Exhibit 10.10
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated July 10, 2000, among Webhire, Inc., a
Delaware corporation (the "Company"), Korn/Ferry International, a Delaware
corporation ("KFI"), SOFTBANK Capital Partners LP ("Softbank"), GMN Investors
II, L.P. ("Gemini"), Aventine International Fund and Bricoleur Partners II, L.P.
(together "Bricoleur" and, together with Gemini, the "Financial Investors" and,
together with KFI, Softbank and Gemini the "Investors").
1. PURCHASE AND SALE
(a) Upon the terms and subject to the conditions of this Agreement,
the Investors will severally purchase, and the Company will issue
and sell to the Investors, 6,808,512 newly issued shares of
Common Stock, par value $.01 per share, of the Company (the
"Shares"), for a purchase price of $2.35 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"). A list of
the Investors and their several purchase obligations is set forth
on Schedule 1(a).
(b) On the Closing Date, the Company shall deliver to the Investors
stock certificates representing the Shares against payment to the
Company by wire transfer of the aggregate purchase price of
$16,000,003.40 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,
the Investors as follows:
(a) ORGANIZATION AND AUTHORIZATION. 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. All actions on the part of the Company necessary for
the authorization, execution and delivery of this Agreement and
the other agreements and instruments contemplated hereby have
been taken, and this
1
Agreement constitutes and the other agreements and instruments
will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or offering creditors' rights and to general equity principles.
(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 5, 2000, there were 14,613,622 shares
of Common Stock, options for 2,388,150 shares of Common Stock,
warrants for 199,218 shares of Common Stock and no shares of
preferred stock outstanding. Except as set forth above or 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, other than
the preemptive rights previously granted to Softbank and stock
options issued in the ordinary course of business.
(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
fiscal year ended September 30, 1999, Forms 10-Q for the quarters
ended December 31, 1999 and March 31, 2000, and proxy statement
for the stockholders meeting on March 15, 2000, complied with the
requirements of the Securities Exchange Act of 1934, as amended,
and the rules promulgated thereunder, 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, 1998 and 1999, and the unaudited
consolidated balance sheet as of March 31, 2000, 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,
2
subject in the case of the interim financial statements to normal
year-end adjustments and the absence of footnotes. Since March
31, 2000 and other than reductions in the Company's cash balances
as a result of operating losses, 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 or
disclosed to the Investors.
(f) INTELLECTUAL PROPERTY. To the best of the Company's knowledge,
the Company has the valid and enforceable right to use each of
the material patents, trademarks, trade names and copyrights used
by the Company in the conduct of its business and such use in the
conduct of its business does not conflict with valid rights of
others.
(g) COMPLIANCE. To the best of the Company's knowledge, the Company
(i) has complied in all material respects with all material
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.
(h) 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 conflict with, result in a breach of, or
constitute (with or without notice or lapse of time or both) a
default under any indenture, lease or other material agreement or
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 material lien, charge or encumbrance upon any
of its properties or assets.
(i) NO CONSENTS. Assuming the accuracy of the Investors'
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
3
Agreement or the consummation of the transactions contemplated
hereby, except for obtaining shareholder approval.
(j) LITIGATION. Except as previously disclosed to the Investors,
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.
(k) 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 U.S. Bancorp Xxxxx Xxxxxxx Inc., which will be paid by the
Company.
(l) LISTING. The Shares to be issued to the Investors pursuant to
this Agreement will be approved for listing on the Nasdaq
National Market on or prior to the Closing Date.
(m) PROXY STATEMENT. The information contained in the proxy statement
delivered to shareholders of the Company pursuant to Section 8
will comply with the requirements of the Securities Exchange Act
of 1934, as amended, and the rules promulgated thereunder, and
will 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.
3. REPRESENTATIONS OF THE INVESTORS
Each of the Investors represents and warrants to the Company as
follows:
(a) ORGANIZATION. The Investor is a corporation or partnership duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or formation, 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
4
or other person or entity on the part of the Investor is required
in connection with the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby.
(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, the Investor who is entitled to
any fee or commission upon consummation of the transactions
contemplated by this Agreement. Other than the fees which may be
due to Credit Suisse First Boston, which will be paid by KFI.
(d) INVESTMENT. The Investor 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. The Investor 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 terms of the transactions
contemplated by the Agreement and the business, properties,
prospects and final condition of the Company.
4. CONDITIONS TO OBLIGATIONS OF THE INVESTORS
The obligations of the Investors to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions (but not (c) or (d) in the case of
Section 6):
(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.
(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.
5
(c) The Company shall have obtained shareholder approval of the
issuance of the Shares pursuant to this Agreement.
(d) The Investors shall have received from XxXxxxxxx, Will & Xxxxx,
counsel to the Company, an opinion, dated as of the Closing Date,
addressed to the Investors in the form attached hereto as Exhibit
4.
(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 KFI, and the Investors shall have been
furnished with such instruments and documents as such counsel
shall have reasonably requested.
(f) In addition, the obligation of KFI to convert its bridge
promissory note and otherwise acquire shares pursuant to this
Agreement shall be subject to the Company receiving at least $7
million from the issuance of shares to the other Investors
pursuant to the Agreement.
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.
(b) All representations and warranties of the Investors 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
Investors 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 them prior to or on
the Closing Date.
(c) The Company shall have obtained shareholder approval of the
issuance of the Shares pursuant to this Agreement.
6
6. BRIDGE LOAN
Within five (5) business days following execution of this Agreement
and thereafter until the Closing Date, KFI and Softbank shall severally lend to
the Company, pro rata based on the number of Shares set forth opposite their
names on Schedule 1(a), up to an aggregate of $6 million, as required by the
Company, upon the terms and conditions set forth in the form bridge promissory
note attached hereto as Exhibit 6.
7. CROSS-PROMOTION AGREEMENT
The Company and KFI shall enter into a Cross-Promotion Agreement prior
to the Closing Date that will contain the following terms:
(a) KFI will be the exclusive top-tier executive search firm to whom
the Company refers clients for search services.
(b) KFI and the Company will commit to cross-promotional activities
for each other's services.
(c) KFI and the Company will explore opportunities to jointly develop
and cross-license technologies.
The Company and KFI agree to negotiate such agreement in good faith
following the execution of this Agreement.
8. SHAREHOLDER APPROVAL
The Company shall hold a shareholder meeting to approve the issuance
of the Shares pursuant to this Agreement as promptly as possible following the
execution of this Agreement and use its best efforts to solicit such approval.
The Company shall also use its best efforts to take all other actions and obtain
all other consents or waivers necessary to enable it to consummate the
transactions contemplated by this Agreement as promptly as possible following
the execution of this Agreement, including ensuring that no state takeover law
or anti-takeover provision of the Company is applicable to the transactions
contemplated by this Agreement.
In that regard, the Company shall prepare and file with the Securities
and Exchange Commission (the "SEC") and all other appropriate governmental
agencies a proxy statement and all other documents or amendments thereto
required or necessary to solicit shareholder approval of the issuance of the
Shares pursuant to this Agreement. The Company shall provide the Investors with
an opportunity to review and comment on such documents and amendments and
correspondence to and from the SEC.
7
The Company shall recommend to its shareholders that they approve the
issuance of the Shares pursuant to this Agreement.
From the date of this Agreement until the earlier of the issuance of
the Shares to the Investors pursuant to this Agreement or the termination of
this Agreement, the Company shall not solicit or negotiate any proposal,
disclosure or communication to the Company of any takeover proposal which would
preclude the consummation of the transactions contemplated hereby or any
alternative transaction to the transactions contemplated by this Agreement. The
Company shall promptly notify the Investors of any such actions taken by third
parties.
Softbank agrees to vote all its shares of Common Stock of the Company
in favor of the transactions contemplated by this Agreement.
The obligations of the Company and Softbank set forth in this Section
8 shall not be affected by the commencement, public proposal, public disclosure
or communication to the Company by any third party of any takeover proposal or
any alternative transaction to the transactions contemplated by this Agreement.
9. BOARD OF DIRECTORS
KFI shall be entitled to appoint one member of the Company's Board of
Directors on the Closing Date, which shall, as of the Closing Date, consist of
six or seven directors including the director approved by KFI. For so long as it
owns at least 5% of the Company's outstanding Common Stock, KFI shall be
entitled to nominate one director each time the class of directors in which its
representative serves is subject to election. The KFI director shall have access
to any information available to any other director, unless counsel for the
Company reasonably determines that such access is likely to waive the Company's
attorney-client privilege or result in a breach of the Board's fiduciary duties.
The Company shall reimburse all reasonable expenses incurred by the KFI director
relating to attendance at Board and Board committee meetings and other
activities on behalf of the Company.
10. RIGHT OF FIRST NEGOTIATION
So long as KFI owns at least 5% of the outstanding Common Stock, KFI
will be entitled to notice (which shall set forth all material information) and
have a right of first negotiation for a period of 10 business days following
such notice in the event that the Company proposes to (i) sell equity securities
of the Company in, or agree to, a transaction that would result in a
8
person (other than Softbank) owning 20% or more of the Company's fully diluted
share capital after the issue, (ii) sell all or substantially all of its assets
to a third party, or (iii) merge with a third party if the Company will not be
the surviving person and the holders of the Company's outstanding voting
securities immediately prior to such merger hold less than a majority of the
outstanding voting securities of the surviving entity.
In the event that the Company receives an unsolicited offer for a
transaction subject to this Section 10 and the Company determines to consider
that offer or other similar transactions, the Company shall send KFI the written
notice specified above promptly after having made its determination to consider
a transaction, and during the negotiation period shall (i) negotiate with KFI in
good faith regarding such unsolicited offer or any offer made by KFI with
respect to a similar transaction and (ii) shall not negotiate or enter into any
agreement with, provide any information to or solicit any offer from any third
party other than KFI. In addition, the Company shall be free to accept or reject
any offers made by KFI during the negotiation period in the sole discretion of
its Board of Directors or a committee thereof. Any KFI representative on the
Company's Board of Directors shall be recused from any discussions or decisions
regarding the Company's negotiations with KFI hereunder. In furtherance of the
foregoing, the Company shall not be deemed to be in breach of this Section 10 if
it subsequently accepts an offer which is equivalent to, or less favorable to
the Company and its shareholders than, an offer made by KFI during the
negotiation period.
11. TRANSFER
(a) TRANSFER RESTRICTIONS. The Investors 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 11(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) The Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company
with a detailed statement of the circumstances surrounding
the proposed disposition, and (B) if reasonably requested by
the Company, the Investor shall have furnished the Company
with an
9
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 (a)
shall not apply to any transfer by the Investor to any entity that controls, is
controlled by, or under common control with, the Investor and is not an
operating company.
(b) LEGEND. Each Investor 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 10, 2000, 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."
12. REGISTRATION RIGHTS
(a) DEMAND REGISTRATION. Commencing one year after the Closing Date,
the holders (other than the Financial Investors) of at least 30%
of the Shares held by Investors other than the Financial
Investors 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 such Investors 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
12(a).
(b) FINANCIAL INVESTOR REGISTRATION. The Company shall:
(i) subject to receipt of necessary information from the
Financial Investors, prepare and file with the Securities
and Exchange Commission (the "SEC"), as soon as practicable,
but in no event later than thirty (30) days after the
Closing Date, a registration statement on Form S-3 (the
"Financial Investor Registration Statement") to enable the
resale of the Shares purchased by the Financial Investors
from time to time through the automated quotation system of
the Nasdaq Stock Market or in privately-negotiated
transactions;
10
(ii) use its reasonable best efforts, subject to receipt of
necessary information from the Financial Investors, to cause
the Financial Investor Registration Statement to become
effective as soon as practicable, but in no event later than
ninety (90) days after the Financial Investor Registration
Statement is filed by the Company; and
(iii) use its reasonable efforts to prepare and file with the SEC
such amendments and supplements to the Financial Investor
Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Financial Investor
Registration Statement current and effective for a period
not exceeding with respect to each Financial Investor's
Shares purchased hereunder, the earlier of (i) the second
anniversary of the Closing Date, (ii) the date on which such
Financial Investor may sell all Shares then held by such
Financial Investor without restriction by the volume
limitations of Rule 144(e) of the Securities Act or (iii)
such time as all Shares purchased by such Financial
Investors under this Agreement have been sold pursuant to a
registration statement or otherwise transferred.
(c) The Company may postpone for up to 180 days the filing or the
effectiveness of a registration statement for a registration
pursuant to Section 12(a) or Section 12(b) 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 transaction. The Company shall not be
obligated to effect any registration under Section 12(a) within
90 days after the completion of any underwritten public offering
of its stock.
(d) "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 the Investors (other than the Financial
Investors) and such Investors may have any or all of
11
its Shares so included in such registration. Notwithstanding any
other provision of this Section 12(d), 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.
(e) EXPENSES OF REGISTRATION. Except for underwriting discounts and
commissions applicable to the Investors' Shares, the Company
shall be responsible for all expenses in connection with any
registration of Shares hereunder (other than underwriting
discounts and commissions), including, without limitation, all
registration, filing, qualification, printers and accounting
expenses, and fees and disbursements of both counsel for the
Company and counsel for the Investors.
(f) INDEMNIFICATION. With respect to any registration pursuant to
this Section 12, the Company will provide customary
indemnification for the Investors and any underwriter of Shares
sold by the Investors (and any of their directors, officers and
controlling persons) and the Investor's right to participate in
any underwritten offering will be subject to its execution of a
customary underwriting agreement.
(g) ASSIGNMENT OF REGISTRATION RIGHTS. The rights pursuant to this
Section 12 may be assigned by an Investor together with any
transfer of Shares, provided the transfer complies with the
applicable terms of this Agreement. As used in this Section 12,
the term Investor includes any such assignee.
(h) RESTRICTIONS ON SALES. During the period beginning 10 days prior
to and ending 90 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, KFI 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
12
dispose of (other than to its affiliates or pursuant to gifts to
donees who agree to be similarly bound) and Shares at any time
during such period except Shares covered by such registration
statement.
13. PREEMPTIVE RIGHTS
For so long as KFI holds 5% or more of the Company's outstanding
common stock, the Company will give KFI 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 13 in the following paragraph). Within 30 days of receiving
such notice, KFI 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 KFI 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 13 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 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 upon the
exercise of warrants or options or pursuant to the conversion or exercise of
convertible securities outstanding on the date thereof, (iv) as a result of any
reclassification, stock split or stock dividend on Shares outstanding on the
date thereof, (v) to the issuance of securities to a strategic partner other
than a KFI Competitor (as defined below) or Jobtrak Corporation, (vi) to a
lender in connection with credit arrangements, financing or similar transactions
or (vii) in connection with an underwritten offering. For purposes of this
Agreement, KFI Competitor shall mean any of: Xxxx Xxxxxxx, Xxxxxxxx & Struggles,
TMP Worldwide, Xxxxxxx Xxxxxxxx Assoc. and Xxxxxxx Xxxxxx and any other top tier
firm that is similarly a significant competitor of KFI in retained executive
search services that is added to such list by KFI in writing and is consented to
by the Company, which consent shall not be unreasonably withheld.
13
14. STANDSTILL AGREEMENT
KFI 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 KFI's ownership to a level above 30% of the outstanding Common Stock
(other than as a result of the exercise of preemptive rights under Section 13).
KFI further agrees that, except by virtue of its representation on the Board of
Directors of the Company: (a) 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, 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 become a "person" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, with any person other than an affiliate of KFI
for the purpose of acquiring, holding, voting or disposing of the Company's
voting securities.
The provisions of this Section 14 shall not limit KFI's ability to
negotiate with the Company pursuant to Section 10. In addition, in the event
that the Board of Directors of the Company shall approve or recommend a
transaction described in clauses (i) through (iii) of Section 10 with a party
other than KFI, then KFI shall be permitted to make and consummate a competing
transaction proposal to or with the Company, its Board of Directors or its
shareholders; provided, however, that the Company shall have no obligations to
KFI to accept or consider such proposal.
14
15. CONFIDENTIALITY
Each Investor 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. Each Investor
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
the Investors, the Company or their respective affiliates.
16. MISCELLANEOUS
(a) FEES AND EXPENSES. The Company shall pay its own expenses
incurred in connection with its execution, delivery and
performance of this Agreement, including the reasonable fees and
expenses of KFI'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 Shares. All covenants and agreements herein shall
survive until the earlier of five years after the Closing Date or
when KFI ceases to hold at least 5% of the Company's outstanding
Common Stock; PROVIDED, HOWEVER, the covenants in Sections 8, 10,
13 and 14 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
15
subject matter hereof. Any previous agreement or understandings
between the parties regarding such subject matter are merged into
and superseded by this Agreement; provided, however, that this
Agreement shall not be deemed to supercede the prior purchase
agreement between the Company and Softbank, which remains in
effect.
(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:
If to KFI:
Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16
If to Softbank:
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Gemini:
c/o Gemini Investors LLC
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Bricoleur:
0000 Xxxxxxxxxx Xxxxxx Xxxx #000
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
Webhire, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
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, the
Investors' 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
KFI 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.
18
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/ Gaz Xxxxxxxxxx
-------------------------------
KORN/FERRY INTERNATIONAL
By: /s/ Illegible
-------------------------------
SOFTBANK CAPITAL PARTNERS LP
By: /s/ Xxxxxxx X. Xxx
-------------------------------
GMN INVESTORS II, L.P.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
AVENTINE INTERNATIONAL FUND
By: /s/ Xxxxxx X. Xxxxxxx, CFA
-------------------------------
BRICOLEUR PARTNERS II, L.P
By: /s/ Illegible
-------------------------------
SCHEDULE 1(a)
PURCHASE PRICE SHARES
-------------- ------
Korn/Ferry International $ 8,000,001.60 3,404,256
SOFTBANK Capital Partners LP 4,000,000.80 1,702,128
GMN Investors II, L.P. 2,000,000.40 851,064
Aventine International Fund 1,011,675.20 430,500
Bricoleur Partners II, L.P. 988,325.40 420,564
-------------- ---------
Total $16,000,003.40 6,808,512
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. ("Yahoo") and
the Company (the "Yahoo Agreement"), in the event the Yahoo Agreement is renewed
for an additional year, the Company is obligated to issue to Yahoo 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. The Company has served
Yahoo with notice of its intention to renew the Yahoo Agreement; however, the
Company and Yahoo are presently negotiating revisions to the Yahoo Agreement
which, if implemented, will eliminate the requirement of issuing an additional
warrant to Yahoo.
