EXHIBIT 10.27
(domestic version,
which is the same
in all material
respects as the
international
version)
EXECUTIVE PARTICIPATION PROGRAM
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STOCK SUBSCRIPTION AGREEMENT
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(BASIC EQUITY ACCOUNT)
THIS STOCK SUBSCRIPTION AGREEMENT (the "Agreement") is entered into as
of _____________________ by and between Korn/Ferry International, a California
corporation (the "Company") and __________________________________________,
an officer of the Company ("Executive").
R E C I T A L S
A. The Company is a corporation duly organized and existing under
the laws of the State of California.
B. In 1991, the Company adopted the Executive Participation Program,
which, as amended prior to the date hereof, provides for the sale to certain
officers of the Company of shares of Company Common Stock ("Shares") on the
terms and subject to the conditions set forth in this Agreement and the
schedules and exhibits hereto.
C. Executive desires to purchase Shares under the Executive
Participation Program on the terms and subject to the conditions set forth in
this Agreement and the schedules and exhibits hereto.
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual promises set forth below, the parties hereto agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, the following
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definitions apply:
"Adjustment Shares" means a number of Shares equal to the Total
Purchase Price divided by the Adjustment Value.
"Adjustment Value" means the sum of (A) the Value of a Share as
of the end of the Fiscal Year immediately preceding the date hereof, plus or
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minus (as the case may be) (B) a prorated portion as of the date hereof of the
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increase or decrease from such Value to the Value of a Share as of the end of
the Fiscal Year immediately following the date hereof, allocating for such
purpose such increase or decrease in equal monthly increments over such Fiscal
Year period.
"Basic Equity Account" means the dollar amount set forth as Item
1 of Schedule 1 hereto.
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"Book Value" means the book value of a Share, as determined in
accordance with generally accepted accounting principles applied in accordance
with the usual accounting practices of the Company.
"Book Value of Current Holdings" means the dollar amount set
forth as Item 3 of Schedule 1 hereto, which equals the Book Value of the Current
Holdings as of the end of the Fiscal Year immediately preceding the date hereof,
assuming for this purpose that the Phantom Units were Shares.
"Cash Value of Current Holdings" means the Book Value of Current
Holdings minus any amounts owing by the Executive to the Company as of the date
hereof pursuant to the Korn/Ferry International Phantom Stock Plan, effective
May 1, 1988.
"Current Holdings" means the shares of Common Stock of the
Company held by Executive as of the date hereof or which Executive is entitled
to receive pursuant to any agreement between Executive and the Company (other
than this Agreement) in effect as of the date hereof, together with any Phantom
Units held by Executive as of the date hereof.
"Deferred First Installment Shares" means the number of Shares
equal to twenty-five percent (25%) of the First Installment divided by the Value
as of the end of the Fiscal Year immediately following the date hereof.
"Deferred Second Installment Shares" means the number of Shares
equal to twenty-five percent (25%) of the Second Installment divided by the
Value as of the end of the Fiscal Year immediately following the date hereof.
"Deferred Shares" means the Deferred First Installment Shares and
the Deferred Second Installment Shares.
"Fiscal Year" means the fiscal year of the Company, which begins
each May 1 and ends each April 30.
"First Installment" means the dollar amount set forth as Item 6
of Schedule 1 hereto, which equals twenty percent (20%) of the Basic Equity
Account minus the Cash Value of Current Holdings, but in no event less than
zero.
"First Installment Shares" means the Initial First Installment
Shares and the Deferred First Installment Shares.
"Initial First Installment Shares" means the number of Shares
equal to seventy-five percent (75%) of the First Installment divided by the
Value as of the end of the Fiscal Year immediately preceding the date hereof.
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"Initial Second Installment Shares" means the number of Shares
equal to seventy-five percent (75%) of the Second Installment divided by the
Value as of the end of the Fiscal Year immediately preceding the date hereof.
"Initial Shares" means the Initial First Installment Shares and
the Initial Second Installment Shares.
"Phantom Units" means phantom shares issued pursuant to the
Korn/Ferry International Phantom Stock Plan, effective May 1, 1988.
"Second Installment" means the dollar amount set forth as Item 7
of Schedule 1 hereto, which equals eighty (80%) of the Basic Equity Account
minus the remainder of the Cash Value of Current Holdings, if any, after
calculation of the First Installment.
"Second Installment Shares" means the Initial Second Installment
Shares and the Deferred Second Installment Shares.
"Shares" has the meaning set forth in Recital B.
"Total Purchase Price" means the dollar amount set forth as Item
5 of Schedule 1 hereto, which equals the Basic Equity Account minus the Cash
Value of Current Holdings.
"U.S. Person" has the meaning set forth in Regulation S of the
Securities Act of 1933, as amended. Without limitation and as further qualified
in Regulation S, a "U.S. Person" is as set forth on Schedule 2 hereto and
incorporated herein by this reference.
"Value" means, for purposes of determining the price at which a
Share will be sold or purchased pursuant to this Agreement, (a) the Book Value
of such Share as of the end of the Fiscal Year immediately preceding (or
immediately following, as set forth herein) such sale or purchase, or (b) such
other value or formula for determining value as may be specified from time to
time after the date hereof in a resolution adopted by such percentage of the
shareholders of the Company as are then required pursuant to the Company's
Articles of Incorporation as the value or formula for determining value to be
used in connection with any sales and purchases of Shares by the Company,
including, without limitation, sales and purchases pursuant to the Executive
Participation Program.
2. SUBSCRIPTION. Executive hereby subscribes for and agrees to
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purchase the First Installment Shares and the Second Installment Shares for an
amount equal to the Total Purchase Price, with such Shares being issuable and
such amount being payable in accordance with the provisions of this Agreement.
Executive agrees that this subscription is subject to acceptance or rejection by
the Company, in its
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discretion, in whole or in part, and shall be irrevocable upon acceptance by the
Company.
3. METHOD OF PAYMENT. Executive shall pay the Total Purchase Price
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by a combination of the options described in Sections 4 and 5 below.
Simultaneously with executing and delivering this Agreement, Executive shall
complete, execute and deliver to the Company a Payment Election in the form of
Exhibit A hereto, which Payment Election shall indicate the methods of payment
selected by Executive. Executive acknowledges that such Payment Election shall
be irrevocable and may only be modified with the prior written consent of the
Company.
4. FIRST INSTALLMENT. The First Installment shall be paid by
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Executive to Company as follows:
(a) Seventy-five percent (75%) of the First Installment shall be
paid on or prior to the date hereof pursuant to paragraphs (i) or (ii) below;
(i) in cash; or
(ii) By delivery of a promissory note in the form of
Exhibit B attached hereto (the "First Installment Note"). The First Installment
Note shall bear interest at a rate per annum equal to the reference rate plus
.75% (i.e., 75 basis points) of Bank of America, as in effect from time to time,
commencing on the date hereof. Principal and interest payments on the First
Installment Note shall be payable as follows:
(A) One-third of the principal, plus all accrued and
unpaid interest on the principal through the date payment is made, on the last
business day of the first full month immediately following the date hereof
(i.e., if the date hereof is not the first day of a month, then such payment
will be due on the last business day of the following month);
(B) One-third of the principal, plus all accrued and
unpaid interest on the principal through the date payment is made, on the last
business day of the sixth full month following the date hereof; and
(C) One-third of the principal, plus all accrued and
unpaid interest on the principal through the date payment is made, on the last
business day of the twelfth full month following the date hereof.
(b) Twenty-five percent (25%) of the First Installment shall be
paid within thirty (30) days after the completion of the Company's audited
financial statements as of the end of the Fiscal Year following the date hereof,
as follows:
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(i) in cash including accrued interest at a rate per
annum equal to the reference rate plus .75% (i.e., 75 basis points) of Bank of
America, as in effect from time to time, commencing on the date hereof; or
(ii) By amendment to the First Installment Note in the
form of Exhibit H attached hereto increasing the principal thereof by such
amount payable, plus all accrued and unpaid interest on such additional
principal amount through the date payment is made, on the last business day of
the eighteenth full month following the date hereof.
5. SECOND INSTALLMENT. The Second Installment shall be paid by
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Executive to Company as follows:
(a) Seventy-five percent (75%) of the Second Installment shall
be paid on or prior to the date hereof pursuant to paragraphs (i), (ii) or (iii)
below;
(i) In cash;
(ii) By delivery of a promissory note in the form of
Exhibit C attached hereto (the "Second Installment Note - Option 1"). The Second
Installment Note - Option 1 shall bear interest at a rate per annum equal to the
reference rate plus .75% (i.e., 75 basis points) of Bank of America, as in
effect from time to time, commencing on the date hereof. Principal and interest
payments on the Second Installment Note - Option 1 shall commence on the 15th of
the first full month following the date hereof and be payable semi-monthly and
on the date any bonus payment is made by the Company to Executive, and will be
computed based on levels of gross compensation for each Fiscal Year as set forth
in the Second Installment Note - Option 1, as follows:
(A) Six percent (6%) of the first $100,000 of
compensation;
(B) Ten percent (10%) of the next $50,000 of
compensation;
(C) Fifteen percent (15%) of the next $100,000 of
compensation; and
(D) Twenty-five percent (25%) of compensation in
excess of $250,000.
Payments will be applied first to accrued and unpaid
interest and second to reduce the principal outstanding; or
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(iii) By delivery of a promissory note in the form of
Exhibit D attached hereto (the "Second Installment Note - Option 2"). The Second
Installment Note - Option 2 shall bear interest at a rate per annum equal to the
reference rate plus .75% (i.e., 75 basis points) of Bank of America, as in
effect from time to time, commencing on the date hereof. Principal and interest
payments shall commence on the last day of the fiscal quarter ending after the
date hereof and shall be made on a quarterly basis in twelve (12) equal
installments of principal plus all accrued and unpaid interest on the total
principal amount.
(b) Twenty-five percent (25%) of the Second Installment shall be
paid within thirty (30) days after the completion of the Company's audited
financial statements as of the end of the Fiscal Year following the date hereof,
as follows:
(i) in cash including accrued interest at a rate per
annum equal to the reference rate plus .75% (i.e., 75 basis points) of Bank of
America, as in effect from time to time, commencing on the date hereof;
(ii) By amending the Second Installment Note - Option 1 in
the form of Exhibit I attached hereto or by amending the Second Installment Note
- Option 2 in the form of Exhibit J attached hereto to increase the principal
thereof by such amount. In the case of the Second Installment Note - Option 2,
the maturity will be extended by one year and payments will be made on a
quarterly basis in four (4) equal installments of principal plus all accrued and
unpaid interest on the total principal amount; or
(iii) By delivery of a Second Installment Note - Option 1
or, provided Executive has elected payment in cash pursuant to Section 5(a)(i)
above, by delivery of a Second Installment Note - Option 2, with such changes
thereto as are necessary to reflect the date of execution thereof on the
maturity and payment schedule.
(c) Salary Deductions. Executive may elect to have principal
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and interest payments on the Second Installment Note - Option 1 withheld by the
Company as (semi-) monthly payroll deductions from base salary and deductions
from bonus payments, if any, by executing and delivering to the Company the
Authorization for Payroll Deduction for Loan attached hereto as Exhibit E.
6. ISSUANCE OF SHARES. Subject to the provisions of Section 7
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below, Company will issue to the Executive against payment of the purchase price
therefor:
(a) As of the date hereof, the Initial First Installment Shares
and the Initial Second Installment Shares.
(b) On the date Executive pays the deferred portion of the First
Installment and the Second Installment, a number of shares equal to the Deferred
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Shares, plus or minus (as the case may be) the difference between the Adjustment
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Shares and the sum of the Deferred Shares and the Initial Shares (e.g., if the
total of the First Installment Shares and the Second Installment Shares are
greater than the Adjustment Shares, the Deferred Shares will be reduced by such
excess and if the total of the First Installment Shares and the Second
Installment Shares are less than the Adjustment Shares, the Deferred Shares will
be increased by such excess).
Notwithstanding any other provision hereof, the Company will not
issue any fractional Shares, but rather will make an appropriate cash payment to
Executive in lieu of any issuance of a fractional Share.
7. STOCK REPURCHASE AGREEMENT AND SHARE PLEDGE AGREEMENT. The
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Shares will be subject to the terms and conditions of a Stock Repurchase
Agreement in the form of Exhibit F hereto (the "Stock Repurchase Agreement").
Executive shall execute and deliver to the Company an original counterpart
thereof. The Stock Repurchase Agreement provides that the certificates
evidencing the Shares will remain in the possession of the Company to secure the
Company's purchase rights thereunder. Further, all of the promissory notes made
by Executive in favor of Company pursuant to Sections 4 or 5 will be secured by
the Shares pursuant to a Share Pledge Agreement in the form of Exhibit G
attached hereto. Executive shall execute and deliver to the Company an original
counterpart thereof.
8. INVESTMENT REPRESENTATIONS AND WARRANTIES. Executive hereby
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represents and warrants as indicated below:
(a) Executive has reviewed, completed and executed Schedule 3
hereto which is incorporated herein and made a part hereof by this reference,
and the information provided to the Company in such Schedule 3 is complete and
accurate.
(b) Executive has such knowledge and experience in financial and
business matters and Executive is capable of evaluating the merits and risks of
an investment in the Company and of making an informed investment decision with
respect thereto.
(c) Executive has adequate means of providing for current needs
and personal contingencies, has no need for liquidity in the investment, and is
able to bear the economic risk of an investment in the Company of the size
contemplated.
(d) Executive will purchase the Shares for Executive's own
account and for investment purposes only, and Executive is not purchasing the
Shares with a view to or for sale in connection with any distribution, resale or
disposition of the Shares.
(e) The information provided in this Section (including without
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limitation the information set forth on Schedule 3 hereto) may be relied upon in
determining whether the offering in which the Executive proposes to participate
is exempt from registration under the Securities Act of 1933, as amended, and
applicable state securities laws and the rules promulgated thereunder.
(f) Executive will notify the Company immediately of any
material changes to the information given by Executive in this Section occurring
prior to the closing of any purchase by Executive of the Shares.
(g) Executive is an officer of the Company and as such has a
high degree of familiarity with the business and operations of the Company and
understands and has evaluated the merits and risks of the purchase of the
Shares.
(h) Executive has received a copy of the most recent Executive
Equity Participation Materials of the Company (the "Materials"), prepared by the
Company to describe the investment in the Company through purchase of the
Shares, and Executive understands all of the information contained therein.
Executive represents that Executive is relying solely upon the Materials and
Executive's knowledge of the Company for the purpose of making Executive's
decision to purchase the Shares, and Executive understands that no person has
been authorized in connection with this offering to make any representations
other than those contained in the Materials, and any representations not therein
contained, if given or made, must not be relied upon as having been authorized
by the Company.
9. ACKNOWLEDGMENTS AND COVENANTS OF EXECUTIVE. Executive
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acknowledges and agrees as follows:
(a) The Company has made available to Executive the opportunity
to ask questions of, and receive answers from, persons acting on behalf of the
Company concerning the Company and the proposed sale of Shares to Executive as
described in the Materials, and otherwise to obtain any additional information,
to the extent that the Company or its executive officers possess such
information or could acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information contained in the Materials;
and
(b) Executive further acknowledges and agrees with the Company
that (i) the Shares have not been, and the sale of the Shares will not be,
registered under the Act, or qualified under any state securities laws; (ii) any
sale or other disposition of the Shares by Executive or by any transferee from
Executive will be limited to a transaction permitted by the Stock Repurchase
Agreement and as to which, in each instance, an exemption from the registration
requirements of the Act and any applicable requirements under state securities
laws can be established.
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10. MISCELLANEOUS.
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(a) Amendment. No change, amendment or modification of this
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Agreement shall be valid unless it is in writing and signed by the Company and
the Executive.
(b) Entire Agreement. This Agreement contains the entire
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agreement of the parties hereto and supersedes any prior written or oral
agreements between them concerning the subject matter contained herein.
(c) Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Waiver. No waiver of any right pursuant hereto or waiver of
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any breach hereof shall be effective unless in writing and signed by the party
waiving such right or breach. No waiver of any right or waiver of any breach
shall constitute a waiver of any other or similar right or breach, and no
failure to enforce any right hereunder shall preclude or effect the latter
enforcement of such right.
(e) Headings. The headings of the various sections herein are
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solely for the convenience of the parties and shall not effect or control the
meaning or construction of this Agreement.
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(f) Notices. Any notice required or permitted to be given
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hereunder shall be in writing and shall be mailed first class, postage prepaid,
or shall be personally delivered. Any communication so addressed and mailed
shall be deemed to be given seven days after mailing and any communication
delivered in person shall be deemed to be given when receipted for, or actually
received by, the recipient. All such communications shall be addressed as
follows:
If to the Company:
Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Corporate Office
Vice President - Administration
If to the Executive:
At Executives address as shown in the Company's books
or to such other address as is provided by the parties hereto from time to time.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the day and year first above written.
EXECUTIVE
By: ___________________________
Name: _____________________
KORN/FERRY INTERNATIONAL,
a California corporation
By: ____________________________
Name: Xxxxxx X. Xxxxx
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Title: VP Finance & CFO
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SCHEDULE 1
Attached to and made a part of that certain Executive
Participation Program Stock Subscription Agreement (Basic Equity
Account) dated ____________________ between Korn/Ferry
International and
________________________________________________. *
1. Basic Equity Account equals $__________
2. Book Value at end of Preceding Fiscal Year equals $__________
3. Book Value of Current Holdings equals $__________
4. Cash Value of Current Holdings equals $__________
5. Total Purchase Price equals $__________
6. First Installment equals $__________
7. Second Installment equals $__________
___________
* All dollar amounts are in U.S. dollars.
EXECUTIVE
By: ____________________________
Name: ______________________
S1-1
SCHEDULE 2
"U.S. PERSON"
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or
incorporated under the laws of the United States;
(iii) Any estate of which any executor or administrator is
a U.S. Person;
(iv) Any trust of which trustee is a U.S. Person;
(v) Any agency or branch of a foreign entity located in
the United States;
(vi) Any non-discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person;
(vii) Any discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States; and
(viii) Any partnership or corporation if;
(A) Organized or incorporated under the laws of any
foreign jurisdiction; and
(B) Formed by a U.S. Person principally for the
purpose of investing in securities not registered under the Securities Act of
1933, as amended.
S2-1
SCHEDULE 3
REPRESENTATIONS AND WARRANTIES
Attached to and made a part of that certain Executive
Participation Program Stock Subscription Agreement (Basic Equity
Account) dated _____________________ between Korn/Ferry
International and ______________________________________________.
(a) Accredited Domestic Executives. Executive should initial
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each of the following representations, if applicable:
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_____ (i) Executive is a U.S. Person.
_____ (ii) Executive's individual net worth or joint net worth
with Executive's spouse exceeds $1,000,000.
_____ (iii) Executive's income (including, but not limited to,
salary, bonus, interest and dividend income and vested contributions
to any pension or profit sharing plan) was in excess of $200,000 in
each of the last two years, and Executive reasonably expects an income
in excess of $200,000 in this year.
_____ (iv) Executive's joint income with Executive's spouse
(including, but not limited to salary, bonus, interest and dividend
income and vested contributions to any pension or profit sharing plan)
was in excess of $200,000 in each of the last two years, and Executive
reasonably expects a joint income in excess of $200,000 in this year.
_____ (v) Executive's joint income with Executive's spouse
(including, but not limited to salary, bonus, interest and dividend
income and vested contributions to any pension or profit sharing plan)
was in excess of $300,000 in each of the last two years, and Executive
reasonably expects a joint income in excess of $300,000 in this year.
_____ (vi) Executive's investment in the Shares does not
exceed 10% of Executive's joint net worth with Executive's spouse.
EXECUTIVE
By: ___________________________
Name: _____________________
EXHIBIT A
PAYMENT ELECTION
PAYMENT ELECTION
Delivered pursuant to that certain Stock Subscription Agreement (Basic
Equity Account) (the "Agreement") entered into as of _______________
by and between Korn/Ferry International, a California corporation (the
"Company") and ________________________________, an officer of the
Company ("Executive").
Capitalized terms used but not otherwise defined in this Exhibit A
have the same meanings set forth in the Agreement.
Pursuant to Section 3 of the Agreement, Executive hereby elects to pay the Total
Purchase Price of $ __________ in the methods indicated in paragraphs 1, 2, 3
and 4 below. Executive acknowledges that this Payment Election is irrevocable
and may only be modified with the prior written consent of the Company. All
amounts are in United States dollars.
1. First Installment -- Initial
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Initial First Installment = First Installment x 75% = $____________
The Initial First Installment shall be paid by the Executive to the Company
on or prior to the date of the Agreement pursuant to the paragraphs
initialed and completed below as follows:
Executive's Executive to
Initial Method of Payment Insert Amount
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_______ Amount to be paid in cash on or
prior to the date hereof, pursuant
to paragraph 4 (a) (i) of the
Agreement: $____________
_______ Amount to be paid by delivery of
the First Installment Note,
which is executed and enclosed,
pursuant to Section 4 (a) (ii) of
the Agreement: $____________
A-1
2. First Installment -- Deferred
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Deferred First Installment = First Installment x 25% = $____________
The Deferred First Installment shall be paid by the Executive to the
Company within thirty (30) days of the Company's notification of the
completion of its audited financial statements as of the end of the Fiscal
Year following the date of the Agreement pursuant to the paragraphs
initialed and completed below as follows:
Executive's Executive to
Initial Method of Payment Insert Amount
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_______ Deferred First Installment to be
paid in cash on or prior to the
date hereof, pursuant to
paragraph 4 (a) (i) of the
Agreement: $____________
_______ Deferred First Installment plus
accrued interest to be paid in
cash within thirty (30) days
after Company's audited financial
statements as of the end of the
Fiscal Year following the date
hereof, pursuant to paragraph 4
(b) (i) of the Agreement: $____________
_______ Amount to be paid by amendment to
the First Installment Note, which
is executed and enclosed,
pursuant to Section 4 (b) (ii) of
the Agreement: $____________
3. Second Installment -- Initial
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Initial Second Installment = Second Installment x 75% = $____________
The Initial Second Installment shall be paid by the Executive to the
Company on or prior to the date of the Agreement pursuant to the paragraphs
initialed and completed below as follows:
Executive's Executive to
Initial Method of Payment Insert Amount
------- ----------------- -------------
_______ Amount to be paid in cash on or
prior to the date hereof,
pursuant to paragraph 5 (a) (i)
of the Agreement: $____________
A-2
_______ Amount to be paid by delivery of
the Second Installment Note --
Option 1, which is executed and
enclosed, pursuant to Section 5
(a) (ii) of the Agreement: $____________
_______ Amount to be paid by delivery of
the Second Installment Note --
Option 2, which is executed and
enclosed, pursuant to Section 5
(a) (iii) of the Agreement: $____________
4. Second Installment -- Deferred
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Deferred Second Installment = Second Installment x 25% = $____________
The Deferred Second Installment shall be paid by the Executive to the
Company within thirty (30) days of the Company's notification of the
completion of its audited financial statements as of the end of the Fiscal
Year following the date of the Agreement pursuant to the paragraphs
initialed and completed below as follows:
Executive's Executive to
Initial Method of Payment Insert Amount
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_______ Deferred Second Installment to be
paid in cash on or prior to the
date hereof, pursuant to
paragraph 5 (a) (i) of the
Agreement: $____________
_______ Deferred Second Installment plus
accrued interest to be paid in
cash within thirty (30) days
after Company's audited financial
statements as of the end of the
Fiscal Year following the date
hereof, pursuant to paragraph 5
(b) (i) of the Agreement: $____________
_______ Amount to be paid by amendment to
the Second Installment Note --
Option 1, which is executed and
enclosed, pursuant to Section 5
(b) (ii) of the Agreement: $____________
A-3
_______ Amount to be paid by amendment to
the Second Installment Note --
Option 2, which is executed and
enclosed, pursuant to Section 5
(b) (ii) of the Agreement: $____________
_______ Amount to be paid by delivery of
the Second Installment Note --
Option 1, which is executed and
enclosed, pursuant to Section 5
(b) (iii) of the Agreement (This
option is available only if the
Executive has not utilized such a
promissory note under paragraph 3
hereof): $____________
_______ Amount to be paid by delivery of
the Second Installment Note --
Option 2, which is executed and
enclosed, pursuant to Section 5
(b) (iii) of the Agreement (This
option is available only if the
Executive has not utilized such a
promissory note under paragraph 3
hereof): $____________
Dated:________________ By: __________________________
Name:_____________________
A-4
EXHIBIT B
FIRST INSTALLMENT NOTE
SECURED PROMISSORY NOTE
FIRST INSTALLMENT NOTE
$________________ Dated:__________________
FOR VALUE RECEIVED, the undersigned,
________________________________________________________, an individual
("Maker"), hereby unconditionally promises to pay to the order of KORN/FERRY
INTERNATIONAL ("Payee"), in the manner and at the place hereinafter provided,
the principal amount of $_____________ (the "Principal Amount"). Maker shall
make mandatory payments in accordance with Section 2 below and Maker may make
voluntary prepayments in accordance with Section 3 below.
Maker also promises to pay interest on the unpaid Principal Amount
hereof, which shall accrue commencing on the date hereof until paid in full, at
an adjustable rate determined for each Fiscal Year (as defined below) that is
equal to the reference rate plus .75% (i.e., 75 basis points) of Bank of America
as in effect on the last day of the preceding Fiscal Year (which reference rate
was _____%). For purposes hereof, "Fiscal Year" shall mean the twelve month
period commencing each May 1 and ending each April 30. All computations of
interest shall be made by Payee on the basis of a 365 day year, for the actual
number of days elapsed during the relevant period (including the first day but
excluding the last day).
This Note is issued pursuant to the Stock Subscription Agreement
(Basic Equity Account) (the "Subscription Agreement") and the Stock Repurchase
Agreement (the "Stock Repurchase Agreement"), each between Maker and Payee and
dated as of the date hereof, and is subject to the terms and conditions thereof.
The shares of common stock of Payee issuable to Maker pursuant to the
Subscription Agreement are referred to herein as the "Shares".
1. PAYMENTS. All payments of principal and interest in respect of
--------
this Note shall be made in lawful money of the United States of America in same
day funds at the executive offices of Payee located at 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as shall be
designated in a written notice delivered to Maker. Whenever any payment on this
Note shall be stated to be due on a day that is not a business day, such payment
shall instead be made on the next succeeding business day, and such extension of
time shall be included in the computation of interest payable on this Note.
Each payment hereunder shall be credited first to interest then due and the
remainder of such payment shall be credited to principal.
B-1
2. MANDATORY PAYMENTS.
------------------
(a) Maker shall make payments on this Note in an amount equal to:
(i) One-third of the Principal Amount, plus all interest
accrued on the Principal Amount through the date payment is made, on the last
business day of the first full month immediately following the date hereof;
(ii) One-third of the Principal Amount, plus all interest
accrued on the Principal Amount through the date payment is made, on the last
business day of the sixth full month following the date hereof; and
(iii) One-third of the Principal Amount, plus all interest
accrued on the Principal Amount through the date payment is made, on the last
business day of the twelfth full month following the date hereof.
(b) Maker may authorize Payee to withhold amounts, if any, otherwise
payable to Maker from Payee as bonus payments or advances on bonus prior to
final maturity hereof, and to apply such to payments then due under this Note by
delivering to Payee the Authorization for Payroll Deduction for Loan in
accordance with the terms of the Subscription Agreement.
(c) Notwithstanding the foregoing, the Principal Amount, together
with accrued interest thereon, shall become due and payable in full immediately
upon the termination of Maker's employment with Payee or its affiliates or
Maker's death; provided, however, that if upon such termination of employment or
death Payee is prohibited from purchasing the Shares by applicable law or any
contract or agreement binding on Payee, this Note shall continue in full force
and effect until such time as Payee notifies Maker in writing that it is legally
and contractually permitted to purchase the Shares, at which time the principal
amount of this Note, together with accrued interest thereon, shall become
immediately due and payable.
3. VOLUNTARY PREPAYMENTS. Maker shall have the right at any time
---------------------
and from time to time to prepay the principal and interest of this Note in whole
or in part, without premium or penalty; provided that each such prepayment shall
be in a minimum amount of One Thousand Dollars ($1,000) and integral multiples
of that amount, or the amount of principal and interest then outstanding,
whichever is less. All prepayments will be applied to payments in reverse order
of maturity.
4. PLEDGE OF SECURITY. Maker has entered into a Pledge Agreement
------------------
with Payee dated as of the date hereof (the "Pledge Agreement") pursuant to
which Maker pledges the Shares as security for this Note. All certificates or
other instruments
B-2
representing or evidencing such Shares shall be delivered to and held by Payee
pursuant to the terms of the Stock Repurchase Agreement and the Pledge
Agreement.
5. REPRESENTATIONS AND WARRANTIES. Maker hereby represents and
------------------------------
warrants to Payee that:
(a) This Note constitutes the legally valid and binding obligation of
Maker enforceable against Maker in accordance with its terms.
(b) Maker is the legal and beneficial owner of the Shares free and
clear of any lien, security interest, preferential arrangement or other charge
or encumbrance except for the security interest created by the Pledge Agreement.
(c) The pledge of the Shares pursuant to the Pledge Agreement creates
a valid first priority security interest in the Shares, securing the payment of
the obligations under this Note.
6. EVENTS OF DEFAULT. The occurrence of any of the following events
-----------------
shall constitute an "Event of Default":
(a) failure of Maker to pay any principal or interest under this Note
when due, whether by acceleration (including, without limitation, acceleration
pursuant to Section 2(c) hereof), by mandatory payment or otherwise, and such
failure is not cured within 10 days;
(b) Maker shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or substantially all of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case of
bankruptcy under the U.S. Federal Bankruptcy Code (as now or hereafter in
effect), or (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts;
(c) a proceeding or case shall be commenced, without application or
consent of Maker, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of the debts of Maker, (ii) the appointment of a trustee, receiver,
custodian or liquidator of all or substantially all of the assets of Maker, or
(iii) similar relief in respect of Maker under any applicable law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or adjustment
of debts, and, in any such case, such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more business days; or an order for relief against Maker shall be entered
in an
B-3
involuntary case under the U.S. Federal Bankruptcy Code (as now or hereafter in
effect);
(d) Maker shall challenge, or institute any proceedings to challenge,
the validity, binding effect or enforceability of this Note or any other
obligation to Payee;
(e) Payee shall not have or cease to have a first priority security
interest in the Shares;
(f) failure by Maker to perform or observe any other term, covenant
or agreement on its part to be performed or observed pursuant to this Note, the
Pledge Agreement, the Subscription Agreement or the Stock Repurchase Agreement,
and such failure is not cured within 10 days; or
(g) any representation or warranty made by Maker to Payee herein
shall prove to be false in any material respect when made.
7. REMEDIES. Upon the occurrence of any Event of Default specified
--------
in Section 6 above, the Principal Amount of this Note together with accrued
interest thereon shall become immediately due and payable without notice of
default, presentment or demand for payment, protest or other notices or demands
of any kind (all of which are hereby expressly waived by Maker). Maker agrees
to pay all cost and expenses, including without limitation, reasonable
attorneys' fees and legal expenses, incurred by Payee in the enforcement and
collection of this Note.
8. GOVERNING LAW. This Note and the rights and obligations of the
-------------
Maker and the Payee hereunder shall be governed by, and construed and enforced
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the day and year first above written.
MAKER
By:_____________________
Name:________________
B-4
EXHIBIT C
SECOND INSTALLMENT NOTE - OPTION 1
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 1
$________________ Dated: ___________________
FOR VALUE RECEIVED, the undersigned,
___________________________________________________________, an individual
("Maker"), hereby unconditionally promises to pay to the order of KORN/FERRY
INTERNATIONAL ("Payee"), in the manner and at the place hereinafter provided,
the principal amount of $_____________ (the "Principal Amount"). Maker shall
make mandatory payments in accordance with Section 2 below and Maker may make
voluntary prepayments in accordance with Section 3 below.
Maker also promises to pay interest on the unpaid Principal Amount
hereof, which shall accrue commencing on the date hereof until paid in full, at
an adjustable rate determined for each Fiscal Year (as defined below) that is
equal to the reference rate plus .75% (i.e., 75 basis points) of Bank of America
as in effect on the last day of the preceding Fiscal Year (which reference rate
was _____%). For purposes hereof, "Fiscal Year" shall mean the twelve month
period commencing each May 1 and ending each April 30. All computations of
interest shall be made by Payee on the basis of a 365 day year, for the actual
number of days elapsed during the relevant period (including the first day but
excluding the last day).
This Note is issued pursuant to the Stock Subscription Agreement
(Basic Equity Account) (the "Subscription Agreement") and the Stock Repurchase
Agreement (the "Stock Repurchase Agreement"), each between Maker and Payee and
dated as of the date hereof, and is subject to the terms and conditions thereof.
The shares of common stock of Payee issuable to Maker pursuant to the
Subscription Agreement are referred to herein as the "Shares".
1. PAYMENTS. All payments of principal and interest in respect of
--------
this Note shall be made in lawful money of the United States of America in same
day funds at the executive offices of Payee located at 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as shall be
designated in a written notice delivered to Maker. Whenever any payment on this
Note shall be stated to be due on a day that is not a business day, such payment
shall instead be made on the next succeeding business day, and such extension of
time shall be included in the computation of interest payable on this Note.
Each payment hereunder shall be credited first to interest then due and the
remainder of such payment shall be credited to principal.
C-1
2. MANDATORY PAYMENTS. Maker hereby agrees to make mandatory
------------------
payments of principal and interest on this Note based on Maker's compensation
from Payee for each Fiscal Year during the term of this Note. Such mandatory
payments may vary from Fiscal Year to Fiscal Year depending on the level of
Maker's base compensation and bonus compensation in any particular Fiscal Year,
as follows:
(a) Maker shall make semi-monthly payments on this Note commencing on
the 15th of the first full month following the date hereof in an amount equal to
(x) the Base Formula Amount (as defined below) for the Fiscal Year in which such
payment is made, divided by (y) 24. The Base Formula Amount for each Fiscal
Year shall equal:
(i) Six percent (6%) of the first One Hundred Thousand Dollars
($100,000) of Maker's base compensation from Payee payable with respect to such
Fiscal Year; plus
(ii) Ten percent (10%) of the next Fifty Thousand Dollars
($50,000) of Maker's base compensation from Payee payable with respect to such
that Fiscal Year; plus
(iii) Fifteen percent (15%) of the next One Hundred Thousand
Dollars ($100,000) of Maker's base compensation from Payee with respect to such
Fiscal Year; plus
(iv) Twenty-five percent (25%) of Makers' base compensation from
Payee in excess of Two Hundred Fifty Thousand Dollars ($250,000) with respect to
such Fiscal Year.
For example, if Maker's base salary from Payee for the Fiscal
Year commencing May 1, 1996 were $160,000, Maker would make 24 semi-monthly
payments of $520.83 to Payee (i.e., 6% of $100,000 = $6,000; 10% of $50,000 =
$5,000; and 15% of $10,000 = $1,500. $6,000 + $5,000 + $1,500 = $12,500. $12,500
/ 24 = $520.83).
(b) In addition, Maker shall make mandatory payments on this Note
each December 31 and April 30 (or on such other dates as the Company may adopt
for payment of bonus advances and/or bonus payments) from each bonus advance and
bonus payment, if any, from Payee in an amount equal to the Bonus Formula
Amount. The Bonus Formula Amount for each Fiscal Year shall equal the amount
determined pursuant to the following formula minus all prior payments made in
such Fiscal Year with respect to base compensation pursuant to subsection 2(a)
and bonus compensation pursuant to this subsection 2(b):
C-2
(i) Six percent (6%) of the first One Hundred Thousand Dollars
$100,000) of Maker's total compensation (i.e., base compensation plus bonus)
from Payee with respect to such Fiscal Year; plus
(ii) Ten percent (10%) of the next Fifty Thousand Dollars
($50,000) of Maker's total compensation (i.e., base compensation plus bonus)
from Payee with respect to such Fiscal Year; plus
(iii) Fifteen percent (15%) of the next One Hundred Thousand
Dollars ($100,000) of Maker's total compensation (i.e., base compensation plus
bonus) from Payee with respect to such Fiscal Year; plus
(iv) Twenty-five percent (25%) of Maker's total compensation
(i.e., base compensation plus bonus) from Payee in excess of Two Hundred Fifty
Thousand Dollars ($250,000) with respect to such Fiscal Year.
For example, if Maker's base salary from Payee for the Fiscal
Year commencing May 1, 1996 were $160,000, and Maker's annual bonus from Payee
for such Fiscal Year were $50,000, Maker would make a payment on the date such
bonus payment is made of $7,500 to Payee. (i.e., Maker's total compensation for
Fiscal Year 1997 would equal $210,000. 6% of $100,000 = $6,000; 10% of $50,000 =
$5,000; and 15% of $60,000 = $9,000. $6,000 + $5,000 + $9,000 = $20,000. $20,000
- $12,500 (the amount that would have been paid pursuant to Section 2(a) =
$7,500.)
(c) Maker may authorize Payee to deduct from each semi-monthly
payment of salary and from each bonus advance and bonus payment, if any, the
amounts due under subparagraphs 2(a) and 2(b) above by delivering to Payee an
executed Authorization for Payroll Deduction for Loan pursuant to the terms of
the Subscription Agreement.
(d) Notwithstanding the foregoing, the Principal Amount, together
with accrued interest thereon, shall become due and payable in full immediately
upon the termination of Maker's employment with Payee or its affiliates or
Maker's death; provided, however, that if upon such termination of employment or
death Payee is prohibited from purchasing the Shares by applicable law or any
contract or agreement binding on Payee, this Note shall continue in full force
and effect until such time as Payee notifies Maker in writing that it is legally
and contractually permitted to purchase the Shares, at which time the Principal
Amount, together with accrued interest thereon, shall become immediately due and
payable.
3. VOLUNTARY PREPAYMENTS. Maker shall have the right at any time
---------------------
and from time to time to prepay the principal and interest of this Note in whole
or in part, without premium or penalty; provided that each such prepayment shall
be in a
C-3
minimum amount of One Thousand Dollars ($1,000) and integral multiples of that
amount, or the amount of principal and interest then outstanding, whichever is
less. All prepayments will be applied to payments in reverse order of maturity.
4. PLEDGE OF SECURITY. Maker has entered into a Pledge Agreement
------------------
with Payee dated as of the date hereof (the "Pledge Agreement"), pursuant to
which Maker pledges the Shares as security for this Note. All certificates or
other instruments representing or evidencing such Shares shall be delivered to
and held by Payee pursuant to the terms of the Stock Repurchase Agreement and
the Pledge Agreement.
5. REPRESENTATIONS AND WARRANTIES. Maker hereby represents and
------------------------------
warrants to Payee that:
(a) This Note constitutes the legally valid and binding obligation of
Maker enforceable against Maker in accordance with its terms.
(b) Maker is the legal and beneficial owner of the Shares free and
clear of any lien, security interest, preferential arrangement or other charge
or encumbrance except for the security interest created by the Pledge Agreement.
(c) The pledge of the Shares pursuant to the Pledge Agreement creates
a valid first priority security interest in the Shares, securing the payment of
the obligations under this Note.
6. EVENTS OF DEFAULT. The occurrence of any of the following events
-----------------
shall constitute an "Event of Default":
(a) failure of Maker to pay any principal or interest under this Note
when due, whether by acceleration (including, without limitation, acceleration
pursuant to Section 2(d) hereof), by mandatory payment or otherwise, and such
failure is not cured within 10 days;
(b) Maker shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or substantially all of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case of
bankruptcy under the U.S. Federal Bankruptcy Code (as now or hereafter in
effect), or (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts;
(c) a proceeding or case shall be commenced, without application or
consent of Maker, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of the
C-4
debts of Maker, (ii) the appointment of a trustee, receiver, custodian or
liquidator of all or substantially all of the assets of Maker, or (iii) similar
relief in respect of Maker under any applicable law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
and, in any such case, such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more business
days; or an order for relief against Maker shall be entered in an involuntary
case under the U.S. Federal Bankruptcy Code (as now or hereafter in effect);
(d) Maker shall challenge, or institute any proceedings to challenge,
the validity, binding effect or enforceability of this Note or any other
obligation to Payee;
(e) Payee shall not have or cease to have a first priority security
interest in the Shares;
(f) failure by Maker to perform or observe any other term, covenant
or agreement on its part to be performed or observed pursuant to this Note, the
Pledge Agreement, the Stock Repurchase Agreement or the Subscription Agreement,
and such failure is not cured within 10 days; or
(g) any representation or warranty made by Maker to Payee herein
shall prove to be false in any material respect when made.
7. REMEDIES. Upon the occurrence of any Event of Default specified
--------
in Section 6 above, the Principal Amount of this Note together with accrued
interest thereon shall become immediately due and payable without notice of
default, presentment or demand for payment, protest or other notices or demands
of any kind (all of which are hereby expressly waived by Maker). Maker agrees
to pay all costs and expenses, including without limitation, reasonable
attorneys' fees and legal expenses, incurred by Payee in the enforcement and
collection of this Note.
C-5
8. GOVERNING LAW. This Note and the rights and obligations of the
-------------
parties hereunder shall be governed by, and construed and enforced in accordance
with the laws of the State of California.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the day and year first above written.
MAKER
By: ______________________
Name: ________________
C-6
EXHIBIT D
SECOND INSTALLMENT NOTE - OPTION 2
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 2
$________________ Dated: ____________________
FOR VALUE RECEIVED, the undersigned,
_________________________________________________________, an individual
("Maker"), hereby unconditionally promises to pay to the order of KORN/FERRY
INTERNATIONAL ("Payee"), in the manner and at the place hereinafter provided,
the principal amount of $_____________ (the "Principal Amount"). Maker shall
make mandatory prepayments in accordance with Section 2 below and Maker may make
voluntary prepayments in accordance with Section 3 below.
Maker also promises to pay interest on the unpaid principal amount
hereof, which shall accrue commencing on the date hereof until paid in full, at
an adjustable rate determined for each Fiscal Year (as defined below) that is
equal to the reference rate plus .75% of Bank of America as in effect on the
last day of the preceding Fiscal Year (which reference rate was _____%). For
purposes hereof, "Fiscal Year" shall mean the twelve month period commencing
each May 1 and ending each April 30. All computations of interest shall be made
by Payee on the basis of a 365 day year, for the actual number of days elapsed
during the relevant period (including the first day but excluding the last day).
This Note is issued pursuant to the Stock Subscription Agreement
(Basic Equity Account) (the "Subscription Agreement") and the Stock Repurchase
Agreement (the "Stock Repurchase Agreement"), each between Maker and Payee and
dated as of the date hereof, and is subject to the terms and conditions thereof.
The shares of common stock of Payee issuable to Maker pursuant to the
Subscription Agreement are referred to herein as the "Shares".
1. PAYMENTS. All payments of principal and interest in respect of
--------
this Note shall be made in lawful money of the United States of America in same
day funds at the executive offices of Payee located at 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place as shall be
designated in a written notice delivered to Maker. Whenever any payment on this
Note shall be stated to be due on a day that is not a business day, such payment
shall instead be made on the next succeeding business day, and such extension of
time shall be included in the computation of interest payable on this Note.
Each payment hereunder shall be credited first to interest then due and the
remainder of such payment shall be credited to principal.
D-1
2. MANDATORY PAYMENTS.
------------------
(a) Maker shall make quarterly mandatory payments on this Note on
each July 31, October 31, January 31 and April 30, commencing on the first such
date to follow the date hereof, in twelve (12) installments, with each
installment consisting of a principal payment in the amount of $______________,
plus all interest accrued on the Principal Amount through the date such payment
is made.
(b) Notwithstanding the foregoing, the Principal Amount, together
with accrued interest thereon, shall become due and payable in full immediately
upon the termination of Maker's employment with Payee or its affiliates or
Maker's death; provided, however, that if upon such termination of employment or
death Payee is prohibited from purchasing the Shares by applicable law or any
contract or agreement binding on Payee, this Note shall continue in full force
and effect until such time as Payee notifies Maker in writing that it is legally
and contractually permitted to purchase the Shares, at which time the principal
amount of this Note, together with accrued interest thereon, shall become
immediately due and payable.
3. VOLUNTARY PREPAYMENTS. Maker shall have the right at any time
---------------------
and from time to time to prepay the principal and interest of this Note in whole
or in part, without premium or penalty; provided that each such prepayment shall
be in a minimum amount of One Thousand Dollars ($1,000) and integral multiples
of that amount, or the amount of principal and interest then outstanding,
whichever is less. All prepayments will be applied to payments in reverse order
of maturity.
4. PLEDGE OF SECURITY. Maker has entered into a Pledge Agreement
------------------
with Payee dated as of the date hereof (the "Pledge Agreement") pursuant to
which Maker pledges the Shares as security for this Note. All certificates or
other instruments representing or evidencing such Shares shall be delivered to
and held by Payee pursuant to the terms of the Stock Repurchase Agreement and
the Pledge Agreement.
5. REPRESENTATIONS AND WARRANTIES. Maker hereby represents and
------------------------------
warrants to Payee that:
(a) This Note constitutes the legally valid and binding obligation of
Maker enforceable against Maker in accordance with its terms.
(b) Maker is the legal and beneficial owner of the Shares free and
clear of any lien, security interest, preferential arrangement or other charge
or encumbrance except for the security interest created by the Pledge Agreement.
D-2
(c) The pledge of the Shares pursuant to the Pledge Agreement creates
a valid first priority security interest in the Shares, securing the payment of
the obligations under this Note.
6. EVENTS OF DEFAULT. The occurrence of any of the following events
-----------------
shall constitute an "Event of Default":
(a) failure of Maker to pay any principal or interest under this Note
when due, whether by acceleration (including, without limitation, acceleration
pursuant to Section 2(b) hereof), by mandatory payment or otherwise, and such
failure is not cured within 10 days;
(b) Maker shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or substantially all of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case of
bankruptcy under the U.S. Federal Bankruptcy Code (as now or hereafter in
effect), or (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts;
(c) a proceeding or case shall be commenced, without application or
consent of Maker, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of the debts of Maker, (ii) the appointment of a trustee, receiver,
custodian or liquidator of all or substantially all of the assets of Maker, or
(iii) similar relief in respect of Maker under any applicable law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or adjustment
of debts, and, in any such case, such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more business days; or an order for relief against Maker shall be entered
in an involuntary case under the U.S. Federal Bankruptcy Code (as now or
hereafter in effect);
(d) Maker shall challenge, or institute any proceedings to challenge,
the validity, binding effect or enforceability of this Note or any other
obligation to Payee;
(e) Payee shall not have or cease to have a first priority security
interest in the Shares;
(f) failure by Maker to perform or observe any other term, covenant
or agreement on its part to be performed or observed pursuant to this Note, the
Pledge
D-3
Agreement, the Subscription Agreement or the Stock Repurchase Agreement, and
such failure is not cured within 10 days; or
(g) any representation or warranty made by Maker to Payee herein
shall prove to be false in any material respect when made.
7. REMEDIES. Upon the occurrence of any Event of Default specified
--------
in Section 6 above, the Principal Amount of this Note together with accrued
interest thereon shall become immediately due and payable without notice of
default, presentment or demand for payment, protest or other notices or demands
of any kind (all of which are hereby expressly waived by Maker). Maker agrees
to pay all cost and expenses, including without limitation, reasonable
attorneys' fees and legal expenses, incurred by Payee in the enforcement and
collection of this Note.
8. GOVERNING LAW. This Note and the rights and obligations of the
-------------
Maker and the Payee hereunder shall be governed by, and construed and enforced
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the day and year first above written.
MAKER
By: ______________________
Name: _______________
D-4
EXHIBIT E
AUTHORIZATION FOR PAYROLL DEDUCTION FOR LOAN
AUTHORIZATION FOR PAYROLL DEDUCTION FOR LOAN
I, _____________________, hereby agree and acknowledge that as a
result of [a] loan(s) to me by Korn/Ferry International (the "Company"), which
is my employer or the parent or affiliate corporation of my employer, pursuant
to that certain Stock Subscription Agreement dated as of ___________________
(the "Subscription Agreement"), I owe the Company the aggregate sum of
$__________________, $_________________ of which is evidenced by the First
Installment Note dated as of ____________________, $_________________ of which
is evidenced by the Second Installment Note - Option 1 dated as of
__________________, $______________ of which is evidenced by the Amendment to
First Installment Note, and $______________ of which is evidenced by the
Amendment to Second Installment Note - Option 1 delivered to the Company
pursuant to the terms of the Subscription Agreement, copies of which are
attached hereto and incorporated herein by this reference (the "Note(s)"). I
wish to repay this sum to the Company in the form of semi-monthly payroll
deductions and deductions from annual bonus advances and bonus payments, if any.
Therefore, in accordance with California Labor Code Section 224 and other
applicable laws, I hereby authorize my employer to deduct from each of my
payroll checks and bonus advance and bonus payment checks, if any, the payments
due under and in accordance with the terms of the Note(s). Such deductions are
authorized over and above any other deductions I may have already authorized
(e.g., insurance premiums, hospital or medical dues). If I should for any
reason cease employment with my employer, any unpaid balance of the Note(s) may
be deducted from my final payroll check, or from any other check for
compensation I may receive from my employer (e.g., for unused vacation).
EXECUTED ON: ________________, 19___
By: _____________________
Name: _____________________
X - 0
XXXXXXX X
XXXXX XXXXXXXXXX AGREEMENT
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (the "Agreement") is entered into as
of ______________________ by and between Korn/Ferry International, a California
corporation (the "Company"), and __________________________________________, an
individual (the "Shareholder").
R E C I T A L S
A. The Company is a corporation duly organized and existing under
the laws of the State of California.
B. In 1991, the Company adopted the Executive Participation Program
(the "Equity Plan"), which provides for the sale of shares of Company common
stock to certain officers of the Company.
C. The Shareholder desires to participate in the Equity Plan and to
purchase the amount of shares of Company Common Stock set forth in the Executive
Participation Program Stock Subscription Agreement (Basic Equity Account)
between Company and Shareholder dated as of ________________________ (the
"Subscription Agreement"), which requires that Shareholder enter into this
Agreement with the Company.
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual promises set forth below, the parties hereto agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, the following
-----------
definitions apply:
"Book Value" means the book value of a Share, as determined in
accordance with generally accepted accounting principals applied in accordance
with the usual accounting practices of the Company.
"Fiscal Year" means the fiscal year of the Company, which begins
each May 1 and ends each April 30.
"Shares" means the shares of Company Common Stock currently held
or acquired by Shareholder in the future.
"Value" means, for purposes of determining the price at which a
Share will be sold or purchased pursuant to this Agreement, (a) the Book Value
of such Share as of the end of the Fiscal Year immediately preceding such sale
or purchase, or (b) such other value or formula for determining value as may be
specified from time to
F - 1
time after the date hereof in a resolution adopted by such percentage of the
shareholders of the Company as are then required pursuant to the Company's
Articles of Incorporation as the value or formula for determining Value to be
used in connection with any sales and purchases of Shares by the Company,
including, without limitation, sales and purchases pursuant to the Equity Plan.
2. COMPLIANCE WITH AGREEMENT. Except as expressly set forth herein,
-------------------------
the Shareholder shall not sell, transfer, hypothecate, pledge or otherwise
dispose of the Shares or any interest therein held by Shareholder (a "Transfer")
without the prior written consent of the Company. Any purported Transfer not in
compliance with the terms and conditions of this Agreement shall be void and of
no force and effect. If the Shares are Transferred, in whole or part,
voluntarily or involuntarily, by operation of law or otherwise, by reason of
insolvency or bankruptcy of the Shareholder, or otherwise in violation of the
provisions of this Agreement, the recipient of any of the Shares shall not be
registered on the books of the Company and shall not be recognized as the holder
of the Shares by the Company and shall not acquire any voting, dividend or other
rights in respect thereof.
3. INVESTMENT INTENT. The Shareholder hereby represents and
-----------------
warrants to the Company that the Shareholder's purchase of the Shares has been
made for his or her own account, for investment purposes only and not with a
view to distribution or resale of the Shares. The Shares have not been, and
will not be, registered under the Securities Act of 1933, as amended, or the
securities laws of any state. The Shareholder may not sell the Shares unless
they have been so registered or unless, in the opinion of counsel satisfactory
to the Company, such registration is not required.
4. RESTRICTION ON CERTIFICATES. The Shareholder understands and
---------------------------
agrees that the certificate(s) issued to him or her representing the Shares:
(i) Shall contain the following legend:
"TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY REQUIRE
REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND THIS
CERTIFICATE MAY NOT BE TRANSFERRED WITHOUT EVIDENCE OF SUCH REGISTRATION OR
OF AN EXEMPTION FROM THE REGISTRATION REQUIREMENT OF THE ACT. THE RIGHT TO
SELL, TRANSFER OR OTHERWISE DISPOSE OF OR PLEDGE THE SHARES REPRESENTED BY
THIS CERTIFICATE IS PROHIBITED BY THE TERMS OF A STOCK REPURCHASE
AGREEMENT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE COMPANY'S PRINCIPAL
PLACE OF BUSINESS."
F - 2
(ii) May contain additional legends as required by state
securities laws.
(iii) Shall contain the following legend, if the Shareholder is
not a U.S. Person, as defined in the Act and Regulation S promulgated
thereunder/
"THE TRANSFER OF THESE SECURITIES IS PROHIBITED EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED."
5. POSSESSION OF CERTIFICATES. The Company shall hold the
--------------------------
certificates evidencing the Shares as custodian to protect its interests
hereunder. In furtherance thereof, Shareholder shall execute and deliver to the
Company an assignment in blank in the form of Exhibit A hereto, for the transfer
of such certificates. The Company will deliver to Shareholder a receipt for
such Shares in the form of Exhibit B hereto.
6. REPURCHASE OF SHARES BY COMPANY. Upon the termination of
-------------------------------
Shareholder's employment with the Company (for any reason whatsoever), and
subject to any prohibitions on the purchase of Shares by the Company under
applicable law or any agreement binding on the Company, the Shareholder shall
sell and the Company shall purchase the Shares at a price per share equal to the
Value of a share of Company Common Stock as of the date on which such Shares are
to be purchased by the Company. Company and Shareholder agree that Company
shall purchase the Shares on a date specified by Company, which shall not be
later than 90 days after termination of Shareholder's employment with the
Company. Notwithstanding the foregoing, if the Company is prohibited from
purchasing the Shares by applicable law or by any contract or agreement binding
on the Company, including without limitation any loan agreement, the Company
will purchase the Shares as soon as practicable after it determines in good
faith that it is legally and contractually permitted to do so. If Shareholder
paid for all or any part of the Shares with a promissory note or notes payable
to the Company, the Company will, and Shareholder hereby authorizes the Company
to, offset against any amounts owing to Shareholder by the Company with respect
to Shares purchased hereunder any amounts outstanding for principal or accrued
interest under such promissory note(s). Any amount so offset shall be deducted
from the purchase price to be paid under this section upon the purchase of the
Shares by the Company. The balance of the purchase price for the Shares, if
any, shall be paid by the Company, in its sole and absolute discretion, either
in cash or by delivery of a non-transferable promissory note in the form of
Exhibit C hereto (the "Note"); provided, however, that if termination of
employment is due to Executive's death, the balance of the purchase price shall
be paid in cash. The Note shall bear simple interest at Bank of America's
reference rate as of the date hereof and may be for term of up to five years.
The Note shall be paid in equal annual installments of principal plus all
accrued and unpaid interest on the total principal amount. Subject to the
preceding sentence, the
F - 3
actual term of the Note will be determined in the sole and absolute discretion
of the Company. The indebtedness evidenced by the Note, both principal and
interest, shall be subordinated and junior, to the extent set forth in the next
sentence, to all indebtedness of the Company, both principal and interest
(accrued and accruing thereon both before and after the date of filing a
petition in any bankruptcy, insolvency, reorganization or receivership
proceedings, whether or not allowed as a claim in such case or proceeding) in
respect of borrowed money, whether outstanding on the date of the Note or
thereafter created, incurred or assumed (collectively, the "Senior Debt");
provided, that such Senior Debt shall not include any obligation of the Company
under the Equity Plan to repurchase shares of its common stock. Upon the
maturity of any of the Senior Debt by lapse of time, acceleration or otherwise,
all principal of, and interest on, all such matured Senior Debt shall first be
paid in full before any payment is made by the Company on account of principal
of, or interest on, the Note.
7. ASSIGNMENT OF PURCHASE RIGHTS. The Company may assign, in whole
-----------------------------
or part, its right to purchase the Shares under this Agreement to a designee(s).
8. PRESENTLY OWNED AND AFTER-ACQUIRED SHARES. The Shareholder
-----------------------------------------
agrees that the terms and conditions of this Agreement shall be binding upon him
or her as to any shares of Common Stock of the Company which Shareholder owns as
of the date hereof or which may hereafter be acquired by the Shareholder,
without further action.
9. CHANGE IN MARITAL STATUS. In the event that the Shareholder's
------------------------
marital status is altered by dissolution or divorce or by the death of the
Shareholder's spouse, any interest of his or her former spouse, whether as
community property or as a result of a property settlement agreement, a divorce
decree or other legal proceeding, may be purchased by the Company and shall be
sold by the Shareholder's former spouse or his or her estate according to the
provisions of this Agreement. The Shareholder agrees to notify the Company of
any change in marital status, including, without limitation, marriage,
dissolution of marriage, divorce or death of spouse, within 10 business days of
said event. The Shareholder agrees to cause any spouse who has not signed a
consent to this Agreement in the form of Exhibit D to do so at the time notice
is given to the Company under this Section.
10. AMENDMENT. No change, amendment or modification of this
---------
Agreement shall be valid unless it is in writing and signed by the Company and
the Shareholder.
11. REMEDIES. The Shares cannot be readily purchased or sold in the
--------
open market and, for that reason, among others, the parties will be irreparably
damaged in the event the agreements contained herein are not specifically
enforced. If any dispute arises concerning the transfer of any Shares, an
injunction may be issued
F - 4
restraining any such transfer pending the determination of such controversy. In
the event of any controversy, such rights or obligations shall be enforceable in
a court by a decree of specific performance. Such remedy shall, however, be
cumulative and not exclusive, and shall be in addition to any other remedy which
the parties may have. The provisions of this Agreement are for the benefit of
the Company and the Shareholder and may be enforced by either of them.
12. EXPENSES. Shareholder agrees to pay to the Company the amount of
--------
any and all reasonable expenses, including, without limitation, reasonable
attorneys' fees and expenses, which the Company may incur in connection with the
enforcement of its rights hereunder.
13. NOTICES. Any notice required or permitted to be given hereunder
-------
shall be in writing and shall be mailed first-class, postage prepaid, or shall
be personally delivered. Any communication so addressed and mailed shall be
deemed to be given seven days after mailing and any communication delivered in
person shall be deemed to be given when receipted for, or actually received by,
an authorized officer of the recipient. All such communications, if intended
for the Company, shall be addressed to the Company as follows:
Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Corporate Office
Vice President - Administration
and if intended for the Shareholder shall be addressed to the Shareholder at his
or her address as shown on the Company's books. Any party may change his, her
or its address for notice by giving notice thereof to the other party to this
Agreement. A change of address notice by the Shareholder shall be recorded in
the books of the Company as the Shareholder's address for notice unless the
Shareholder otherwise instructs the Company.
14. GOVERNING LAW. All questions with respect to the construction of
-------------
this Agreement and the rights and liabilities of the parties hereto shall be
governed by the laws of California.
15. SUCCESSORS AND ASSIGNS. Subject to the terms herein, this
----------------------
Agreement shall inure to the benefit of, and shall be binding upon, the assigns,
successors in interest, personal representatives, estates, heirs and legatees of
each of the parties hereto.
F - 5
16. ENTIRE AGREEMENT. This Agreement contains the entire Agreement
----------------
of the parties hereto and supersedes any prior written or oral agreements
between them concerning the subject matter contained herein. There are no
representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject matter contained in
this Agreement which are not fully set forth herein.
17. COUNTERPARTS. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. WAIVER. No waiver of any right pursuant hereto or waiver of any
------
breach hereof shall be effective unless in writing and signed by the party
waiving such right or breach. No waiver of any right or waiver of any breach
shall constitute a waiver of any other or similar right or breach, and no
failure to enforce any right hereunder shall preclude or affect the later
enforcement of such right.
19. CAPTIONS. The captions of the various sections herein are solely
--------
for the convenience of the parties hereto and shall not affect or control the
meaning or construction of this Agreement.
20. SEVERABILITY. Should any portion of this Agreement be declared
------------
invalid and unenforceable, then such portion shall be deemed to be severable
from this Agreement and shall not affect the remainder hereof.
21. AGREEMENT AVAILABLE FOR INSPECTION. An original copy of this
----------------------------------
Agreement, together with all amendments, duly executed by the Company and the
Shareholder, shall be delivered to the Secretary of the Company and maintained
by him or her at the principal executive office of the Company and shall be
available for inspection by any person requesting to see it.
F - 6
22. ADDITIONAL DOCUMENTS. The parties hereto agree to sign all
--------------------
necessary documents and take all other actions necessary to carry out the
provisions of this Agreement.
IN WITNESS, WHEREOF, the parties have executed this Shareholder's
Agreement as of the date first written above.
SHAREHOLDER
By: _____________________________
Name: _______________________
KORN/FERRY INTERNATIONAL
By: _____________________________
Name: Xxxxxx X. Xxxxx
-----------------------
Title: VP Finance & CFO
----------------------
F - 7
EXHIBIT A
IRREVOCABLE STOCK ASSIGNMENT
For good and valuable consideration pursuant to Section 6 of that
certain Stock Repurchase Agreement between the undersigned and Korn/Ferry
International, the undersigned hereby sells, assigns and transfers to
________________________________ ______ shares of common stock of Korn/Ferry
International, represented by Certificate No(s). ________________ standing in
the name of the undersigned on the books of said company.
By: _______________________
Name: _______________________
Dated: _______________, 19__
WITNESS:
By: _______________________
Name: ______________________
Dated: _______________, 19__
FA-1
EXHIBIT B
RECEIPT
Korn/Ferry International, a California corporation (the "Company"),
hereby acknowledges that it has received and is holding as custodian on behalf
of ___________________________________________________________, an officer of
the Company ("Executive"), ___________ shares of Company Common Stock (the
"Shares"), represented by certificate(s) number __________, __________ and
__________ issued on ____________________, 19___ in the name of Executive
(copies of which are attached hereto), together with an Irrevocable Stock
Assignment executed by Executive (the "Stock Assignment"). The Shares and the
Stock Assignment are being held by the Company pursuant to and in accordance
with the terms of that certain Stock Repurchase Agreement between the Company
and Executive, and any promissory note(s) and related Stock Pledge Agreement
delivered by Executive to the Company in connection with the purchase of all or
a portion of the Shares.
KORN/FERRY INTERNATIONAL
By: _____________________________
Name: _______________________
Title: ______________________
Dated: ______________, 19__
FB-1
EXHIBIT C
KORN/FERRY INTERNATIONAL
NON-TRANSFERABLE SUBORDINATED PROMISSORY NOTE
$_______________ ____________, 19__
FOR VALUE RECEIVED, the undersigned, KORN/FERRY INTERNATIONAL, a
California corporation (the "Company") hereby promises to pay to the order of
_____________________ ____________________ ("Payee") the principal sum of
____________________________________________________________ dollars
($________________), plus interest on the unpaid balance thereof at the rate of
______% per annum [reference rate of Bank of America on the date hereof].
Payments of principal and interest hereunder shall be in lawful money of
the United States of America and shall be payable in ______________ (___) annual
payments, the first such payment to be made on ____________, 19__, and the final
such payment to be made on ____________, 19__. Interest shall be simple
interest and shall be paid on the basis of a 360-day year and a 30-day month.
Principal and interest on this note are payable, at __________________
___________________________________________________________, or such other place
as Payee shall designate in writing for such purpose at least five business days
in advance of the applicable payment date. Principal and interest on this note
may be prepaid at any time, in whole or in part, without premium or penalty. The
timely tender of any payment of principal or interest on this note shall be
deemed to have been made if a check for such payment is mailed two business days
before the day such payment is due.
If any payment of principal or interest on this note shall be due on a
Saturday, Sunday or legal holiday under the laws of the State of California, or
any other day on which banking institutions in the City of Los Angeles are
obligated or authorized by law or executive order to close, such payment shall
be made on the next succeeding business day in California, and any such extended
time shall not be included in computing interest in connection with such
payment.
The indebtedness evidenced by this note, both principal and interest,
is subordinated and junior to the extent set forth in Section 6 of that certain
Stock Repurchase Agreement dated as of __________________ between the Company
and Payee.
FC-1
Payee shall not sell, assign or otherwise transfer or dispose of all
or any part of this note to any person, partnership, corporation, firm or other
entity, except with the prior written consent of the Company.
This note is made and delivered in California and shall be governed,
construed and enforced according to the laws of the State of California.
KORN/FERRY INTERNATIONAL
By: ________________________
Name: __________________
Title: _________________
FC-2
EXHIBIT D
CONSENT OF SPOUSE OF SHAREHOLDER
The undersigned, being the spouse of the Shareholder, _______________,
who has signed the foregoing Agreement, hereby acknowledges that he or she has
read and is familiar with the provisions of said Agreement including but not
limited to Section 9 herein and agrees to be bound thereby and join therein to
the extent, if any, that his or her agreement and joinder may be necessary. The
undersigned hereby agrees that the Shareholder may join in any future amendment
or modifications of the Agreement without any further signature, acknowledgment,
agreement or consent on his or her part; and the undersigned hereby further
agrees that any interest which he or she may have in the shares of common stock
of the Company held by Shareholder shall be subject to the provisions of this
Agreement.
By: _________________________
Name: _________________________
Dated: ________________________
FD-1
EXHIBIT G
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is entered into as of
______________________ by and between Korn/Ferry International, a California
corporation (the "Company"), and __________________________________________, an
officer of the Company ("Executive").
R E C I T A L S
A. In 1991, the Company adopted the Executive Participation Program (the
"Equity Plan"), which provides for the sale of shares of Company common stock to
certain officers of the Company.
B. Executive has agreed to participate in the Equity Plan and to purchase
from the Company shares of Common Stock (the "Shares") of the Company, in the
amount and pursuant to the terms of the Executive Participation Program Stock
Subscription Agreement (Basic Equity Account), dated as of __________________
(the "Subscription Agreement").
C. The Shares are also subject to the terms of that certain Stock
Repurchase Agreement dated as of _______________________ between Company and
Executive delivered pursuant to the Subscription Agreement (the "Stock
Repurchase Agreement").
D. Executive has agreed to pledge all of the Shares being acquired by
Executive to secure payment of the promissory note(s) made as of the date hereof
or at any future date by Executive in favor of the Company pursuant to Section 3
of the Subscription Agreement (the "Promissory Note(s)").
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual promises set forth below, the parties hereto agree as follows:
1. CREATION OF SECURITY INTEREST. As security for the prompt
-----------------------------
payment and performance in full when due, whether on the respective maturity
dates, by acceleration or otherwise (including payments of amounts that would
become due by operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, or any successor provision thereto), of the Promissory Note(s),
Executive hereby assigns, transfers to and pledges for the purpose of creating a
security interest for the benefit of Company, all of the Shares and the
certificates representing the Shares and any interest of Executive in the
entries on the Company's books pertaining to the Shares, and all dividends,
cash, warrants, rights, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any and all of the Shares (the "Collateral"). The Company shall retain
possession of any and all of the stock certificates representing the Shares
pursuant to the terms of this
G-1
Agreement and the Stock Repurchase Agreement, which also provides for the
delivery of executed stock powers, but shall not encumber or dispose of the
Collateral except in accordance with the provisions of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive
-------------------------------------------
represents and warrants as follows:
(a) Executive has good title to the Shares as the legal and
beneficial owner thereof.
(b) There are no restrictions upon the transfer of the Shares
other than pursuant to the Subscription Agreements, the Stock Repurchase
Agreement and applicable securities laws.
(c) Except for the security interest granted in this Pledge
Agreement, there is no adverse lien, security interest or encumbrance in or on
said Shares.
3. DIVIDENDS. During the term of this Pledge Agreement, any
---------
dividends declared on the Collateral shall be paid to the Executive provided
that there has not been an Event of Default (as defined in Paragraph 6 hereof).
Upon occurrence of any Event of Default, all such amounts shall thereafter be
paid to Company.
4. VOTING RIGHTS. During the term of this Pledge Agreement and so
-------------
long as there has not been an Event of Default (as defined in Paragraph 6
hereof), Executive shall have the right to vote the Collateral. Upon occurrence
of any Event of Default, such rights shall immediately be transferred to
Company.
5. STOCK ADJUSTMENT. In the event that during the term of this
----------------
Pledge Agreement any stock dividend, reclassification, readjustment or other
change is declared or made in the capital structure of the Company, all new,
substituted and additional shares or other securities issued by reason of any
such changes in the Collateral shall be held by the Company under the terms of
this Pledge Agreement in the same manner as the Shares originally transferred
hereunder.
6. EVENTS GIVING RISE TO DEFAULT. The occurrence of any of the
-----------------------------
following events shall constitute an "Event of Default":
(a) Failure of Executive to keep or perform any of the terms or
provisions of this Pledge Agreement.
(b) The occurrence of an Event of Default as defined in any
Promissory Note.
G-2
7. REMEDIES ON EVENT OF DEFAULT. Upon the occurrence of an Event of
----------------------------
Default as specified in Paragraph 6 hereof, Company may then elect to sell all
or any part of the Collateral or may elect to exercise any other rights or
pursue any other lawful remedies pursuant to applicable provisions of the
California Commercial Code. The Company may buy all or any part of the
Collateral at any such sale. The proceeds of any such sale shall be applied, in
order, to the following:
(a) The reasonable expenses of retaking, holding, preparing for
sale, selling, and the like, including, without limitation, reasonable
attorneys' fees and legal expenses incurred by the Company;
(b) The unpaid balance of principal and interest due under the
Promissory Note(s).
The surplus, if any, shall be paid to the person or persons
entitled thereto. If there be a deficiency, Executive shall be personally liable
to the Company for any such deficiency.
Upon the occurrence of an Event of Default, the Company may
propose to accept the Collateral, which acceptance shall discharge any then
undischarged obligation of Executive hereunder, all as in accordance with
applicable provisions of the California Commercial Code.
8. PAYMENT OF INDEBTEDNESS. Upon the fulfillment of all obligations
-----------------------
of Executive for payment in full of the Promissory Note(s), the Company shall
continue to hold all of the certificates representing the Shares and the related
Stock powers pursuant to the terms of the Stock Repurchase Agreement.
9. CONTINUING AGREEMENT. Until all indebtedness pursuant to the
--------------------
Promissory Note(s) shall have been paid in full, all rights, powers and remedies
granted to the Company hereunder shall continue to exist and may be exercised by
the Company at any time.
10. RIGHTS OF COMPANY. The rights, powers and remedies given to the
-----------------
Company by virtue of this Agreement shall be in addition to all rights, powers
and remedies given to the Company by virtue of any statute or rule of law. Any
forbearance, failure or delay by the Company in exercising any right, power or
remedy hereunder shall not be deemed to be a waiver of such right, power or
remedy, and any single or partial exercise of any right, power or remedy
hereunder shall not preclude the further exercise thereof; and every right,
power and remedy of the Company shall continue in full force and effect until
such right, power or remedy is specifically waived by an instrument in writing
executed by the Company.
G-3
11. EXPENSES. Executive agrees to pay all costs and expenses,
--------
including, without limitation, reasonable attorneys' fees and legal expenses,
incurred in the enforcement of this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California.
13. BENEFIT. This Agreement shall inure to the benefit of and be
-------
binding upon the parties hereto, their successors, assigns, administrators and
executors.
14. NOTICES. Any notice required or permitted to be given hereunder
-------
shall be in writing and shall be mailed first class, postage prepaid, or shall
be personally delivered. Any communication so addressed and mailed shall be
deemed to be given seven days after mailing and any communication delivered in
person shall be deemed to be given when receipted for, or actually received by,
the recipient. All such communications shall be addressed as follows:
If to the Company:
Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Corporate Office
Vice President - Administration
If to the Executive:
At Executives address as shown in the Company's books
or to such other address as is provided by the parties hereto
from time to time.
G-4
15. COUNTERPARTS. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE
By: ___________________________
Name: __________________________
COMPANY:
KORN/FERRY INTERNATIONAL
By: ___________________________
Name: Xxxxxx X. Xxxxx
---------------------------
Title: VP Finance & CFO
--------------------------
G-5
EXHIBIT H
AMENDMENT TO
SECURED PROMISSORY NOTE
FIRST INSTALLMENT NOTE
AMENDMENT TO
SECURED PROMISSORY NOTE
FIRST INSTALLMENT NOTE
THIS AMENDMENT (the "Amendment") is made this ___ day of ____________
19__ by ______________________________, an individual ("Maker"), to that certain
Secured Promissory Note First Installment Note (the "Note"), dated
__________________, 19__, executed by Maker in favor of KORN/FERRY INTERNATIONAL
("Payee"). All capitalized terms not otherwise defined herein shall have the
meanings given them in the Note.
Pursuant to the Stock Subscription Agreement, the Note is hereby
amended as follows:
1. The first sentence to the initial Preamble paragraph of the Note
is amended by deleting the parenthetical at the end of the sentence and
inserting the following:
"(the "Original Principal Amount") plus an additional principal
amount of $____________ (the "Additional Principal Amount" and,
collectively with the Original Principal Amount, the "Principal
Amount")."
2. Sections 2(a)(i), 2(a)(ii) and 2(a)(iii) of the Note are amended
by deleting "Principal Amount" and inserting "Original Principal Amount" in
every instance.
3. Section 2(a)(ii) of the Note is amended by deleting the word
"and" at the end of the sentence.
4. Section 2(a)(iii) of the Note is amended by deleting the period
and inserting a semi-colon plus the word "and" at the end of the sentence.
5. A new Section 2(a)(iv) is hereby inserted in its entirety as
follows:
" (iv) The Additional Principal Amount, plus all interest
accrued on the Additional Principal Amount through the date
payment is made, on the last business day of the eighteenth full
month following the date hereof."
H-1
From and after ____, interest shall accrue on the Additional Principal
Amount at the rate set forth in the Note.
Except as expressly provided above, the Note is not modified in any
respect, and the Note as herein modified is hereby ratified and confirmed in all
respects.
IN WITNESS WHEREOF, Maker has executed and delivered this Amendment as
of the day and year first written above.
MAKER
By:______________________________
Name:_________________________
Accepted and Agreed:
KORN FERRY INTERNATIONAL
By:__________________________
Name: Xxxxxx X. Xxxxx
------------------------
Title: VP Finance & CFO
-----------------------
H-2
EXHIBIT I
AMENDMENT TO
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 1
AMENDMENT TO
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 1
THIS AMENDMENT (the "Amendment") is made this ___ day of ____________
19__ by ______________________________, an individual ("Maker"), to that certain
Secured Promissory Note Second Installment Note - Option 1 (the "Note"), dated
__________________, 19__, executed by Maker in favor of KORN/FERRY INTERNATIONAL
("Payee"). All capitalized terms not otherwise defined herein shall have the
meanings given them in the Note.
Pursuant to the Stock Subscription Agreement, the Note is hereby
amended as follows:
1. The first sentence to the initial Preamble paragraph of the Note
is amended by deleting $_____________ [INSERT INITIAL PRINCIPAL AMOUNT] and
inserting $______________ [INSERT AGGREGATE PRINCIPAL AMOUNT].
From and after ____, interest shall accrue on the amended principal
amount set forth above at the rate set forth in the Note.
Except as expressly provided above, the Note is not modified in any
respect, and the Note as herein modified is hereby ratified and confirmed in all
respects.
IN WITNESS WHEREOF, Maker has executed and delivered this Amendment as
of the day and year first written above.
MAKER
By: ___________________________________
Name:______________________________
Accepted and Agreed:
KORN FERRY INTERNATIONAL
By:___________________________
Name: Xxxxxx X. Xxxxx
-------------------------
Title: VP Finance & CFO
------------------------
I-1
EXHIBIT J
AMENDMENT TO
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 2
AMENDMENT TO
SECURED PROMISSORY NOTE
SECOND INSTALLMENT NOTE - OPTION 2
THIS AMENDMENT (the "Amendment") is made this ___ day of ____________
19__ by ______________________________, an individual ("Maker"), to that certain
Secured Promissory Note Second Installment Note - Option 2 (the "Note"), dated
__________________, 19__, executed by Maker in favor of KORN/FERRY INTERNATIONAL
("Payee"). All capitalized terms not otherwise defined herein shall have the
meanings given them in the Note.
Pursuant to the Stock Subscription Agreement, the Note is hereby
amended as follows:
1. The first sentence to the initial Preamble paragraph of the Note
is amended by deleting $_____________ [INSERT ORIGINAL PRINCIPAL AMOUNT]
and inserting $______________ [INSERT AGGREGATE PRINCIPAL AMOUNT].
2. Section 2(a) of the Note is hereby deleted in its entirety and
replaced with the following:
" (a) Maker shall make quarterly mandatory payments on
this Note on each July 31, October 31, January 31 and April 30,
commencing on the first such date to follow the date hereof, in
sixteen (16) installments consisting of a principal payment in
the amount of $________________, plus all interest accrued on the
Principal Amount through the date such payment is made."
From and after ___________, interest will accrue on the amended
Principal Amount set forth above at the rate set forth in the Note.
Except as expressly provided above, the Note is not modified in any
respect, and the Note as herein modified is hereby ratified and confirmed in all
respects.
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IN WITNESS WHEREOF, Maker has executed and delivered this Amendment as
of the day and year first written above.
MAKER
By: ___________________________________
Name:______________________________
Accepted and Agreed:
KORN FERRY INTERNATIONAL
By:___________________________
Name: Xxxxxx X. Xxxxx
-------------------------
Title: VP Finance & CFO
------------------------
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