Exhibit C
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated July 19, 1999, between Webhire, Inc., a
Delaware corporation (formerly Restrac, Inc., the "Company"), and SOFTBANK
Capital Partners LP, a Delaware limited partnership, and fund affiliates
("SOFTBANK").
1. Purchase and Sale
(a) Upon the terms and subject to the conditions of this Agreement,
SOFTBANK will purchase, and the Company will issue and sell to SOFTBANK,
3,960,396 shares of Common Stock, par value $.01 per share, of the Company (the
"Shares") for purchase price of $5.05 per share on the third business day
following the date on which the conditions under Sections 4(c) and 5(c) have
been satisfied, or such other date as the parties may mutually agree (the
"Closing Date").
(b) On the Closing Date, the Company shall deliver to SOFTBANK stock
certificates representing the Shares against payment to the Company by wire
transfer of the aggregate purchase price of $20 million to an account designated
by the Company.
2. Representations and Covenants of the Company
The Company represents and warrants to, and covenants and agrees with,
SOFTBANK as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority to carry on its business as presently conducted. The Company
is duly qualified in good standing to do business in Massachusetts, and there is
no other jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or operations.
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(b) Capitalization. As of the date hereof, the Company has an
authorized capital stock consisting of 30,000,000 shares of Common Stock and
5,000,000 shares of preferred stock, par value $.01 per share. As of July 16,
1999, there were 10,401,549 shares of Common Stock, options for 1,562,777 shares
of Common Stock, a warrant for 114,659 shares of Common Stock and no shares of
preferred stock outstanding. Except as set forth on Schedule 2(b), there are no
options, warrants or commitments of any kind relating to the capital stock of
the Company, including any preemptive or other rights to purchase the Shares.
(c) The Shares. When issued and delivered in accordance with the terms
of this Agreement, the Shares will be duly and validly authorized and issued,
fully paid and non-assessable.
(d) Exchange Act Reports. The Company's reports on Form 10-K for the
year ended September 30, 1998, Forms 10-Q for the quarters ended December 31,
1998 and March 31, 1999, and proxy statement for the stockholders meeting on
March 17, 1999, complied with the requirements of the Securities Exchange Act of
1934 and did not contain any untrue statement of a material fact, or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) Financial Statements. The audited consolidated balance sheets of
the Company as of September 30, 1997 and 1998, and the unaudited consolidated
balance sheet as of March 31, 1999, and the related statements of earnings for
each of the fiscal periods then ended, fairly present the financial position of
the Company as of such dates and the results of its operations for the periods
then ended in accordance with U.S. generally accepted accounting principles
applied on a consistent basis, subject in the case of the interim financial
statements to normal year-end adjustments and the absence of footnotes. Since
March 31, 1999, there has not been any material adverse change in the financial
position or the earnings or operations of the Company that has not been publicly
disclosed.
(f) Intellectual Property. Schedule 2(f) contains a list of all
material patents, trademarks, trade
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names and copyrights used by the Company in the conduct of its business. To the
best of the Company's knowledge, the Company has the valid and enforceable right
to use each of such patents, trademarks, trade names and copyrights and such use
in the conduct of its business does not conflict with valid rights of others.
(g) Year 2000. The Company has taken all actions necessary and adequate
to ensure that all computer software and data processing devices (i) used by the
Company in its management information systems, or (ii) utilized in or by any
Company products or services, including any Company products sold and/or
installed prior to the date hereof, are presently or will become "Year 2000
Compliant" and the Company will not incur costs associated with ensuring such
Year 2000 Compliance in an amount that would reasonably likely be more than
$250,000. "Year 2000 Compliant" means that the computer software or data
processing devices accurately process and store date/time data (including, but
not limited to calculating, comparing, displaying, recording and sequencing
operations involving date/time data) during the twenty-first century and the
years 1999 and 2000, including correct processing of leap year data; provided,
however, that the Company makes no representations regarding any hardware or
operating systems on which its products operate, any third party products that
may operate within the Company's products or any public or common carrier
networks.
(h) Compliance. To the best of the Company's knowledge, the Company (i)
has complied in all material respects with all federal, state, local and foreign
laws, regulations and orders applicable to its business, and (ii) has obtained
all federal, state, local and foreign governmental licenses, registrations and
permits necessary for the conduct of its business, and such licenses,
registrations and permits are in full force and effect.
(i) No Conflict. The execution and delivery of this Agreement and the
performance of the Company's obligations hereunder will not (i) violate or be in
conflict with provisions of any law, rule or regulation, any order, judgment or
award of any court or other agency of government or arbitrator, or any provision
of the Certificate of Incorporation or By-Laws of the Company, (ii) violate, be
in
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conflict with, result in a breach of, or constitute (with or without notice or
lapse of time or both) a default under any indenture, agreement, lease or other
instrument to which the Company is a party or by which it or any of its
properties is bound, or (iii) result in the creation or imposition of any lien,
charge or encumbrance upon any of its properties or assets.
(j) No Consents. Assuming the accuracy of SOFTBANK's representations
and warranties in Section 3(d), no consent, approval or authorization of or
declaration or filing with any governmental authority or other person or entity
on the part of the Company is required in connection with the execution or
delivery of this Agreement or the consummation of the transactions contemplated
hereby, except for (i) the filing required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the expiration or
early termination of the applicable waiting period under the HSR Act; and (ii)
obtaining shareholder approval.
(k) Litigation. There is no litigation or proceeding pending or, to the
best of the Company's knowledge, threatened against the Company or its
properties or business, which is likely to have a material adverse effect on the
financial condition, business or operations of the Company, or which seeks to
prevent the consummation of the transactions contemplated by this Agreement.
(l) Finders. There is no investment banker, broker, finder, consultant
or other intermediary that has been retained by, or is authorized to act on
behalf of, the Company who is entitled to any fee or commission upon
consummation of the transactions contemplated by this Agreement other than fees
which may be due to Bank of America Securities and Xxxx, Xxxxxxxx & Xxxx, which
will be paid by the Company.
3. Representations of SOFTBANK
SOFTBANK represents and warrants to the Company as follows:
(a) Organization. SOFTBANK is a limited partnership duly organized,
validly existing and in good
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standing under the laws of the State of Delaware, with full power and authority
to enter into and perform this Agreement.
(b) No Consents. No consent, approval or authorization of or
declaration or filing with any governmental authority or other person or entity
on the part of SOFTBANK is required in connection with the execution or delivery
of this Agreement or the consummation of the transactions contemplated hereby,
except for the filing required by the HSR Act, and the expiration or early
termination of the applicable waiting period under the HSR Act.
(c) Finders. There is no investment banker, broker, finder, consultant
or other intermediary that has been retained by, or is authorized to act on
behalf of, SOFTBANK who is entitled to any fee or commission upon consummation
of the transactions contemplated by this Agreement.
(d) Investment. SOFTBANK is an "accredited investor" within the meaning
of Regulation D under the Securities Act of 1933 (the "1933 Act"), and is
acquiring the Shares for its own account for investment and not with a view to
resale or distribution.
(e) Access to Information. SOFTBANK has received all the information it
requested from the Company in determining whether to purchase the Shares. It has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the sale of the Shares and the business,
properties, prospects and final condition of the Company.
4. Conditions to Obligations of SOFTBANK
The obligations of SOFTBANK to consummate the transactions contemplated
by this Agreement are subject to the satisfaction at or prior to the Closing
Date of the following conditions:
(a) No preliminary or permanent injunction or other binding order,
decree or ruling issued by a court or governmental agency shall be in effect
which shall have the
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effect of preventing the consummation of the transactions contemplated by this
Agreement.
(b) All representations and warranties of the Company contained in this
Agreement shall be true in all material respects at and as of the Closing Date
as though made at such time, and the Company shall have performed and complied
in all material respects with all covenants and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
(c) The waiting period under the HSR Act applicable to the sale of the
Shares shall have expired or been terminated and the Company shall have obtained
shareholder approval.
(d) SOFTBANK shall have received from Xxxxxxx, Procter & Xxxx, LLP,
counsel to the Company, an opinion, dated as of the Closing Date, addressed to
SOFTBANK with respect to such matters as SOFTBANK shall have reasonably
requested.
(e) All corporate and other proceedings required to carry out the
transactions contemplated by this Agreement, and all instruments and other
documents relating to such transactions, shall be reasonably satisfactory in
form and substance to Xxxxxxxx & Xxxxxxxx, counsel to SOFTBANK, and SOFTBANK
shall have been furnished with such instruments and documents as such counsel
shall have reasonably requested.
5. Conditions to Obligations of the Company
The obligations of the Company to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions:
(a) No preliminary or permanent injunction or other binding order,
decree or ruling issued by a court or governmental agency shall be in effect
which shall have the effect of preventing the consummation of the transactions
contemplated by this Agreement.
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(b) All representations and warranties of SOFTBANK contained in this
Agreement shall be true in all material respects at and as of the Closing Date
as though made at such time, and SOFTBANK shall have performed and complied in
all material respects with all covenants and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
(c) The waiting period under the HSR Act applicable to the sale of the
Shares shall have expired or been terminated and the Company shall have obtained
shareholder approval.
6. Board of Directors
SOFTBANK shall be entitled to appoint two members of the Company's
Board of Directors on the Closing Date. For so long as it owns at least 10% of
the Company's outstanding Common Stock, SOFTBANK shall be entitled to nominate
one director each time a class of directors in which one of its representatives
serves is subject to election. One of the SOFTBANK directors shall be entitled
to serve as a member of the audit and compensation committees of the Board and
both shall have access to any information available to any other director. The
Company shall reimburse all reasonable expenses incurred by the SOFTBANK
directors relating to attendance at Board and Board committee meetings and other
activities on behalf of the Company.
7. Transfer
(a) Transfer Restrictions. SOFTBANK will not make any disposition of
any of the Shares unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by this Section 7(a), and:
(i) There is then in effect a registration statement under the
1933 Act hereof covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(ii) (A) SOFTBANK shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed
statement of the
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circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, SOFTBANK shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the
Company that such disposition will not require registration under the
1933 Act;
provided, however, the conditions in clause (i) and (ii) of this Section 7(a)
shall not apply to any transfer by SOFTBANK to any entity that controls, is
controlled by, or under common control with, SOFTBANK and is not an operating
company.
(b) Legend. SOFTBANK understands that the certificates evidencing the
Shares may bear the following legend:
"These securities have not been registered under the Securities Act of
1933, as amended. Except as otherwise provided in the Stock Purchase
Agreement, dated July 19, 1999, they may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration statement in
effect with respect to the securities under such Act or an opinion of
counsel satisfactory to the Company that such registration is not
required."
8. Registration Rights
(a) Demand Registration. Commencing one year after the Closing Date,
SOFTBANK may make up to two requests, in writing, that the Company use its best
efforts to effect, as expeditiously as possible, the registration of any or all
of the Shares then held by SOFTBANK on a registration statement on Form S-3 (or
any successor form); provided, however, that the Company shall only be obligated
to effect two such registrations under this Section 8(a). The Company may
postpone for up to 180 days the filing or the effectiveness of a registration
statement for a registration pursuant to this Section 8(a) if the Company's
board of directors determines that such registration could reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its subsidiaries to engage in any acquisition of assets (other
than in the ordinary course of business) or any merger, consolidation, tender
offer, reorganization or similar
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transaction. The Company shall not be obligated to effect any registration under
this Section 8(a) within 90 days after the completion of any underwritten public
offering of its stock.
(b) "Piggy-Back" Registration. If the Company prepares to file a
registration statement under the 1933 Act in connection with the public offering
of the Company's common equity securities (including any registration for other
shareholders) the Company shall so notify SOFTBANK and SOFTBANK may have any or
all of its Shares so included in such registration. Notwithstanding any other
provision of this Section 8(b), if the representative of the underwriters
managing such offering advises the Company in writing that the number of shares
of Common Stock proposed to be sold in any such offering or sale is greater than
the number of shares which the representative believes feasible to sell at that
time at the price and upon the terms approved by the Company, there shall be
included in such registration and underwriting (i) first, the number of
securities proposed to be sold by the Company and (ii) second, the number of
shares to be included in the registration and underwriting by selling
stockholders on a pro rata basis based upon the number of shares that each of
such stockholders desires to register.
(c) Expenses of Registration. Except for underwriting discounts and
commissions applicable to SOFTBANK's Shares, the Company shall be responsible
for all expenses in connection with any registration of Shares hereunder,
including, without limitation, all registration, filing, qualification, printers
and accounting expenses, and fees and disbursements of both counsel for the
Company and counsel for SOFTBANK.
(d) Indemnification. With respect to any registration pursuant to this
Section 8, the Company will provide customary indemnification for SOFTBANK and
any underwriter of Shares sold by SOFTBANK (and any of their directors, officers
and controlling persons) and SOFTBANK's right to participate in any underwritten
offering will be subject to its execution of a customary underwriting agreement.
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(e) Assignment of Registration Rights. The rights pursuant to this
Section 8 may be assigned by SOFTBANK together with any transfer of Shares,
provided the transfer complies with the applicable terms of this Agreement. As
used in this Section 8, the term SOFTBANK includes any such assignee.
(f) Restriction on Sales. During the period beginning 10 days prior to
and ending 180 days after the effective date of a registration statement of the
Company filed under the 1933 Act and relating to an underwritten offering by the
Company, SOFTBANK shall not, to the extent requested by the Company and any
managing underwriter of such offering, directly or indirectly, sell, offer or
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to its
affiliates or pursuant to gifts to donees who agree to be similarly bound) any
Shares at any time during such period except Shares covered by such registration
statement.
9. Preemptive Rights
For so long as SOFTBANK holds 10% or more of the Company's outstanding
common stock, the Company will give SOFTBANK notice each time the Company
proposes to offer any shares of, or securities convertible into or exercisable
for any shares of, any class of its capital stock (other than in a transaction
exempt from this Section 9 in the following paragraph). Within 30 days of
receiving such notice, SOFTBANK may agree to purchase or obtain, at the same
price and on the same terms as such offer, up to that portion of such securities
which equals the proportion that the number of shares of Common Stock issued and
held, or issuable upon conversion and exercise of all convertible or exercisable
securities then held, by SOFTBANK bears to the total number of shares of Common
Stock then outstanding (assuming full conversion and exercise of all convertible
or exercisable securities then outstanding).
The preemptive rights in this Section 9 shall not be applicable (i) to
the issuance or sale of Common Stock (or options therefor) to employees,
consultants and directors, pursuant to a stock option or grant plan or similar
benefit program or arrangement approved by the Board
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of Directors, (ii) to the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise, (iii) to the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities outstanding on the date hereof, or as a result of any
reclassification, stock split or stock dividend on Shares outstanding on the
date hereof, or (iv) to the issuance of securities to a strategic partner, a
lender in connection with credit arrangements, financing or similar transactions
or in connection with an underwritten offering.
10. Business Ventures
In the event the Company proposes to enter into (a) a joint venture for
operations in the United Kingdom, Continental Europe or Japan, or (b) a business
transaction with any competitor of SOFTBANK's affiliate ZDNet, in each case it
will so notify SOFTBANK and afford SOFTBANK or one of its affiliates the
opportunity to itself participate in the venture or transaction on terms and
conditions mutually acceptable to both parties.
11. Standstill Agreement
SOFTBANK and its affiliates shall not, directly or indirectly, (a)
acquire beneficial ownership of any Common Stock of the Company or securities
convertible into or exchangeable for Common Stock (except, in any case, by way
of stock dividends or other distributions or offerings made available to holders
generally), or (b) authorize or make a tender, exchange or other offer that
would result in such an acquisition, if the effect of such acquisition would be
to increase SOFTBANK's ownership to a level above 40% of the outstanding Common
Stock. SOFTBANK further agrees that: (a) except by virtue of its representation
on the Board of Directors of the Company, it will not act, alone or in concert
with others, to seek to affect or influence the Board of Directors or the
control of the management of the Company or the businesses, operations, affairs,
financial matters or policies of the Company, (b) it will not initiate or
propose any stockholder proposal or action or make, or in any way participate in
or encourage, directly or indirectly, any "solicitation" of "proxies" to vote or
written consents,
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or seek to influence any person or entity with respect to the voting of or
consenting with respect any of the Company's voting securities, or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934, as in effect on the date hereof) in
any election contest with respect to the election or removal of any of the
Company's directors or in opposition to the recommendation of the majority of
the directors of the Company with respect to any other matter; or (c) join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any other person, for the purpose of acquiring, holding, voting or
disposing of the Company's voting securities, or, otherwise become a "person"
within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934.
12. Confidentiality
SOFTBANK will treat and hold as confidential any and all information
relating to the business and affairs of the Company furnished to it pursuant to
this Agreement and not generally known or available to the public (other than as
a result of breach of this Agreement) and shall refrain from using any of such
information or trading in the Company's securities on the basis thereof except
in connection with this Agreement or as compelled by judicial or administrative
process or by requirement of law. SOFTBANK acknowledges that the Company would
be irreparably damaged if such confidential information were disclosed to or
utilized by or on behalf of persons other than SOFTBANK, the Company or their
respective affiliates.
13. Miscellaneous
(a) Fees and Expenses. Each party shall pay its own expenses incurred
in connection with its execution, delivery and performance of this Agreement,
except that if the Closing is effected, the Company shall reimburse SOFTBANK for
the reasonable fees and expenses of SOFTBANK's counsel.
(b) Survival and Termination. All representations and warranties made
herein shall survive for two years after the Closing Date and shall continue in
full force and effect after delivery of and payment for the
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Shares. All covenants and agreements herein shall survive until the earlier of
five years after the Closing Date or when SOFTBANK ceases to hold at least 10%
of the Company's outstanding Common Stock; provided, however, the covenants in
Sections 6, 9 and 10 shall terminate upon the sale of all or substantially all
of the assets or outstanding capital stock of the Company or any merger or
reorganization including the Company and as a result of which the holders of the
Company's outstanding Common Stock immediately prior to such transaction do not
hold at least a majority of the outstanding voting securities in the entity
surviving such transaction.
(c) Modification and Waiver. No amendment or modification of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provision hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
(d) Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. Any
previous agreement or understandings between the parties regarding such subject
matter are merged into and superseded by this Agreement.
(e) Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(f) Notices. All notices, consents or other communications hereunder
shall be in writing, and shall be deemed to have been duly given and delivered
when delivered by hand, or when mailed by registered or certified mail, return
receipt requested, postage prepaid, or when received via telecopy or other
electronic transmission, in all cases addressed to the party for whom intended
at its address set forth below:
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If to SOFTBANK:
SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
Webhire, Inc.
00 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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or such other address as either party shall have designated by notice in writing
to the other party given in the manner provided by this Section.
(g) Publicity. Until six months following the Closing Date, SOFTBANK
and the Company shall consult with each other before issuing any press release
or otherwise making any public statement with respect to the transactions
contemplated hereby, and shall not issue any such press release or make any such
public statement prior to approval by the other party, which will not be
unreasonably withheld except as may be required by law.
(h) No Implied Rights. Nothing herein express or implied, is intended
to or shall be construed to confer upon or give to any person, firm, corporation
or legal entity, other than the parties hereto and their affiliates, any
interests, rights, remedies or other benefits with respect to or in connection
with any agreement or provision contained herein or contemplated hereby.
(i) Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party except by SOFTBANK to an
affiliate provided the assignee agrees to be bound by the terms of this
Agreement as though named as an original party hereto.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
WEBHIRE, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LLC,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Schedule 2(b)
Pursuant to the terms of the Yahoo! Inc. and Webhire, Inc. Services
Agreement, dated as of June 3, 1999, by and between Yahoo! Inc. and the Company
(the "Yahoo Agreement"), in the event the Yahoo Agreement is renewed on its
first anniversary for an additional year, the Company has agreed to issue to
Yahoo, on June 3, 2000, a warrant to purchase an aggregate of up to one percent
(1%) of the total number of outstanding shares of the Company's Common Stock as
of June 3, 2000 at an exercise price equal to the average closing price of the
Company's Common Stock for the thirty (30) trading days prior to June 3, 2000.
Schedule 2(f)
The Company has the following registered trademark: Restrac.
The Company has applied for the following trademark: Webhire.
The Company has neither applied for nor been granted any patents. In
addition, the Company does not have any registered copyrights though its
software is subject to common law copyright protection.
