.3.Purchaser’s Qualifications. The Purchaser is aware of the character, business acumen, and general business and financial circumstances of the Company. By reason of the Purchaser’s business or financial experience, the Purchaser is capable of evaluating the merits and risks of this purchase, has the ability to protect Purchaser’s own interests in this transaction, and is financially capable of bearing a total loss of the Shares.
3.4.Restricted Securities. The Purchaser understands that the Shares and the OpCo Units it is purchasing are “restricted securities” under the U.S. federal securities laws and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances. In this connection, the Purchaser represents that the Purchaser is familiar with SEC rules and regulations and any other applicable securities laws and regulations, as presently in effect, and understands the resale limitations imposed thereby and by the 1933 Act.
4.REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller represents and warrants to the Purchaser and the Company as follows:
4.1.Power. The Seller has the requisite right and power to enter into and perform her obligations under this Agreement and to transfer the Shares, the OpCo Units and the Tax Receivable Benefits under this Agreement.
4.2.Due Authorization. All action necessary for (a) the authorization, execution, delivery of, and the performance of all obligations of the Seller to be performed under this Agreement and (b) the sale, transfer, and delivery of all of the Shares, the OpCo Units and the Tax Receivable Benefits being sold under this Agreement has been taken.
4.3.Enforceability. This Agreement, when executed and delivered, will constitute the valid and legally binding obligations of the Seller, enforceable in accordance with its terms, except (a) as may be limited by applicable bankruptcy, insolvency, reorganization, or others laws of general application relating to or affecting the enforcement of creditors’ rights generally and (b) as may be limited by the effect of rules of law governing the availability of equitable remedies.
4.4.Transfer for Own Account. The Seller is selling the Shares and the OpCo Units for Seller’s own accounts only and not with a view to, or for sale in connection with, a distribution of the Shares or the OpCo Units within the meaning of the 1933 Act. No portion of the Purchase Price will be received indirectly by the Company.
4.5.No General Solicitation. At no time has the Seller presented the Purchaser with or solicited the Purchaser through any publicly issued or circulated newspaper, mail, radio, television, or other form of general advertisement or solicitation in connection with the transfer of the Shares.
4.6.No Broker-Dealer. The Seller has not effected this transfer of Shares and OpCo Unitsby or through a broker-dealer in any public offering.
4.7.Title to Shares. The Seller has valid marketable title to the Shares and OpCo Units to be transferred under this Agreement, free and clear of any pledge, lien, security interest, encumbrance, claim, or equitable interest (collectively, “Encumbrances”). The Seller hereby delivers to the Purchaser good title to the Shares and OpCo Units purchased by the Purchaser pursuant to the terms hereof free and clear of any Encumbrances. For purposes of clarity, the Seller represents that none of the Sharesand OpCo Units to be transferred under this Agreement remain subject to any Encumbrances.
4.8.Consents. All consents, approvals, authorizations, and orders required for the execution and delivery of this Agreement and the transfer of the Shares and OpCo Units under this Agreement have been obtained and are in full force and effect, except for any approval required by the Board of Managers of Nerdy LLC.
4.9.Sophisticated Seller; Access to Information. The Seller is a sophisticated entity familiar with transactions similar to those contemplated by this Agreement and has such knowledge and experience in financial and business matters that the Seller is capable of evaluating the merits and risks of such transactions. The Seller has evaluated the merits and risks of selling the Shares and the OpCo Units on the terms set forth in this Agreement and is willing to forego through such sale the potential for future economic gain that might be realized from the Shares and the OpCo Units. The Seller (a) has negotiated this Agreement on an arms-length basis and has had an opportunity to consult with the Seller’s legal and financial advisors concerning this Agreement and its subject matter and (b) has had access to such information regarding the business and finances of the Company and such other matters with respect to the Company as a reasonable person would consider in evaluating the transactions contemplated hereby, including, in particular, all information necessary to determine the fair market value of the Shares and the financial statements of the Company for all relevant periods. The Seller represents that the Seller has not relied on the Purchaser for any information regarding the Company or the value of the Shares or the OpCo Units. The Seller acknowledges that the Purchaser is not acting as a fiduciary or financial or investment adviser to the Seller, and has not given the Seller any investment advice, opinion or other information on whether the sale of the Shares and/or the OpCo Units is prudent. The Seller acknowledges that (i) the Purchaser currently may have, and later may come into possession of, information with respect to the Company that is not known to the Seller and that may be material to a decision to sell the Shares
and/or the OpCo Units (“Seller Excluded Information”), (ii) the Seller has determined to sell the Shares and the OpCo Units notwithstanding Seller’s lack of knowledge of the Seller Excluded Information and (iii) the Purchaser shall have no liability to the Seller, and the Seller waives and releases any claims that Seller might have against the Purchaser whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Seller Excluded Information in connection with the sale of the Shares and the OpCo Units and the transactions contemplated by this Agreement. The Seller acknowledges that the price for the Shares and the OpCo Units may significantly appreciate or depreciate over time and by agreeing to sell the Shares to the Purchaser pursuant to this Agreement, the Seller is giving up the opportunity to sell the Shares and the OpCo Units at a possible higher price in the future. The Seller understands that the Purchaser will rely on the accuracy and truth of the foregoing representations, and the Seller hereby consents to such reliance.
4.10.TRA. Seller hereby assigns all of its rights under that certain Tax Receivable Agreement between Nerdy Inc. and certain other persons named therein, dated as of September 20, 2021, with respect to the purchased OpCo Units, including any rights to Tax Benefit Payments (as defined within the Tax Receivable Agreement) with respect to the purchased OpCo Units. In connection with the assignment contemplated by this Section 4.10, the parties and the Company are entering into a joinder to the Tax Receivable Agreement in the form attached hereto as Exhibit A.
4.11.Conflicts. The execution, delivery, and performance of this Agreement by the Seller does not conflict with or result in the breach of any agreement, instrument, order, judgment, decree, law, or governmental regulation to which the Seller or the Shares being sold by the Seller pursuant to the terms hereof are subject.
5.GENERAL PROVISIONS.
5.1.Successors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Purchaser may assign any of its rights and obligations under this Agreement. The Seller shall not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Purchaser.
5.2.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law or choice of law provisions. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company’s principal place of business.
5.3.Further Assurances. The parties agree to execute such further documents and instruments and to take such further actions as may be reasonably necessary to carry out the purposes and intent of this Agreement.
5.4.Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and agreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.
5.5.Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the remainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never been contained in this Agreement.
5.6.Amendment and Waivers. This Agreement may be amended only by a written agreement executed by the Purchaser and the Seller. Any amendment effected in accordance with this section will be binding upon all parties hereto and each of their respective successors and assigns.
5.7.Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement.
5.8.Expenses. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses whether or not the transfer is consummated.
[Signature pages follow.]
IN WITNESS WHEREOF, the Seller and the Purchaser have each executed this Agreement, as of the Effective Date.
PURCHASER:
Cohn Investments LLC
/S/ Charles Cohn
_______________________________________
By: Charles Cohn
Title: Manager
SELLER:
/S/ Adam Weber
_______________________________________
Name: Adam Weber
DATED 16 August 2024
GREENVALE CAPITAL LLP
acting for and on behalf of certain funds and accounts managed or advised by it and
COHN FAMILY TRUST U/A/D 3/16/2017
__________________________________________________
SHARE SALE AGREEMENT
__________________________________________________
DOC ID - 5074563.3
THIS AGREEMENT is dated 16 August 2024 and is made
BETWEEN:
(1) GREENVALE CAPITAL LLP, a limited liability partnership registered under the laws of England and Wales with company number OC398679, whose registered office is at 1 Vere Street, London, England, W1G 0DF, acting for and on behalf of certain funds and accounts managed or advised by it as identified on Schedule 1 (such funds and accounts, the “Sellers”); and
(2) COHN FAMILY TRUST U/A/D 3/16/2017, a trust formed under the laws of Missouri, United States, whose registered office is at 231 S. Bemiston Ste 850, #23376, Saint Louis, MO 63105, United States (the “Buyer”).
WHEREAS:
A The Sellers are the sole beneficial owner of the Sale Shares.
B The Sellers have agreed to sell the Sale Shares and the Buyer has agreed to purchase the Sale Shares on the terms and conditions set out in this Agreement.
NOW IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:
Business Day means any day which is not a Saturday, a Sunday, or a public holiday in the United Kingdom or the United States;
Completion means completion of the sale and purchase of the Sale Shares in accordance with Clause 4;
Completion Date has the meaning given to that expression in Clause 4.1;
Price Per Share means the sum of USD0.88320 per Sale Share, being an amount equal to the volume weighted average price per share of Nerdy Inc. (the “Company”) as at 14 August 2024;
Purchase Price means the sum of USD7,948,800.00 being the Price Per Share multiplied by the number of Sale Shares, being price to be paid by the Buyer to purchase the Sale Shares; and
Sale Shares means 9,000,000 shares in the capital of the Company held by certain prime brokers for the benefit of the Sellers as set out in Schedule 1.
1.2 In this Agreement, unless the context requires otherwise:
(a) references to Clauses are references to clauses of this Agreement;
(b) headings are included for ease of reference only and shall not affect the interpretation of this Agreement;
(c) the singular shall include the plural and vice versa and references to any gender shall include references to the other genders;
DOC ID - 5074563.3
(d) the expression person shall mean any natural person, partnership, joint venture, corporation (wherever incorporated), trust, firm, association, government, governmental (or supra governmental) agency, authority or department, or any other entity, whether acting in an individual, fiduciary or other capacity; and
(e) any reference to a party shall mean any party to this Agreement and shall include their respective successors in title, assigns and personal representatives.
2. SALE
At Completion, the Sellers shall sell the Sale Shares (with full title guarantee and free from all encumbrances) and the Buyer shall purchase the Sale Shares, with effect from, and with all rights attaching or accruing to the Sale Shares at, the Completion Date (including the right to receive all dividends, distributions, and any return of capital declared, paid or made on or after that date).
3. CONSIDERATION
The total consideration for the sale of the Sale Shares shall be the Purchase Price which shall be paid by electronic transfer in accordance with the provisions of Clause 4.3.
4. COMPLETION
4.1 Completion shall take place not later than 5 Business Days of the date of this Agreement (the “Completion Date”), at a time agreed between the Sellers (acting by and through Greenvale Capital LLP) and the Buyer.
4.2 At Completion, the Sellers (acting by and through Greenvale Capital LLP) and the Buyer shall submit appropriate matched orders on the New York Stock Exchange or via Continental Stock Transfer & Trust Company (the Company’s transfer agent) in respect of the transfer of the Sale Shares at the Price Per Share, or otherwise arrange completion in such manner as is alternatively acceptable to each of them.
4.3 At Completion, the Buyer shall pay to the Sellers the total Purchase Price by electronic funds transfer to the bank accounts set in Schedule 1, such that each Seller is paid the Price Per Share in respect of each Sale Share sold by it (all as set out in Schedule 1).
5. WARRANTIES
5.1 Each Seller represents, warrants and undertakes to the Buyer that the following statements are true, accurate and not misleading as at the date of this Agreement, and the signatory hereto on behalf of the Sellers represents and warrants that it has full power and authority to make these representations and warranties on behalf of each Seller and to bind each Seller under this Agreement:
(a) such Seller is the sole beneficial owner of the Sale Shares held by it, and is entitled to sell, and transfer the full legal and beneficial interest in those Sale Shares to the Buyer on the terms of this Agreement, free and clear of any claim or encumbrance;
(b) the Sellers are together the sole beneficial owners of the Sale Shares;
(c) such Seller has the requisite power and authority to enter into and perform this Agreement; (d) such Seller is a sophisticated entity familiar with transactions similar to those contemplated
DOC ID - 5074563.3
in this Agreement and has has knowledge and experience in financial and business matter that such Seller is capable of evaluating the merits and risks of such transactions;
(e) such Seller has negotiated this Agreement on an arms-length basis and has had an opportunity to consult with such Seller’s legal and financial advisors concerning this Agreement and has had access to such information regarding the business and finances of the Company and such other matters with respect to the Company as a reasonable person would consider in evaluating the transactions contemplated hereby, including all information necessary to determine the fair market value of the Sale Shares and the financial statements of the Company for all relevant periods;
(f) such Seller has not relied on the Buyer or its affiliates for any information regarding the Company or the value of the Sale Shares;
(g) such Seller (i) acknowledges that the Buyer or its affiliates may have, and later may come into possession of, information with respect to the Company that is not known to the Seller and may be material to a decision to sell the Sale Shares (the “Excluded Information”), (ii) has determined to sell its Sale Shares notwithstanding its lack of knowledge of the Excluded Information; (iii) agrees that Buyer and its affiliates shall have no liability to the Sellers and such Seller waives and releases any claims that Seller might have against the Buyer whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Excluded Information in connection with the sale of the Sale Shares; and (iv) acknowledges that the price of the Sale Shares may significantly appreciate or depreciate over time and by agreeing to sell the Sale Shares to the Buyer the Seller is giving up the opportunity to sell the Shares at a possible higher price in the future (except as otherwise protected by Section 6 herein)
5.2 The Buyer represents, warrants and undertakes to the Sellers that the following statements are true, accurate and not misleading as at the date of this Agreement:
(a) the Buyer has the requisite power and authority to enter into and perform this Agreement (and specifically has obtained all necessary approvals, shareholder authorities or other consents and authorisations necessary or appropriate to purchase the Sale Shares as set out in this Agreement);
(b) the Buyer has evaluated the merits and risks of purchasing the Sale Shares on the terms of this Agreement on its own and without reliance upon the Sellers or any of them, or upon Greenvale Capital LLP, has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating the merits and risks of such purchase, is aware of and has considered the financial risks and financial hazards of purchasing the Sale Shares on the terms set out in this Agreement; and
(c) no part of the funds used by the Buyer to fund the Purchase Price has been, or shall be, directly or indirectly derived from, or related to, any illegal activity, including anti-money laundering laws and regulations, and no part of the funds used by the Buyer to fund the Purchase Price shall cause any Seller or Greenvale Capital LLP to be in violation of any applicable national and international sanctions laws and regulations.
6. FUTURE SALES
If all or any of the Sale Shares are sold, monetized or otherwise disposed of (or becomes subject to an agreement, conditional or not, for its sale, monetization or disposal) within 6 months of the
DOC ID - 5074563.3
Completion Date, and the disposal price (which shall include all consideration in whatever form linked to the disposal) implies a value of a Sale Share which is higher than the Price Per Share, the Purchase Price shall be recalculated by reference to the aggregate value of the Sale Shares implied by such disposal price, and each Seller shall be entitled to be paid by the Buyer within 15 Business Days following the consummation of the sale, monetization or other disposal transaction , an amount equal to the difference between the amount that Seller was paid at the Completion Date and the amount such Seller would have been paid on the basis of the Price Per Share as so recalculated (net of any related taxes paid by Buyer). For the purposes of this clause, a monetization of the Sale Shares shall include (a) a direct or indirect acquisition of assets of the Company or its Subsidiaries (including any voting equity interests of Subsidiaries, but excluding sales of assets in the ordinary course of business) of more than 50% of the fair market value of the Company's and its Subsidiaries' consolidated assets or to which more than 50% of the Company's and its Subsidiaries' net revenues on a consolidated basis are attributable; (b) a direct or indirect acquisition of more than 50% of the voting equity interests of the Company or any of its Subsidiaries whose business constitutes more than 50% of the consolidated net revenues or assets of the Company and its Subsidiaries, taken as a whole; (c) a tender offer or exchange offer that if consummated would result in any person or group (as defined in Section 13(d) of the US Exchange Act of 1934, as
amended (the “Exchange Act”)) beneficially owning (within the meaning of Section 13(d) of the Exchange Act) more than 50% of the voting power of the Company; (d) a merger, consolidation, other business combination, or similar transaction involving the Company or any of its Subsidiaries, pursuant to which such person or group (as defined in Section 13(d) of the Exchange Act) would own more than 50% of the consolidated net revenues or assets of the Company, and its Subsidiaries, taken as a whole; (e) a liquidation, dissolution (or the adoption of a plan of liquidation or dissolution), or recapitalization or other significant corporate reorganization of the Company or one or more of its Subsidiaries which, individually or in the aggregate, generate or constitute more than 50% of the consolidated net revenues or assets of the Company and its Subsidiaries, taken as a whole; or (f) any combination of the foregoing . For purposes of this Agreement, a "Subsidiary" of the Company means any other person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by the Company and/or by one or more of its Subsidiaries.
7. GENERAL
7.1 Except as required by law, or in court proceedings, or to give effect to this Agreement, no party shall make any public statement regarding this Agreement or its subject matter. For the avoidance of doubt, it is understood that this Agreement will be disclosed in filings with the US Securities and Exchange Commission.
7.2 This Agreement may be executed in counterparts, which taken together shall constitute one and the same agreement.
7.3 This Agreement (together with any documents referred to in it) constitutes the whole agreement between the parties and no modification, variation or amendment of this Agreement shall be effective unless such modification, variation or amendment is in writing and has been signed by or on behalf of all the parties.
7.4 A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement shall continue in force.
7.5 No waiver of any breach of or default under this Agreement shall be effective unless such waiver is in writing and has been signed by the party against which it is asserted.
DOC ID - 5074563.3
7.6 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
7.7 The parties irrevocably agree that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
[signature page overleaf]
DOC ID - 5074563.3
SIGNED by or on behalf of the parties on the date set out above.
/s/ Andrew Wall
………………………………..
duly authorised, for and on behalf of
THE SELLERS identified on Schedule 1
acting by and through their investment advisor
GREENVALE CAPITAL LLP
/s/ Charles Cohn
………………………………..
duly authorised, for and on behalf of
Cohn Family Trust u/a DTD 3/16/2017
DOC ID - 5074563.3
` Schedule 1
JJ
| | | | | | | | | | | | | | |
Custodian | International UBS | International UBS | JP Morgan Securities LLC | JP Morgan Securities LLC |
CUSIP | BNZJTJ4 | BNZJTJ4 | BNZJTJ4 | BNZJTJ4 |
ISIN | US64081V1098 | US64081V1098 | US64081V1098 | US64081V1098 |
Security Name | NERDY INC | NERDY INC | NERDY INC | NERDY INC |
Proceeds | $6,623,739.46 | $955,613.57 | $216,630.41 | $138,748.95 |
Price | 0.88320 | 0.88320 | 0.88320 | 0.88320 |
Position | 7,499,705.00 | 1,081,990.00 | 245,279.00 | 157,098.00 |
Account Full Legal Name | GREENVALE CAPITAL (CAYMAN) MASTER FUND LIMITED | ACTING FOR AND ON CROWN/GREENVALE CROWN MANAGED ACCOUNTS SPC SEGREGATED PORTFOLIO BEHALF OF | COMPASS SAV II LLC | COMPASS OFFSHORE SAV II PCC LIMITED |
THE SELLERS AND THE SALE SHARES
DOC ID - 5074563.3
J
Morgan US64081V1098 BNZJTJ4
NERDY
$14,067.61 0.88320
15,928.00
Stanley & INC
Co
International
Plc
DOC ID - 5074563.3
CROWN MANAGED
ACCOUNTS SPC
ACTING FOR AND ON
BEHALF OF
CROWN/GREENVALE
SEGREGATED
PORTFOLIO
The undersigned hereby agree that they are filing this statement jointly pursuant to Rule 13d-1(k)(1). Each of them is responsible for the timely filing of such Schedule 13D/A and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.
In accordance with Rule 13d-1(k)(1) promulgated under the Securities and Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each other on behalf of each of them of to such a statement on Schedule 13D/A with respect to the Class A Common Stock of Nerdy Inc. beneficially owned by each of them. This Joint Filing Agreement shall be included as an exhibit to such Schedule 13D/A.
Dated: August 26, 2024
/s/ Charles Cohn
Charles Cohn
/s/ Allison Cohn
Allison Cohn
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