EXHIBIT (d)(4)
FORM OF
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of July 16, 2000,
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among Career Holdings, Inc., a Delaware corporation ("Parent"), CB Acquisition
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Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"),
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and the undersigned stockholder (the "Stockholder") of CareerBuilder, Inc., a
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Delaware corporation (the "Company").
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WHEREAS, Parent, Sub and the Company propose to enter into an
Agreement and Plan of Merger dated as of even date herewith (as the same may be
amended or supplemented, the "Merger Agreement") to provide for the making of a
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cash tender offer (as such offer may be amended from time to time, the "Offer")
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by Sub for any and all shares of common stock, par value $.001 per share, of the
Company (the "Common Stock") at the Offer Price (as defined in the Merger
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Agreement) and the merger of the Company and Sub (the "Merger");
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WHEREAS, the Stockholder legally and/or beneficially owns that number
of shares of Common Stock appearing on the signature page hereof (such shares,
as they may be adjusted by any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company (each, an "Adjustment Event")
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being referred to herein as the "Subject Shares"); and
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WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Stockholder enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
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hereby represents and warrants to Parent and Sub as follows:
(a) Authority. The Stockholder has all requisite power and authority
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to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation
of the Stockholder enforceable in accordance with its terms. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, result in any violation of or default (with or without
notice or lapse of time or both) under, any provision of any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Stockholder or to the Stockholder's property
or assets. Except for the expiration or termination of the waiting period
under the HSR Act and informational filings with the SEC, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated hereby.
(b) The Shares. The Stockholder has good and marketable title to the
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Subject Shares, free and clear of any claims, liens, encumbrances and
security interests whatsoever. The Stockholder owns no shares of Common
Stock other than the Subject Shares.
2. Representations and Warranties of Parent and Sub. Parent and Sub
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hereby represent and warrant to the Stockholder that each of Parent and Sub has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and Sub, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Parent and Sub. This Agreement has been duly executed and
delivered by Parent and Sub and constitutes a valid and binding obligation of
Parent and Sub enforceable in accordance with its terms.
3. Covenants of the Stockholder. From and after the date hereof
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through and including the Option Expiration Date, the Stockholder agrees as
follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the approval of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement, provided that the terms of the Merger Agreement shall not have
been amended to adversely affect the Stockholder.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company or any other Takeover Proposal or (ii) any amendment of the
Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
sale, transfer, pledge, assignment or other disposition of, the Subject
Shares to any person other than Sub or Sub's designee or
/1/ Section 1(b) of Xxxxx X. Xxxxxxx'x Stockholder Agreement reads as follows:
(b) The Shares. The Stockholder has good and marketable title to the
Subject Shares, free and clear of any claims, liens, encumbrances and security
interests whatsoever. The Stockholder owns no shares of Common Stock other than
the Subject Shares, except 111,555 shares owned by the Stockholder. In addition,
400,000 shares are held of record by the Stockholder's adult children.
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(ii) enter into any voting arrangement, whether by proxy, voting agreement
or otherwise, in connection, directly or indirectly, with any Takeover
Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or encourage
the submission of any Takeover Proposal or (ii) directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Takeover Proposal in any manner
inconsistent with the provisions of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the
Stockholder shall tender pursuant to the Offer, and not withdraw, all of
the Subject Shares.
4. Further Assurances. The Stockholder will, from time to time,
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execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent or Sub may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement.
5. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns and, in the case of the Stockholder, the
heirs, executors and administrators of the Stockholder.
6. Termination. Except as otherwise provided herein, this Agreement
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shall terminate upon the earlier of (i) the Effective Time, and (ii) a valid
termination of the Merger Agreement.
7. General Provisions.
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(a) Expenses. Except as otherwise expressly provided in the Merger
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Agreement, each party hereto shall pay its own expenses incurred in
connection with this Agreement.
(b) Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state thereof having jurisdiction,
this being in addition to any other remedy to which they are entitled at
law or in equity. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the District of
Delaware in any action, suit or proceeding arising in connection with this
Agreement and agrees that any such action, suit or proceeding shall be
brought only in
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such courts (and waives any objection based on forum non conveniens or any
other objection to venue therein). Each party hereto waives any right to a
trial by jury in connection with any such action, suit or proceeding.
(c) Notice. All notices, requests, demands and other communications
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hereunder shall be deemed to have been duly given and made if in writing
and if served by personal delivery upon the party for whom it is intended
or if sent by telex or telecopier (and also confirmed in writing) to the
person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
(i) if to Parent or Sub, to:
Career Holdings, Inc.
c/o Tribune Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to:
XxxxxxXxxxxx.xxx, Inc.
00 Xxxx Xxx Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Facsimile: 000-000-0000
and to:
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 312-853-7036
and to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
One Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
(ii) if to the Stockholder, to:
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with a copy to:
(d) Parties in Interest. This Agreement shall inure to the benefit of
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and be binding upon the parties named herein and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer upon any Person other than Parent, Sub or the
Stockholder, or their permitted successors or assigns, any rights or
remedies under or by reason of this Agreement.
(e) Entire Agreement; Amendments. This Agreement contains the entire
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agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. This
Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
(f) Headings. The section headings herein are for convenience only and
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shall not affect the construction of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same
document.
(h) Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
(i) Capitalized Terms. Capitalized terms not otherwise defined in this
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Agreement shall have the meanings set forth in the Merger Agreement.
(j) Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated hereby are not affected in
any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement may be consummated as originally
contemplated to the fullest extent possible.
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9. No Limitations on Actions of the Stockholder as a Director.
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Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Stockholder to take
or in any way limit any action that the Stockholder may take to discharge the
Stockholder's fiduciary duties as a director of the Company./2/
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/2/ This Section 9 does not appear in the Stockholder Agreements of Xxxxx X.
Xxxxxxxxxx, Xxxx X. Xxxxxx, Xxxxxxx Xxxxxxxxx and Xxxx X. Xxxxxx
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IN WITNESS WHEREOF, each of Parent and Sub has caused this Agreement
to be signed by its officer thereunto duly authorized and the Stockholder has
duly signed this Agreement, all as of the date first written above.
CAREER HOLDINGS, INC.
By: _______________________________
Name:
Title:
CB ACQUISITION CORP.
By: _______________________________
Name:
Title:
STOCKHOLDER
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Number of shares of Common Stock
owned by the Stockholder on the date
hereof:
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SCHEDULE
List of Parties to the Stockholder Agreements and Shares Held as
Described in Exhibit (d)(4)(A) to this Schedule TO.
Stockholder Shares Owned
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New Enterprise Associates VI, Limited
Partnership 3,930,446
NEA President's Fund, L.P. 78,947
NEA Ventures 1996, L.P. 13,158
Xxxxxx X. XxXxxxxx 3,100,540
Xxxxxx XxXxxxxx Bypass Trust 250,000
Xxxxx X. Xxxxxxxxxx 693,750
FBR Technology Venture Partners 686,699
Xxxxx X. Xxxxxxx 619,480(1)
Xxxxxxx Xxxxxxxxx 494,480
Xxxx X. Xxxxxx 376,000
Xxxx X. Xxxxxx 504,703
(1) 467,925 shares subject to Stockholder Agreement.
The number of shares is as reported by each stockholder in
each stockholder's respective Stockholder Agreement.
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